Charter Rights

Charter Rights

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Charter Rights

            In Canada, the rights of individuals are protected under the Canadian Bill of Rights that applies to both federal, as well as provincial territories. These governments are served with the responsibility of protecting rights and freedom of individuals, but also have the power to legislate with an aim of protecting the human rights even at provincial levels considering power to do so is delegated by the federal government. The Bill of rights that was established in 1960 was the first federal law to protect the rights and freedom of its citizens. Rights protected under this law include areas such as employment, provision of services, commercial premises, legal rights and many more. Additionally to this Bill, all the provincial territories have laws that prohibit discrimination in areas such as employment, services provision and facilities where equal rights should be adhered. However, these rights are limited considering they fall under the provincial territories and only qualify as laws, which can be repealed. The human rights of Canadians were protected in the constitution when the Canadian Charter of Rights and Freedom was enacted.

The Charter of Rights and Freedom became part of the constitution, meaning that it took precedence over all other legislations and applies to both the federal and provincial governments. Therefore, when an individual feels that her/his rights have been violated by parliament or a legislature, they have the right to seek help from the court. The court is left with the responsibility of judging whether the rights have been violated according the conflict with the Charter. When found to exist, courts can provide some remedy as appropriate to the individual whose rights are violated by the legislature.

However, it is worth to realize that the Charter does recognize that rights as well as freedom cannot be absolute even in a democratic country. For instance, while the Charter allows people to have freedom of speech, it also recognizes that one cannot spread hate speech or propaganda to slander other people. Therefore, the government can use a legislature to limit the fundamental rights as long as the government shows it is reasonable and justifiable under the law as well as in accordance with the law. The government in most cases does this to balance the interests of the society against the individual interests where some people would want to go overboard. However, it is also worth to recognize that a perfect balance cannot be affected. Therefore, the parliament as well as provincial governments has some limited power to pass legislatures that violate individual rights in order to protect the majority or society. However, the government has to declare that it is passing a law that is not in accordance with the Charter and has to explain itself or provide a justification to the people. In this regard, the government can be in a position to justify the legislation on Medicare.

Your case falls under the equality rights under the section 15 of the Charter. Section 15 protects individuals against inequality, where it states that all individuals are equal before the law and have equal rights to protection from the law as well as equal rights to benefits of it. It also protects against discrimination where it states that people should not be discriminated on the bases of their race, ethnic origin, color, sex, age, mental or physical disability and nationality. Your case falls in the category of discrimination based on age in terms of provision of services. However, it further states in the second subsection that this might not apply to affirmative actions. It states that, “Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, color, religion, sex, age or mental or physical disability,” (justice.gc.ca, 2012).

The legislation falls under the subsection 2 that says any law that is set aside to protect certain people is not included under the protection of equality for all. This means that the laws could favor some people while others are not. This is in recognition of the government that these groups are at a disadvantage compared to other groups within the society. The aim of the government with such a law is to try to put such groups within equality to the others. However, this does not mean that other people do not have some disadvantages. However, this is in recognition to a significant disadvantage of a group, a disadvantage that could affect the majority within this group. Therefore, in creating such legislation, the government is not acting in the interests of an individual. Rather, it is acting in favor of a group of people within a society that are less advantaged due to their status, which in this case is age.

The government recognizes that people at the age of 65 have lower income and require more medical attention compared to others who are younger. This is a recognition that might not apply to all elderly people, but a majority of them. Therefore, the government seeks to protect them and offer them a service that might not be offered to others. The government recognizes that the majority will not afford to pay for pharmaceuticals administered outside hospitals. Therefore, it offers to cover their expenses in order to maintain their health, as well as quality of life. Although your right might be violated, the government is allowed to limit rights when it is reasonable.

When one has or feels that his or her rights are violated, the law offers a chance for one to seek remedies. However, the court reserves the right to prove the case as aforementioned. To get remedies, one has to show that their freedom or right under the Charter has been violated by the government. However, if the limitation has been set out in law, the government as the respondent will also have an opportunity to show that it is a reasonable limit under the section 1 of the Charter. Section 1 of the Charter states that the Charter has guaranteed the rights as well as freedom of all people except under reasonable limits that can be justifiable under a democratic society. Therefore, the critical issue is whether the age cut-off of 65 years to accessing full medical cover is a justifiable limit or it violates the rights to equality for people below the age of 65.

The case hereof is dependent on the justification of the legislation in accordance with the section one of the Charter. The government may be in a position to justify why it is reasonable to offer people at the age of 65 and above a complete medical cover while others do not have such. Under the section 15, one can argue inequality based on poverty where people under 65 with financial difficulties lack the means or resources of gaining access to quality healthcare while people above the age of 65 might have enough resources to access it. Therefore, the government should consider the financial status in covering medical expenses. Another possible case against this legislation is discrimination or inequality based on health of an individual. People under 65 years of age with poor health are left at a disadvantage of accessing quality healthcare considering their health could limit them from making decent incomes. On the other hand, those with good health might not need health services as much as others might need. Therefore, under this situation, the government should consider the health of individuals in order to provide full pharmaceutical cover based on needs rather than age, considering that not all people at a certain age will have similar needs.

Another way of basing the case is found under section 7 of the Charter. This section states that every individual has a right to life, liberty and security of the person. One should not be deprived unless under circumstances justifiable under the principles of the fundamental justice. Under the security of the person, people below the age of 65 with health conditions and inability to access full pharmaceutical cover find their security of person impaired. Therefore, if the government is to protect all people, it needs to consider those people below the age of 65 without enough resources to access pharmaceutical services. Under this section, the government is supposed to prove to a reasonable level that security of people is not violated by the legislation.

The case is quite a complicated one considering the fact that legislation was meant to protect the elderly. In the case of Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 (February 2, 1989), the court held that the decision violated section 15 and was not justifiable under section 1 (Stribopoulos, 2007). This case depended on the definition of discrimination where the court rejected a formal definition that suggested treatment equality based on equal treatment that focused on remedies for discrimination. As such, the court agreed to an approach that was the based on effect rather than treatment of all equally. This should apply to this case where the government should treat people in terms of effect rather than treating all equally.

Under the circumstances in this case, it is possible that the government has violated her rights to accessing full pharmaceutical cover. However, the decision of the court will depend on whether the violation can be justified under section 1 of the Charter as well as subsection b of section 15 that allows violation of certain rights when protecting minorities or less advantaged groups within the society. It is proven justifiable or reasonable; the legislation will still hold ground. However, should it be proven unreasonable, it might be declared unenforceable or if it violates your rights as an individual alone, you will have remedies granted.