Use of the Charter for Legislation and Administrative Power

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1)     Using one case example from above, explain how the Supreme Court uses the Charter to ‘limit’ the scope of legislation and/or administrative power in Canada. Do you think this is a legitimate role for the courts to play? If so, why? If not, why? In your own estimation, was the case ‘rightly decided?’

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The case of the Carter v Canada (2015) great example of how the Supreme court used the Charter to ‘limit’ the scope of legislation and/administrative power in Canada. In the fight for doctor assisted suicide, the Supreme court ruled in favour thereby, dismissing the provisions in the Criminal Code.  section 241.2.

The Carter v Canada case demonstrates the power that the charter of rights has on the Canadian law system. Although the federal government didn’t pass the legislation yet, Canadians can have the option to use assisted death under the guidelines that the supreme court under the Carters decision. On June 6, 2016, the legal ban on physician-assisted dying expired.

 In its Feb. 6 decision, the Supreme Court, took the “criminal” view to doctor assisted a suicide and made it appear to be more humane to the patients and to the public. They also made it aware to Canadians and law makers, that patients who were suffering grievous and irremediable illness, they had the right to decide how they wanted to die and that the government had no hand in this decision as long as it followed the Supreme Courts guidelines and it didn’t infringe on the patients charter of rights. Every person has the right to be treated equally and has the right to live their lives.

Even though victory was apparent that now terminally ill patients can now access PAD the other battle is that doctors can refuse a request from a patient. The SCC verdict doesn’t urge physicians to promote a patient dying. It also doesn’t state that doctors have to give information about PAD or suggest a request for assistance to another physician That being said hospitals and other institution also have the power to deny the access to allow physicians assisted dying on their propriety.

The Supreme Court’s verdict falls on the lawmakers and healthcare regulators to opt in or out whether or not the institutions must provide PAD If the law does not specify, if physician-assisted death by hospitals, hospices and other institutions are to be followed and done according to the law, then it will also remain a right, but it might not be accessible for all Canadians.

The physician are able to help the patientto assist him/her  by giving the patients knowledge on ways they could end their own life. Doctors have the power to prescribe or oversee life ending medication such as by injection or through IV to people who request it.

The charter of rights was an important part of what Pierre Trudeau wanted to do for the people of Canada. He believed that a strong democracy needed the protection of people’s rights from the power of the state in its supreme law – the Constitution. One aspect under discussion was making it possible for Canadians to change the Constitution without asking Britain for permission to do so. This seemed an opportune time, from Trudeau’s perspective, to include a bill of rights in a renewed Constitution. Most of the provinces did not agree with Trudeau on including such a bill and years of back and forth between them followed. The contents of the Charter were debated in several meetings and in the meantime, the Canadian public was given the opportunity to have input into its structure and contents. The unsettlement between the Prime Minister Trudeau and the provinces finally came to an end when a deal was made in 1981. In the end, they successfully patriated our Constitution from Britain and added a Charter of Rights and Freedoms to it on April 17, 1982. The result of this contentious time in our history is a Charter that is used as a model by countries all over the world.

The court has a legitimate role to play because it is of the rights and liberty of every person whether or not it is their willingness to live.  In examination of the lawfulness of the case, it is truly “rightly decided” as it is the fundamental justice to provide individuals with their own choice over their health and the right to die. The Charter of Rights has given judges too much power in deciding how and when people with terminal illness should live. They have the power to dedicate how a person should live and telling a person that they can’t die they why they want to die.

The Canadian Charter of Rights and Freedoms is a bill of rights a statement of rights and freedoms that Canadians have benefited from as it was added to the Constitution in 1982. The Charter of Rights is a very powerful legal tool that protect individuals that live in Canada from any one or the government that infrnching on a certain rights and freedom by the provincial and federal government.

Charter is a legal entity that is written by the legislatures and can be described as a doctrine that protects the rights and freedoms of all Canadians on a national scale.

 The Charter does promote the central principles of the rule of law in a meaningful way because it gives all individuals an opportunity to challenge their case on the grounds of the charter.

