CLAW326, Module 2 - Introduction PDF

1/21/24, 12:54 AM CLAW326, Module 2 - Introduction Introduction The Charter protects various rights and freedoms against unjustified government infringements. In this module, you will learn that the Charter can be used to challenge only government action (as opposed to a private action). For our pur...

1/21/24, 12:54 AM CLAW326, Module 2 - Introduction Introduction The Charter protects various rights and freedoms against unjustified government infringements. In this module, you will learn that the Charter can be used to challenge only government action (as opposed to a private action). For our purposes being healthcare, the Charter may be and is used to challenge health-related laws and actions of government bodies, such as federal and provincial/territorial health departments or local health authorities. We will look at how the Charter applies to institutions; publicly funded hospitals are only subject to the Charter in certain ways; and private bodies are not subject to the Charter. We will also look at whether the Constitution and the Charter specifically protect any health-related right(s), and the role of courts insofar as the Charter is concerned. Topics and Learning Objectives Topics Overview of the Constitution Federal Jurisdiction Provincial/Territorial Jurisdiction Overview of the Charter and its Role in Healthcare Delivery Learning Objectives By the end of the module, you should be able to: Distinguish the differences and overlap in federal and provincial/territorial jurisdictions of the Constitution Describe the constitutional provisions with respect to the delivery of healthcare services Discuss differences between rights and freedoms Analyze judicial findings from court decisions https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=2&p=179975 1/16 1/21/24, 12:54 AM CLAW326, Module 2 - Introduction Compare, contrast, and discuss the constitutional aspects regarding the delivery of healthcare Module To-Do List Here is a summary of important learning tasks that you should complete in this module: Complete the required readings listed in this module Study Module 2 material and complete the non-graded activities it entails Complete the graded Discussion Board Activity listed on the page “Graded Assignments” in this module Readings and Websites Reading Required 1. Auton v. British Columbia 2. Canadian Charter of Rights and Freedoms 3. Chaoulli v. Quebec 4. Eldridge v. British Columbia 5. Joanna Erdman, Vanessa Gruben, & Erin Nelson (Eds.). Canadian Health Law and Policy, 5th ed. (Toronto: LexisNexis, 2017), Chapter 2: Jurisdiction Supplemental 1. Constitutional Statutes Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11, ss.1,7 and 15. https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=2&p=179975 2/16 1/21/24, 12:54 AM CLAW326, Module 2 - Introduction Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11, ss.91 and 92. 2. Federal Statutes Interpretation Act, R.S.C. 1985, c.I-21. 3. Provincial Statutes/Regulations Legislation Act, 2006 c.21, Sched F An Overview of the Constitution Act Under the Constitution Act, 1867 (U.K.), 30 & 31 Vict. c.3, responsibility for the Canadian healthcare system was not specifically mentioned. In 1867 healthcare was primarily a local matter and apparently did not grasp the attention of the government. The Canadian Constitution was repatriated in 1982 by Prime Minister Pierre Trudeau’s government. Repatriation required the promulgation of a statute by the UK Parliament, which incorporated the Canadian statute. Federal and Provincial/Territorial Jurisdiction In general, healthcare in Canada is conceived of as being divided—however unequally—between the federal and provincial/territorial governments. If you need a quick refresher, you can review the basics of Canada’s healthcare system online. Section 92 of the Constitution Act, 1867 deals with provincial powers. Because section 92 covers property and civil rights, provincial taxation, and in Section 92(16) generally all matters of a merely local or private nature in the province, that section has been accepted to grant to the province’s jurisdiction over health products and services in terms of their insurance and supply. Section 91 of the Constitution Act, 1867, which covers federal powers, is taken to grant to the federal government authority over healthcare. The federal powers include the power to make “Laws for the Peace, Order and good Government of Canada in relation to all https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=2&p=179975 3/16 1/21/24, 12:54 AM CLAW326, Module 2 - Introduction Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces,” a power that has been invoked in suspected terrorist situations that have the potential to affect more than one province. Time to Ponder We all experienced the Covid-19 Pandemic. What, if any of the provincial or federal powers could/ have been/ were invoked in an attempt to control its spread? Why or why not? Hint: Read sections 52 of the Constitution Act, 1982 and sections 91 and 92 of the Constitution Act, 1867 before answering this question. There has been a lot written on this topic if you want to research some legal opinions. You should discuss this in your Group Discussion Board for this Module. See the “Graded Assignments” page in this module for more details. Overview – Rights and Freedoms As you can see from your textbook and other readings in this module, the