by Karen Selick, Derek From, and Chris Schafer
“….A constitutional guarantee of liberty, to be consistent with J.S. Mill’s description, should ensure that everyone has the right to freely pursue their own happiness as long as their actions do not harm others. Such a constitutional guarantee would protect individuals from unjustified state inference with their chosen way of life. But there are many ways in which the courts in Canada have permitted the government to impede individual liberty.
For example, the government may confiscate your property without compensation (R. v. Tener). It can force you to have your photo taken even if it conflicts with your deeply held religious beliefs (Alberta v. Hutterian Brethren of Wilson Colony). It can force parents to educate their children in a particular fashion (R. v. Jones). It can force individuals to pay union fees even if they are not union members (Lavigne v. Ontario Public Service Employees Union). It can punish you for putting certain substances in your body (R. v. Malmo-Levine; R. v. Caine). And it can prohibit you from entering into mutually agreeable contracts with other individuals (Reference re ss. 193 & 195.1(1)(c) of Criminal Code (Canada)).
In each of these instances, the government may take these steps regardless of whether anyone is harmed.1 And the government has demonstrated no hesitancy about arguing that its coercive actions further a public good or that it is advancing your interests—whether you recognize it or not. Government acts of this type are an affront to individual liberty. And if section 7 of the Charter had a robust and meaningful guarantee of liberty, each of these government acts would be constitutionally suspect.
By way of illustration, Michael Schmidt, a client of the Canadian Constitution Foundation, has operated a cow-share in rural Ontario since the early 1990s. Cow-shares are contractual arrangements between individuals who co-own cows in common with other owners, and farmers who tend to the cows. The farmer will typically provide food, land, and other necessities of life to the cow, and make the cow’s milk accessible to the owner. In the English Common Law, this arrangement is known as a contract of agistment, with the farmer being called the agister….”