Canada (Attorney General) v. Bedford, 2012 ONCA ... - York University

Page: 6360.2(f); R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at paras. 84-89; Malmo-Levine, at paras. 78 and 134.[141] The approach urged by the Attorney General of Ontario is, however,inappropriate at the first stage of the s. 7 inquiry. The respondents have allegedthat the legislation interferes with their security of the person. They carried theburden of proving that interference on the balance of probabilities. If they metthat burden, the deprivation is established and the s. 7 inquiry moves to aconsideration of the applicable principles of fundamental justice.If therespondents failed to meet their burden, their s. 7 security of the person claimwould fail. The reasonableness of the policy choices animating the legislationand the reasonableness of the legislation itself are irrelevant to whether therespondents established that the legislation interfered with some component oftheir right to security of the person. The application judge could not decline toenter upon the factual inquiry essential to a determination whether therespondents‟ security of the person claim failed or succeeded.[142] We affirm the application judge‟s finding that the challenged provisions,individually and in tandem, operate to limit the respondents‟ security of theperson. We move now to whether that limit, and the limit on the liberty interest,accord with the principles of fundamental justice.