Canadian Charter of Rights and Freedoms (Charter) is part of the Constitution Act, 1982. In fact, the Charter is found in one of the schedules to the Constitution Act, Schedule B. Reading For a discussion of the differences between rights and freedoms, see the Canadian Charter of Rights and Freedoms by the Ontario Justice Education Network and the federal government's Guide to the Canadian Charter of Rights and Freedoms Time to Ponder https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=2&p=179975 4/16 1/21/24, 12:54 AM CLAW326, Module 2 - Introduction What is the difference between a right and a freedom? Do the definitions of these terms differ in law from their common use in everyday language? You should discuss this in your Group Discussion Board for this module. See the “Graded Assignments” page in this module for more details. Examining a Supreme Court Decision Take a look at the Supreme Court of Canada decision in B.(R) v. Children’s Aid Society of Metropolitan Toronto; the material on the Canadian Charter of Rights and Freedoms from the Ontario Justice Education Network; and ss.2 and 7 of the Charter. Case Study The case can be summarized as follows: S.B. was born four weeks prematurely. Within the first few weeks of her life she exhibited many physical ailments and received a number of medical treatments, to which her parents, the appellants, consented. At their request the attending physicians avoided the use of a blood transfusion because, as Jehovah’s Witnesses, the appellants objected to it for religious reasons; they also claimed it was unnecessary. When S.B. was a month old, her haemoglobin level had dropped to such an extent that the attending physicians believed that her life was in danger and that she might require a blood transfusion to treat potentially life-threatening congestive heart failure. Following a hearing on short notice to the appellants, the Provincial Court (Family Division) granted the respondent Children’s Aid Society a 72-hour wardship. At a status review two doctors testified that although the child’s condition had improved, it was still marginal, and they wished to maintain the ability to transfuse in case of an emergency. The head of ophthalmology at the hospital testified that he suspected the child had infantile glaucoma and needed to undergo exploratory surgery within the following week to confirm the diagnosis. This procedure had to be performed under general anaesthetic, and another doctor testified that a blood transfusion would be necessary. The wardship order was extended for a period of 21 days. S.B. received a blood transfusion as part of the examination and operation for the suspected glaucoma. A second Provincial Court order then terminated the respondent’s wardship, and the child https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=2&p=179975 5/16 1/21/24, 12:54 AM CLAW326, Module 2 - Introduction was returned to her parents. The appellants appealed both orders to the District Court, which dismissed the appeal and awarded costs against the Attorney General of Ontario, who had intervened in the proceedings. The Court of Appeal dismissed the appellants’ appeal and the Attorney General of Ontario’s cross-appeal on the issue of costs. This appeal is to determine whether s.19(1)(b)(ix) of the Ontario Child Welfare Act, which defines “child in need of protection,” together with the powers in ss. 30(1)2 and 41 and the procedures in ss. 21, 27, 28(1), (10) and (12), deny parents a right to choose medical treatment for their infants, contrary to s.7 of the Canadian Charter of Rights and Freedoms, or infringe the appellants’ freedom of religion as guaranteed under s.2(a) of the Charter, and, if so, whether the infringement is justifiable under s.1 of the Charter. The issue raised in the cross-appeal is whether the District Court erred in awarding costs against the Attorney General of Ontario. Pause and Reflect Before revealing the answer to the following question, reflect and consider what you feel the answer might be. Click-n-reveal: Why do you think the case is called B.(R) v. Children’s Aid Society of Metropolitan Toronto when the child in question has the initials S.B.? The B represents the child’s last name. Judgments in This Case On the s.7 Charter issue whereby “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice,” as you know, the following four judgments were given in B.(R): https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=2&p=179975 6/16 1/21/24, 12:54 AM CLAW326, Module 2 - Introduction 1. La Forest, L’Heureux-Dube, Gonthier, and McLachlin JJ. held that the parents had the s.7 right to decide on the medical treatment to be given their child and that their right had been infringed; however, the infringement was protected under s.1 (i.e., the state had adhered to principles of fundamental justice—in giving reasonable notice to the parents, etc.—and thus, under s.1, the infringement was valid). 2. Sopinka J. agreed with the four justices named immediately above but said that it was unnecessary to speak of liberty since the right had been violated. 3. Cory, Iacobucci, and Major JJ. wrote that the parents had a s.7 right, but that they had no right to override their child’s right to life and to security of the person; thus, s.7 had not been infringed. 