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The Meaning of "Everyone": Reconsidering the Scope of S

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The Meaning of I The Meaning of "Everyone": Reconsidering the Scope of S. 7 by Liam Black Thesis submitted to the Faculty of Graduate Studies of The University of Manitoba in partial fulfilment of the requirements of the degree of MASTER OF LAWS Copyright © 2018 by Liam Black II ABSTRACT S. 7 of the Canadian Charter of Rights and Freedoms guarantees the right to life, liberty, and security of the person for "everyone". The word "everyone" has been judicially defined as human beings, who are physically present in Canada, regardless of citizenship status. Neither corporations nor fetuses are included in the term "everyone". The leading case on the meaning of “everyone” is Irwin Toy Ltd. Quebec (Attorney General). In this case, the Supreme Court of Canada reasoned that corporations are not "everyone" because corporations are incapable of enjoying the right to life, the right to liberty, and the right to security of the person. The court also concluded that only “human beings” are capable of enjoying these rights. Irwin Toy did not consider whether fetuses are “everyone” but earlier jurisprudence determined that fetuses are not “everyone”. Over the past 30 years, the scope and content of right to life, liberty, and security of the person has been defined by Canadian Courts. For example, the right to life protects individuals from state conduct that causes death or increases the risk of death. The right to liberty provides the right to make personal and fundamental choices about one's life without government interference. The right to security of the person means the right to bodily physical and psychological integrity. This maturation of s. 7 rights has inadvertently undermined the Supreme Court of Canada's reasoning in Irwin Toy because it is no longer clear that only human beings are capable of enjoying these rights. It has become increasingly clear that certain animals are conscious, self-aware, and are capable of making personal choices. Technological progress, particularly in computer science and robotics, means that autonomous and sentient artificial intelligence may soon be on the horizon. If the Supreme Court of Canada's emphasis on capability in Irwin Toy is correct, the word “everyone” can arguably no longer be restricted to human beings. Based on the jurisprudence, the word “everyone” in s. 7 should encompass “all live human beings and all other entities capable of enjoying the right to life, liberty, and security of the person.” This thesis proposes a modified framework for considering whether a non-human entity is capable of enjoying s. 7 and therefore falls within the ambit of "everyone": 1. whether the non-human entity is capable of enjoying the rights to life, liberty, and security of the person; 2. whether the non-human entity is capable of enjoying s.8, s.9, s.10, and s.12 rights; 3. whether the non-human entity has been recognized as a person in other domains of Canadian law; and 4. whether other jurisdictions consider the non-human entity to be a person. This thesis applies this proposed framework to a test case, chimpanzees, in order to demonstrate its rationality, flexibility, and consistency. This thesis also considers four areas where the recognition of non-humans as “everyone” might impact the Charter as a whole. III TABLE OF CONTENTS Introduction .............................................................................................................................. 1 Scope & Limitations........................................................................................................................ 4 Why s. 7? ..................................................................................................................................................4 Why not s. 15? ..........................................................................................................................................7 Why not Consider Specific Violations of S. 7? ...........................................................................................8 Additional Legal Arguments for Animal Rights .........................................................................................8 Feasibility Concerns ..................................................................................................................................9 Counter-Arguments ................................................................................................................................. 10 Legal Theory and Methodology ..................................................................................................... 10 Chapter 1: The Shortcomings of Irwin Toy and the Human-Only Approach ...................... 14 Introduction ..................................................................................................................................... 14 Irwin Toy .......................................................................................................................................... 14 The Problematic Nature of Irwin Toy ............................................................................................. 16 The Primacy of the Capability Argument ...................................................................................... 21 Other Deficiencies in the Human-Only Argument ......................................................................... 23 Contrary to Charter Interpretive Principle, Purposive Interpretation .............................................. 23 Contrary to Principles of Fundamental Justice ............................................................................... 27 Contrary to Liberal-Democratic Society ........................................................................................ 30 Developments in Foreign Jurisdictions .......................................................................................... 31 Developments in Technology ........................................................................................................ 37 Chapter 1: Conclusions ................................................................................................................... 40 Chapter 2: Building a New Definition of “Everyone” ........................................................... 43 Introduction ..................................................................................................................................... 43 “Everyone” in the Charter ............................................................................................................... 43 Appellate Level Jurisprudence ....................................................................................................... 45 Supreme Court of Canada .............................................................................................................. 45 Singh v Minister of Immigration v Employment ........................................................................................ 45 R v Amway Corp ..................................................................................................................................... 45 Borowski v Canada ................................................................................................................................. 47 Slaight Communications Inc. (operating as Q107 FM Radio) v Davidson ................................................. 54 Tremblay c Daigle ................................................................................................................................... 55 Dywidag Systems International Canada Ltd. v Zutphen Brothers Construction Ltd. .................................. 58 R v CIP Inc. ............................................................................................................................................ 59 Appellate Level Decisions ............................................................................................................. 61 Southam Inc. v Director of Investigation and Research ............................................................................ 61 Smith, Kline & French Laboratories Ltd v Canada (Attorney General) .................................................... 62 Dehghani v Canada (Minister of Employment & Immigration) ................................................................. 63 Summary & General Principles ..................................................................................................... 64 Redefining “Everyone” ................................................................................................................... 66 The “Everyone Test” ....................................................................................................................... 70 The Ability to Enjoy S.7 Rights: Life, Liberty and Security of the Person ...................................... 70 The Right to Life ..................................................................................................................................... 71 The Right to Liberty ................................................................................................................................ 75 The Right to Security of the Person ......................................................................................................... 83 The Ability to Enjoy SS. 8, 9, 10 and 12 ........................................................................................ 91 S. 8 ........................................................................................................................................................
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