Law 2101 Lecture Notes - Lecture 4: Tabula Rasa, Canada Act 1982, Vancouver General Hospital

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9 Oct 2016
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Paul Dimovski
Law 2101
The Canadian Charter of Rights and Freedoms:
What is the Charter?
oA statement of individual and collective rights and freedoms
oPart of the Canadian Constitution (Constitution Act 1982)
oWhat does constitutional status mean?
The 1982 Constitutional Revolution
oPatriated British North America Act from UK parliament, and re-named it
Constitution Act, 1867
Also decided that UK could no longer adopt any measures that would
affect Canadian constitution
oCreated formal constitutional amending formula for the first time (ss. 38-29 of
Constitution Act 1982)
oCreated and entrenched bill of rights into Canadian constitution (Charter of
Rights and Freedoms)
For the first time, Canadian’s could claim fundamental rights in the courts
Significantly increased powers of Canadian judiciary
Section 52
oThe Constitution of Canada is the supreme law of Canada, and any law that is
inconsistent with the provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect
What Does It Mean to Have a Charter Right?
oRights create protected zones for people to act, free of unjustified state
interference
oWhere there is a right, there is a correlative duty on state to respect the right
oSome rights may require the state to take action to secure the benefit of the
right
What sorts of rights does the Charter protect?
oCivil and political rights
oLargely negative orientation – i.e. they limit the exercise of state power
oEconomic and social rights are not specifically protected
What rights does the Charter protect?
oRights are grouper under various headings
Guarantee and Jurisdiction
Fundamental Freedoms
Democratic Rights
Mobility Rights
Legal Rights
Equality Rights
Official Language rights
Minority Education rights
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Paul Dimovski
Enforcement
General
Which of these rights does the Charter Protect?
oA right to property
oA right to education
oA right to healthcare
oHow do you tell if a right is protected by the charter?
oWhat does it mean if a right is not protected by the Charter?
Who is bound by the Charter?
oThe charter applies to Parliament and government of Canada, and legislatures
and governments of the provinces
oI.e. Charter applies to legislatures and executive braches of government,
federally and provincially
oCharter applies not only to the state in a technical sense, but to emanation of
state- agencies, boards, commissions, tribunals, etc.
oApplies to all levels of government including municipal governments
oGovernment for purposes of s. 32
By its very natures or the degree of government control over it
If entity is considered government, all of its activities are covered by the
Charter even if same activity would be considered private if performed by
private body
oNon-government parties performing government actions are bound by the
Charter but only in regard to those actions
E.g., implementation of a specific statutory heme or government
program by private agency
Eldridge v. British Columbia, SCC (1997)
oDeaf medical patients in BC communicate with their physicians through sign
language, with interpreters
oBC government had paid for interpreters, but discontinued service, citing costs.
In effect, sign interpretation service downloaded to hospitals
oTwo Charter questions:
Does Charter apply to Hospital?
Does s. 15 (Equality) protect the claimants?
oStoffman v. Vancouver General Hospital had found that hospitals not, per se, a
state actor, and therefore Charter does not apply
oBut here, BC government (wo whom Charter applies) had downloaded specific
and necessary government program to private entity
oSCC: Charter applies
o“Governments… should not be allowed to evade their constitutional
responsibilities by delegating the implementation of their policies and programs
to private entities”
Who is NOT bound by the Charter?
oPrivate individuals
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I.e. employers, neighbors, landlords
oCorporation, even though created by legislation and regulated by the state
McKinney V. University of Guelph, SCC (1990)
oUniversity professors required to retire at age 65. Challenged university’s
mandatory retirement policy, using s. 15 of Charter
oIssue: Was university a “state actor” to whom Charter applied”
oSCC: No
oWhile universities (and hospitals) are statutory bodies performing public service,
and largely funded by state, they are not part of government
oBoth legally autonomous: own governing bodies, manages own funds, makes
independent decisions on operations
Who may exercise Charter rights?
oPrivate individuals can exercise most rights but some rights are limited to specific
parties
oCitizens
oGroups
oCorporations (person status in law, and can exercise some, but not all, rights)
Notwithstanding Clause
oSection 33(1)
Parliament or the legislature of a province may expressly declare in an
Act of Parliament or of the legislature, as the case may be, that the Act or
a provision shall operate notwithstanding a provision included in section
2 of sections 7 to 15 of this Charter
How do Courts interpret Rights?
oConstitutions are fundamentally different from ordinary legislation
oWritten in general rather than specific language
oDesigned to endure
oDifficult to change
Problems in Interpreting the Charter
oVagueness of rights language
oVagueness necessary to get agreement to adopt Charter
oCharter rights do not in any clear or automatic way
Judicial Duty
oJudges must set aside personal values and decide cases on impartial assessment
oMust consider evidence and argument before them
oJudges are constrained by precedent but must exercise discretionary judgment
Progressive Interpretation
oThe Charter is a “Living Tree”, capable of growth and expansion within its natural
limits
oCan adapt to address situations not contemplated when it was written
oOriginal understanding of those who drafted it, or original meaning of its terms,
is not determinative of how it should be understood
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