4. Lamer C.J. wrote that the parents had freedoms under s.2 but no rights in regard to liberty interests under s.7; thus, s.7 had not been infringed. The first two of these judgments, as you know from your readings in Module 1, constitute the majority and minority s.7 reasoning, respectively, within the majority judgment of the case—the majority split 4:1. The last two of these judgments constitute the dissent—again, with a split, in this case 3:1. Thus, the judgment was very close, with a 5:4 split; as you know by now, this may suggest an issue of major social concern, and is the usual case in cases heard by the Supreme Court of Canada. The majority split 4:1, and the minority split 3:1. There are, as you can see, many different ways to reason through a judgment. Many issues brought under the Charter are analyzed by the courts under a two-step test. Significantly, the first section of the Charter— s.1—constitutes the second step of this test. Section 1 is the section to which people are referring when they say that the Charter “guarantees” certain rights and freedoms. Section 1 of the Charter We will use s.1 as we begin to apply our knowledge of statutory interpretation. In the previous module, you learned selected rules of statutory interpretation. In this module, we will look at how these rules are applied in step-by-step fashion. There are several significant words and phrases in s.1 of the Charter. Usually in legal analysis, each of these is interpreted separately, before a general interpretation of the section is arrived at. Click-n-reveal: “...guarantees the rights and freedoms...” https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=2&p=179975 7/16 1/21/24, 12:54 AM CLAW326, Module 2 - Introduction The first s.1 phrase we will look at is “rights and freedoms.” (We will leave the word “guarantees” until later.) The discussion question above asked you to discuss these terms in several contexts. The context relevant to the Charter interpretation of “rights” and “freedoms” is primarily legal and secondarily ethical. The word “and” is also significant in statutory interpretation. It is necessary, for effective statutory interpretation, to know the meaning of each of the three words in this phrase. Whenever you see the word “and” in a statute, you know that you are dealing with conjunctive, rather than with disjunctive, elements. That is, both elements are salient. If only one element were covered—that is, if the elements were disjunctive—the word “and” would be replaced by “or.” Let’s take an example outside of health law. Let’s say you are going to the grocery store to purchase fruit. If you have been asked to purchase “apples and oranges,” then you will at least try to purchase both of these types of fruit—the word “and” makes them conjunctive, so you need to buy both. If, however, you had been asked to purchase “apples or oranges,” then you would probably purchase only one of these types of fruit—the term “or” renders them disjunctive, so you do not need both. The word “and” in the phrase “rights and freedoms” in s.1 of the Charter, then, indicates that the Charter deals with both freedoms and rights. Section 1 states further that it “guarantees the rights and freedoms set out in [the Charter] subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” You can see from this that there are limits on the scope of the rights and freedoms covered by the Charter. Let’s take a look at some of those limits. Click-n-reveal: “...reasonable limits...” The first thing to note is that the limits must be reasonable. Pause and Reflect Did all of the justices in B.(R.) agree on the definition of the term “reasonable”? What differences, if any, do you see? With whom, if anyone, do you agree? Why? https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=2&p=179975 8/16 1/21/24, 12:54 AM CLAW326, Module 2 - Introduction Hint: Review the words written in the Charter s.7 majority judgment (of La Forest, L’Heureux-Dube, Gonthier, and McLachlin JJ.) in B.(R.), wherein these judges noted that “[t]he notice the parents received of the wardship application was reasonable in the circumstances.” Click-n-reveal: “...prescribed by law...” The phrase “prescribed by law” is used in s.1 to indicate that any infringement that a court holds to be valid must be in accordance with the law. The law, as you know from Module 1, is comprised of many different areas, comes from various sources, and consists of different types. Thus, the phrase "prescribed by law" is open to differing interpretations. Click-n-reveal: “...demonstrably justified...” This phrase indicates that any prescribed infringement must be held, on evidence, to be justifiable. Again, this is open to interpretation. Click-n-reveal: “...free and democratic society.” The words "free and democratic society" refer to Canadian society. Click-n-reveal: “...guarantees the rights and freedoms...” https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=2&p=179975 9/16 1/21/24, 12:54 AM CLAW326, Module 2 - Introduction Having dealt with “rights and freedoms” and other phrases above, we will now explore the word “guarantees” as it is used in the Charter. Review the words of the court in the last four lines of the summary in B.(R.)