5. Did Justice Tetley err in applying the wrong test for standing to the applicant with respect to the constitutional rights of consumers?

Part 5 of The Bovine’s countdown to Michael Schmidt’s court appearance today. From the applicant’s factum:

Michael Schmidt will be in court this morning.

Did Justice Tetley err in applying the wrong test for standing?

  • Justice Tetley ruled at paragraphs 81-82 of his decision that Michael Schmidt has no standing to advance charter claims for individuals other than himself.  However, Justice Tetley applied a test for public interest standing, but that test applies only where litigants commence civil actions for declarations regarding the constitutionality of legislation.  It does not apply where individuals are brpight before the courts defending themselves against criminal or regulatory charges.
  • The law is clear that where an individual faces either criminal or regulatory prosecution and does not come to court of his own volition, but because he has been compelled to face charges brought by the state, he has standing to make constitutional arguments against the validity of the legislation even if the constitutional rights upon which he relies are those of persons other than himself.
  • According to Chief Justice Dickson of the Supreme Court of Canada:

Section 52 [of the Charter] sets out the fundamental principle of constitutional law that the Constitution is supreme. The undoubted corollary to be drawn from this principle is that no one can be convicted of an offence under an unconstitutional law. The respondent did not come to court voluntarily as an interested citizen asking for a prerogative declaration that a statute is unconstitutional. If it had been engaged in such “public interest litigation” it would have had to fulfill the status requirements laid down by this Court in the trilogy of “standing” cases (Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138, Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265, Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575) but that was not the reason for its appearance in Court.

Any accused, whether corporate or individual, may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid.”

  • This applies likewise to individuals charged with regulatory offences who are before the court involuntarily.
  • R. v. Morgentaler is an example of a case in which the Charter rights of one group of individuals (i.e., pregnant women desiring abortions) gave a different group of individuals (three male physicians) standing to contest the validity of the law, and the right to a constitutional remedy—namely, a declaration that the law was ultra vires and an acquittal on criminal charges.
  • In R. v. Wholesale Travel Group Inc., a corporation charged with false advertising under the Competition Act was held to have standing to challenge the constitutionality of the statute even though it was the constitutional rights of natural persons, not of the accused corporation, that were relied upon in making the argument of unconstitutionality.
  • Does section 7 of the Charter give consumers the right to determine what foods they put into their bodies?
  • The right to security of the person under section 7 of the Charter includes the right of individuals to make decisions pertaining to their own bodies and their own health.  For instance, in the Rodriguez case, La Forest J. said on behalf of the majority of the Supreme Court of Canada:

In my view, then, the judgments of this Court in Morgentaler can be seen to encompass a notion of personal autonomy involving, at the very least, control over one’s bodily integrity free from state interference and freedom from state-imposed psychological and emotional stress.  In Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), supra, Lamer J. also expressed this view, stating at p. 1177 that “[s]ection 7 is also implicated when the state restricts individuals’ security of the person by interfering with, or removing from them, control over their physical or mental integrity”.  There is no question, then, that personal autonomy, at least with respect to the right to make choices concerning one’s own body, control over one’s physical and psychological integrity, and basic human dignity are encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these.

  • This was echoed by McLachlin J. (as she then was) in the dissenting decision:

It is established that s. 7 of the Charter protects the right of each person to make decisions concerning his or her body:  Morgentaler, supra.  This flows from the fact that decisions about one’s body involve “security of the person” which s. 7 safeguards against state interference which is not in accordance with the principles of fundamental justice.  Security of the person has an element of personal autonomy, protecting the dignity and privacy of individuals with respect to decisions concerning their own body.  It is part of the persona and dignity of the human being that he or she have the autonomy to decide what is best for his or her body.  This is in accordance with the fact, alluded to by McEachern C.J.B.C. below, that “s. 7 was enacted for the purpose of ensuring human dignity and individual control, so long as it harms no one else.”