 Even though the Charter is subject to interpretation by individuals, it still provides an individual with the framework of rights and liberties that they can use as an opportunity to fight for their rights.

Prior to the Charter, the courts didn’t have the power to review the substance of the law and see its legitimacy in a Canadian society. Since the Charter, the courts have the ability to interpret the law and see how certain laws violate the constitution and see what possible solutions the judges can come up with when deciding various cases. The Charter does promote the central principles of the rule of law.

The case of Rodriguez and Carter were quite similar. Both Sue Rodriguez and Gloria Taylor had been suffering from ALS (also known as Lou Gehrig’s Disease), which is a motor neuron disease that naturally degrades one’s ability to move. Both had expressed concerns and worry, that they would not be able to commit suicide and die gracefully when the disease progressed.

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The case of Carter could have profound effects on end-of-life decision-making in Canada. This paper explains the facts and legal reasoning behind the decision in order to help us all understand the case and its implications. First, context is provided for the Carter decision by summarizing Rodriguez v. British Columbia (Attorney General), the 1993 decision in which the Supreme Court of Canada upheld the Criminal Code prohibition against assisted suicide. An explanation of the difference between “physician-assisted suicide” and “physician-assisted dying” follows - an important distinction when considering the potential implications of the decision. Next is a summary of the decisions in Carter of the trial judge, the Court of Appeal, and finally, the Supreme Court of Canada. The paper concludes by highlighting some of the responses by key stakeholders, and notes developments that have occurred since the release of the decision.

 

2) In your own words explain whether or not an entrenched ‘bill of rights’ is desirable? Does an entrenched ‘bill of rights’ (like The Charter) promote the central principles of both liberalism and democracy? If so, how does it accomplish that end? If not, explain how an entrenched “bill of rights” can threaten a liberal-democracy. (Provide at least one case example from above or our text to support your argument.)

The definition of an entrenched bill of rights means be amended or repealed through a country’s legislature thru everyday method as a substitute it requires a great majority of referendum. This is often section of the country’s constitution and therefore difficulty to one-of-a-kind techniques relevant to constitutional amendments.

 It means that simple that there cannot be any changes made to the charter of rights once it has been passed Including these Charter protections in the Constitution, ability they are “entrenched” – all laws created by using the federal or provincial government have to comply with the rights and freedoms protected in the Charter, which allows the government not to have power of the country and its citizens entirely. If they fail to follow the Charter, then a court has the right to decide whether they are being unconstitutional and can take them to court. This is exactlywhat the Supreme Court of Canada did in 2014 when it determined the law prohibiting physician-assisted demise violated part 7, the right to life, liberty and security of the person. It gave the government one year to craft a new law. We are fortunate to have the Charter there to help citizens as it is not for the government nor the judges to decide matters of death in a terminally ill patient.

The influence of the Canadian Charter of Rights and Freedoms and the identification of the Courts is the main protector of our rights and freedoms, has arguably resulted in the elevation of the status of the Courts at the expense of legislatures. Ajzensta claims that not only are Canadians more skeptical and nervous of the ability that parliament has to protect individuals and minority rights, there is also increased cynicism concerning the role of partisan debate in parliament and its goal of creating policies for the greater good of Canadians.

The Charter as it is now, however, greatly enhancing democracy on the whole. Its guaranteed protection of fundamental democratic and minority rights stabilizes democracy.

Allowing various social groups to challenge the law through the Charter further enhances democratic participation. It makes Canadian more democratic in allowing people to have the right to fight for their rights and the rights of their fellow neighbors.

The Charter protects citizens from parliaments who want to systematically infringe upon those rights and freedoms. Other countries can also look to Canada as an example of how democratic stability can be strengthened with a Charter, and as Canadians we have good reason to be proud of our own Charter of Rights and Freedoms.

As Roy McMurtry stated, “An important general principle is that the rights of minorities must be respected in a democracy, and the Charter in most respects is a Charter for minorities” (2016). Everyone is entitled to the same democratic rights and to be equal under the law, which is what the Charter aims to protect.

Citation: 

Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331

McMurtry, Roy. Personal interview. 24 Feb. 2016

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