Final farewells deserve Charter protection

Kimberley Taylor was denied the right to travel to her mother’s funeral during a COVID lockdown

There has been no shortage of discourse surrounding the impact of COVID-19 on Canadians’ Charter rights. One such discussion happened because of a 2020 Supreme Court of Newfoundland and Labrador decision, Taylor vs. Newfoundland and Labrador.

The plaintiff, Kimberley Taylor, sued the province of Newfoundland and Labrador after being denied a travel exemption to attend her mother’s funeral and grieve her passing at the height of COVID-19 restrictions. While the court decided that Taylor’s right of mobility had been justifiably infringed under Section 1 of the Charter, it decided that Taylor’s right to liberty under Section 7 was not engaged at all.

In doing so, the court missed a valuable opportunity to meaningfully explore Section 7’s right to liberty. Section 7’s protection is engaged whenever a person makes what can be considered a “fundamentally personal choice.” You could certainly argue that making the choice to bid your mother a final farewell shortly after her passing qualifies as precisely the kind of choice Section 7 should protect.

The fundamental personal choices that Section 7 protects are those choices that go to the core of what it means to enjoy individual dignity and independence from state interference. Section 7 does not protect every mundane personal choice an individual makes.

FUNDAMENTAL CHOICE

While the court in the Taylor decision notes that there is not yet a test for what constitutes a “fundamental personal choice,” the law concerning equality rights under Section 15 may be of some assistance. Justice Frank Iacobucci, in Law vs. Canada, writes that human dignity refers to an individual’s sense of self-worth; the feeling that one’s life has value, or that one’s aims are worthwhile. As feelings of self-worth are intimately tied to one’s ability to make important life choices, a potential test for Section 7 protection in the Taylor case might look like this:

Is Taylor’s choice to attend her mother’s funeral the kind of choice that seriously impacts her sense of self-worth?

To distinguish Taylor’s case from others where Section 7 was engaged, the Taylor case referenced several major decisions from the Supreme Court of Canada.

In R vs. Morgentaler, it was decided that a woman’s

choice to have an abortion was a fundamental personal choice, given the “profound psychological, economic, and social consequences for pregnant women.”

In R vs. Carter, it was held that the decision to end one’s life was similarly a fundamental personal choice, as such a decision was deemed critical to one’s dignity and autonomy.

The Taylor case also referenced examples where Section 7 was explicitly denied. In R vs. Malmolevine, the court rejected the argument that the choice to smoke marijuana was integral to one’s lifestyle to the degree that it engaged Section 7.

In R vs. Videoflicks Ltd., the court rejected the assertion that Section 7 protected the freedom to conduct business transactions.

‘HALF-BAKED’ ANALYSIS

These distinctions beg the question: are the effects of a denial to attend your mother’s funeral more likely to affect you psychologically and socially, leaving you with the sense you’ve been robbed of your dignity and autonomy? Or are the effects analogous to being denied the freedom to conduct business transactions or smoke marijuana?

Significantly, the Taylor case recognized that final farewells are distinct from mere lifestyle choices or business transactions. Yet, it did not inquire further. Instead, the court’s analysis may be considered, respectfully, “half-baked,” as it has effectively left the choice to wish a loved one a final farewell in a categorical limbo.

Though the choice to attend a funeral is different than the choice to have an abortion or end one’s life, this is not reason enough to discount the intimate connection between human dignity, self-worth and the process of grieving. To wish a loved one a final farewell may be qualitatively different from other recognized fundamental personal choices, but this does not in itself render it insufficient to be deemed as such.

In future cases, courts should consider how such fundamental experiences as grieving and bidding farewell to a loved one may be deserving of constitutional protections. After all, if the Charter is to provide people with the full measure of the fundamental rights enshrined within it, it is to be interpreted generously, and not narrowly.

Eric Gagnon and Chad Laferriere-enns are second-year law students at Robson Hall, the University of Manitoba’s Faculty of Law.