—the four lines just before the word “Held.” You will see that the court mentioned that it would first analyze sections 7 and 2(a) of the Charter to see whether they denied rights (s.7) or infringed freedoms (s.2(a)), and then said, “if so, [the court would analyze] whether the infringement is justifiable under s.1 of the Charter.” In other words, denial of rights and/or infringement of freedoms can be found by the court to be justifiable under some circumstances. Pause and Reflect It has been said that the Charter does not really guarantee anything. Do you agree with this statement? Eldridge v. BC Read the case Eldridge v. British Columbia (and all required readings and cases) carefully, with a view to listing the steps through which the judges went to get from the issue (the question) to their conclusion (the answer). The step-by-step reasoning is sequential, though it is rarely written that way in the case law. Thus, as always, you will have to dissect the analysis to carve out the reasons. It is these reasons, this step-by-step analysis, that you will want to understand if you are ever involved in a legal situation. You will want to know why the judges reached the conclusion they articulated. You may even want to know how they got to their conclusion in order to mount opposing arguments. This is a very important case in which the court enlarged upon the general government-based scope of the Charter. In analyzing Eldridge v. BC, the Supreme Court extended the ambit of the Charter beyond government to include a private entity exercising a quasigovernmental function. In Eldridge, as you know from reading the case, the private entity was a hospital, and the quasi-governmental function was a program for hearing impaired persons located within the hospital’s premises. The specific section at issue was s.15(1) of the Charter. The specific issue was whether the failure by the British Columbia government to include sign language interpreters as an insured benefit constituted an infringement of s.15(1) of the Charter. The court here held that it did, and thus that sign interpreters must be included as a health-related benefit under the provincial British Columbia insurance plan at https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=2&p=179975 10/16 1/21/24, 12:54 AM CLAW326, Module 2 - Introduction issue, a right to be able to communicate with one’s health practitioner. As always, however, the importance of the case is not in its conclusion but in the reasoning that led to the conclusion. Auton v. BC Now read the case Auton v. British Columbia carefully, with a view to listing the steps through which the judges in this case went to get from the issue (the question) to their conclusion (the answer). The Auton v. British Columbia case involves a challenge to the BC government’s refusal to fund therapeutic health services for children with autism that not funding these services violated the equality rights of children with autism that are guaranteed in section 15 of the Charter. On November 19, 2004, the Supreme Court ruled that the failure to provide autism-related health services does not constitute a breach of the Charter’s section 15 guarantee. My Take Away The key in these cases is to look at how the Supreme Court of Canada interprets the Charter. The Supreme Court has emphasized discrimination refers to distinctions based on personal characteristics that impose burdens or disadvantages that others do not suffer. Not all distinctions amount to unconstitutional discrimination. The Court seems to look at each situation and conducts an assessment of the claimant in relation to an appropriate comparator group. For example, a person with a disability, who does not enjoy similar access to healthcare compared to persons without a disability, may argue this denial of access amounts to discrimination. Do you see that? Time to Ponder I raised an issue earlier in this module as to whether the Constitution and the Charter specifically protect any health-related right(s), and the role of courts insofar as the Charter is concerned. Thoughts? You should discuss this in your Group Discussion Board for this module. See the “Graded Assignments” page in this module for more details. Test Yourself https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=2&p=179975 11/16 1/21/24, 12:54 AM CLAW326, Module 2 - Introduction Using what you learned in this module, complete the following review challenge. This activity is not graded; however, you can use it as a way to gauge your own learning. 1. Healthcare in Canada falls under: a. Provincial jurisdiction b. Federal jurisdiction c. Territorial jurisdiction d. All of the above Check Your Answer 2. Section 1 of the Charter suggests that: a. Constitutional rights and freedoms are absolute b. Constitutional rights and freedoms can be subject to reasonable limits c. Constitutional rights (but not freedoms) can be subject to reasonable limits d. Constitutional freedoms (but not rights) can be subject to reasonable limits Check Your Answer 3. The Charter can be used to challenge: a. Laws, including health-related laws b. Actions of the federal and provincial/territorial governments c. Actions of federal and provincial/territorial health departments d. Local health authorities e. All of the above https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=2&p=179975 12/16 1/21/24, 12:54 AM CLAW326, Module 2 - Introduction Check Your Answer Summary In this module you learned to differentiate between federal and provincial/territorial jurisdiction in the Constitution. We saw that healthcare is divided between the federal and provincial/territorial governments. You should now be able to describe and distinguish between Charter rights and freedoms. You should also be able to explain s.1 of the Charter and the phrase “reasonable limits prescribed by law” as set out in the Charter. You should also be able to appreciate the various ways in which the Charter can be used to challenge health-related laws and actions of government bodies including federal and provincial/territorial health departments, local health authorities as well as, to some extent, publicly funded health institutions. Up Next Next week we will examine how the Canadian healthcare system is organized, including the role of various levels of government and the regulation and delivery of healthcare services. Graded Assignments Discussion Due: Please post your original thread by Wednesday at 11:59 P.M. so as to provide something for your classmates to respond to and then remember to go back and respond to 2 of your classmates’ postings by 11:59 p.m. Friday for the opportunity to earn full marks Please see the rubric in the Course Outline for marking specifics. Participation: Group Discussion Question – graded https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=2&p=179975 13/16 1/21/24, 12:54 AM CLAW326, Module 2 - Introduction You were asked to ponder four questions as you studied material in this module. Two of those questions have been reproduced here for marking purposes. All 4 questions may be considered for examination purposes. You only need to create one thread in which you may answer both questions. Don't forget to post your answers by Wednesday night so your group mates have something to respond to, and then return by Friday night to post your responses to at least 2 of your group mates answers by 11:59 P.M. Friday. Also remember to use your own words and where appropriate to quote another source, properly cite to avoid plagiarism. Please be aware that instances of suspected plagiarism will be referred to the Academic Integrity Office. It is very important that you submit your own work, in your own words, and give credit to others for anything you wish to include that is not your original work. At no time is the use of AI (Artificial Intelligence) allowed in any assignment or assessment. It is also important to take note that the purpose of this assignment is to evaluate your understanding of this week’s module so please make sure that your answer reflects the information contained therein. In this particular Module that would mean making sure that you are talking about the division of health care powers specifically as described in the Constitution and rights and freedoms as presented in the Canadian Charter of Rights and Freedoms. You only need to create one thread and include your answers to both questions in that thread Discussion Please respond to each of these two questions in the D2L Brightspace group discussion area for this week. 1. We have all been through the Covid-19 Pandemic. What, provincial and federal powers were/ could/ been invoked in an attempt to control its spread? Why or why not? Through your answer I want to see an understanding of the shared powers for health care in Canada as explained in the module. (module page "An Overview of the Constitution Act") 2. In order to explain the difference between a right and a freedom, please provide, in your own words, a.) a definition of a right with an example; b.) a definition of a freedom with an example. c.) How do the definitions of these terms differ in law from their common use in everyday language? (module page "Overview - Rights and Freedoms"). Keep in mind that this question is in relation to the module content dealing with the Charter of Rights and Freedoms as it applies in Canada. Please apply that content in your answer. Required https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=2&p=179975 14/16 1/21/24, 12:54 AM CLAW326, Module 2 - Introduction Individually prepare thoughtful responses to these questions and post them to the “Module 2 - Group Discussion” in D2L Brightspace. Make sure to include the questions with your responses. Post your answers to the questions by Wednesday night. The members of your group will be able to see your answers and you will be able to see theirs. You must go back before 11:59 P.M. on the Friday and post individual, insightful, constructive responses to 2 group member's posts. Reminder Since discussion boards are part of your evaluation it is important not to neglect them. Please review the posting expectations in your Course Outline. All answers must be in your own words. If you wish to make a minor quote from a source please reference the source. If you plagiarize your work, the university will be notified. Please make sure that your active participation in this discussion board adheres to the Toronto Metropolitan University online Etiquette Guidelines listed in your Course Outline. References Acts Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11, ss.1,7 and 15 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11, ss.91 and 92 Interpretation Act, R.S.C. 1985, c.I-21 Legislation Act, 2006 c.21, Sched. F https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=2&p=179975 15/16 1/21/24, 12:54 AM CLAW326, Module 2 - Introduction Case Law Auton v. British Columbia B.(R) v. Children’s Aid Society of Metropolitan Toronto Chaoulli v. Quebec Eldridge v. British Columbia Other Joanna Erdman, Vanessa Gruben, & Erin Nelson (Eds.). Canadian Health Law and Policy, 5th ed. (Toronto: LexisNexis, 2017), Chapter 2: Jurisdiction https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=2&p=179975 16/16