  • At common law, preceding the Charter, there was a right to bodily integrity and personal autonomy.  Even where the state disagrees with the health regimen chosen by an individual, and even when the individual’s choice is generally regarded as foolhardy, the principles of self-determination and individual autonomy override the state’s interest in the preservation of life and health.  Thus, for instance, in Malette v. Shulman, it was held that members of the Jehovah’s Witness faith are entitled to reject blood transfusions notwithstanding the doctor’s belief that the decision was contrary to the individual’s best interests.
  • In Fleming v. Reid, the Ontario Court of Appeal held that the common-law right to control what happens to one’s body is co-extensive with the Charter right to security of the person:

The common law right to bodily integrity and personal autonomy is so entrenched in the traditions of our law as to be ranked as fundamental and deserving of the highest order of protection. This right forms an essential part of an individual’s security of the person and must be included in the liberty interests protected by s. 7.  Indeed, in my view, the common law right to determine what shall be done with one’s own body and the constitutional right to security of the person, both of which are founded on the belief in the dignity and autonomy of each individual, can be treated as co-extensive.

  • The Fleming v. Reid case involved the right of individuals to refuse psychiatric drugs recommended by their doctors.  The court stressed that “informed consent” must be respected, even if serious risks may result to the individual who is refusing to accept the opinions of experts:

The right to determine what shall, or shall not, be done with one’s own body, and to be free from non-consensual medical treatment, is a right deeply rooted in our common law. This right underlies the doctrine of informed consent. With very limited exceptions, every person’s body is considered inviolate, and, accordingly, every competent adult has the right to be free from unwanted medical treatment. The fact that serious risks or consequences may result from a refusal of medical treatment does not vitiate the right of medical self- determination. The doctrine of informed consent ensures the freedom of individuals to make choices about their medical care. It is the patient, not the doctor, who ultimately must decide if treatment — any treatment — is to be administered.

  • The Fleming v. Reid court also noted:

“The right to personal security is guaranteed as fundamental in our society.  Manifestly, it should not be infringed any more than is clearly necessary. …To completely strip these patients of the freedom to determine for themselves what shall be done with their bodies cannot be considered a minimal impairment of their Charter rights.”

  • The Ontario Court of Appeal also held in R. v. Parker that the right to use marijuana for medicinal reasons is protected as part of liberty and security of the person, despite the general illegality of marijuana.
  • In Canada (Attorney General) v. PHS Community Services Society (the Insite safe drug injection case), the Supreme Court of Canada recognized that the section 7 right of security of the person was engaged when drug users sought to continue injecting illegal drugs into themselves.  For the clients of Insite, the continued consumption of substances generally considered dangerous to human health was actually more healthful than other alternatives.  The particular circumstances and physical needs of some individuals can give them the constitutional right to consume substances generally prohibited by law as dangerous.
  • It is a well-recognized principle of fundamental justice that laws must not be arbitrary.  To avoid being arbitrary, any limitation on life, liberty or security of the person requires not only a theoretical connection to the legislative goal, but a real connection on the facts.  While there is theoretically the possibility that some individuals may become ill from drinking unpasteurized milk, the evidence in this case is that nobody ever has, and that some people believe it has improved their health.
  • Furthermore, the law on what constitutes “arbitrariness” as a principle of fundamental justice is itself unsettled, as the Supreme Court of Canada said in the Insite case.
  • Another well-recognized principle of fundamental justice is that laws must not be overbroad or disproportionate.  If the state, in pursuing a legitimate objective, uses means that are broader than necessary to accomplish its objective, the individual’s rights are limited for no good reason.   In this case, s. 18 of the HPPA prohibits the sale of both raw milk that is unfit to drink and raw milk that is perfectly safe to drink.  Section 18 is overbroad, since s. 17 of the HPPA already prohibits the sale of “any food that is unfit for human consumption by reason of disease, adulteration, impurity or other cause.”

If people would like to show their appreciation for what the Canadian Constitution Foundation is doing for Michael Schmidt and food freedom, their renewed financial support would be welcome. This case takes a lot of resources to handle. Donate here: http://www.canadianconstitutionfoundation.ca/toc.php/40

Michael Schmidt’s court appearance will take place at the Ontario Court of Appeal, Osgoode Hall, 130 Queen Street West (at University), Toronto. Court will start at 9:30 a.m. Spectators are permitted. People who wish to attend should be aware that they will have to go through security to enter the building.


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