Public Law

Public Law

Administrative law is an area of public law that deals with the relationship between the state and its citizens, and its purpose is to ensure that rules do not infringe on citizens rights. Administrative law regulates the activities of the government to ensure that its laws are consistent with the provisions of the Canadian Charter of people’s rights and freedoms.  A charter is a statement of a bill of rights that highlights the rights and liberties of the public. It is a fundamental legal tool that protects the citizens of Canada from the violations of their rights and freedoms by the state and federal governments. The Charter, enacted in 1982, guards citizens against the powers of the government. This Charter came into existence because the Canadian’s Bills of rights of 1960 was not part of the constitution. Hence, the state did not use it effectively to protect the rights of the people as it could quickly change the laws.

The Canadian Charter has 34 clauses with the first 24 sections outlining its primary protections. They include; democratic rights such as the right to vote, fundamental rights such as the freedom of expression and right to life, legal rights, mobility rights, equality rights, sexual orientation, and the right to education. This Charter applies to the government of Canada, parliament, legislature, and any administrative body. As a result of the introduction of this Charter to the constitution, the courts have a considerable responsibility to determine if the laws are consistent with the bills of rights. The Canadian Charter has a significant impact in the area of criminal law by safeguarding the rights of the accused persons, gay marriages, abortion, sexuality, and marijuana.

The Canadian Charter acts as a promise of the state to its people. In the case of Carter v. Canada, there is the promise of the government to safeguard the lives of the citizens of Canada. The ruling of this case was a game changer for the Canadian movement that fought to allow people to die with dignity. On February 6, 2015, the Canadian Supreme Court struck down a federal law that prohibited physician-assisted dying (PAD) with the argument that the old law infringed on the rights and freedoms of Canadian s as provided in the Canadian Charter. In this case, the plaintiff, Lee Carter believed that the law should allow physician-assisted death with the consent of the patient. On the other hand, the defendant, the Attorney General of Canada, held that the view of physician-assisted death resembles that of causing another person’s death. The Supreme Court of Canada made a final decision stating that as per the constitution, Canadians have a right to choose the assistance of a physician in dying.

In its ruling, the Supreme Court found that the old laws infringed on section seven’s people’s right to life, liberty, and security like the case of Gloria Taylor ailing from a chronic illness. As a result, they denied people the S7 rights to make vital decisions that were significant for them to make the right choices in life and avoid a lot of suffering. Following this ruling, the Supreme Court used the provisions of the Charter to limit its scope of legislation and power. It advocated for the amendment of the law by the parliament regarding the specific clauses surrounding the case. This decision indicates that the Supreme Court can use the Charter to limit their administrative power even if the parliament is involved when the rights and freedoms of the people are in question. By striking down laws that violate the privileges of the public and amending them, indicates how the Charter limits the powers of the Supreme Court.

The opinion of the Legitimacy of the role of courts

When analyzing who and what the Charter applies to, section 32 states clearly that it refers to the government, parliament, and the legislature. It guards the citizens of Canada against the acts by parliament and government that violates their rights. In giving meaning to it, the role of the courts changed from one focused on the division of powers between the provincial governments and the federal state to a newly outlined authority to determine if the laws were consistent with the provisions of the Charter. Thus, the interpretation and enforcement of rules found in the Charter are the legitimate roles of the courts. They have a legitimate purpose of determining clauses and striking down those inconsistent with the Charter. For example, before the establishment of the Charter, it was illegal for people to seek physician-assisted death. But after the Charter came into force, in the case of Carter v. Canada, the Supreme Court struck down this clause and amended a new law that allowed Canadians to seek the assistance of a physician in dying.

In the decision regarding the case of Carter v. Canada, the Supreme Court rightly decided on the matter. It is the responsibility of the courts to protect the citizens’ rights, and in this case, under section seven, the law had deprived an individual’s right to liberty, security, and life. The prohibition of an individual seeking physician assistance death contravenes with the power to freedom, life, and safety of Mrs. Gloria Taylor and other people in her position. First, the rule of physician-assisted death force individuals to end their life prematurely because they feared that they would be unable to do so when they reach a point where suffering was intolerable. Hence, the court found that the life of an individual was at stake. Also, the liberty and security of a person were affected because they lacked the autonomy to make sound decisions in their lives.

Question 2

A bill of rights is a statement that outlines a list of all fundamental rights of the citizens of a country, and its core rationale is to protect those rights against violations from private citizens and public officials. A bill of rights can be either entrenched or unentrenched. A country’s legislature cannot repeal or amend an entrenched bill of rights through the regular procedure; instead, it has to pass through a referendum applicable to the systems of the constitution. The most argued reason for the entrenchment of bills of rights is that it exists to defend the rights of the people from the encroachment by the people in power. One typical expression of entrenchment is the Canadian Charter of rights and freedoms that allow laws to function with respect to the citizens’ rights.

Entrenchment of the bills or rights is desirable because it ensures the stability of the law and protection of its identities. Entrenchment exists to make constitutional rules hard to alter, and for this purpose, it holds high the most fundamentals of human rights. Human rights are essential and everlasting, and hence they must be elevated to a status that is immutable through the process of entrenchment. An entrenchment bill of rights has inspirational and educational value to a nation. It inspires the interest of rights and their acceptance which leads to the public knowing problems facing human rights. Also, entrenchment serves a statement of the goals of the government, and in some instances, it directs the authoritative standard by which to judge the actions of the state. Through entrenchment, a nation can attain significant uniformity of the application of the bills or rights thereby contributing to the unity of a country.

As discussed earlier, entrenched bills of rights are essential to safeguard the rights of the citizens of a country. A question then arises, if entrenchment exists to protect the rights of the minorities or citizens, is it a legitimate objective to protect these rights? No form of government exists legitimately on its own unless it is democratic. A democratic state denotes government by the people or the majority. It follows that people elect their officials and it is their role to be accountable to them in return and carry out their wishes. Ina democratic world, the essential principles are that citizens of a nation are the ultimate authority and equality of people is paramount. A liberal economy also recognizes the moral primacy of an individual’s fundamental rights and freedom.  Thus, an entrenched bill of rights is essential for a liberal-democracy because it places the fundamental rights of the citizens at its core so that they are immutable.

An example of a case that shows how entrenchment of the bill of rights demonstrates the principles of democracy and liberalism is the case of Canada v. Bedford. In this case, Terry Bedford went to court to ask it to strike down three criminal clauses relating to prostitution as they violated the rights of sex workers. These laws prohibited people from keeping bawdy houses where sex workers engage in their activities and communicating with people who practice prostitution in public. In their decision, the Supreme Court found these laws to be unconstitutional and they removed them and drafted new proposals for amendment. Under a liberal-democracy rule, the rights of the minorities are fundamental, and entrenchment of the bill of rights exists to protect these rights. Entrenchment follows the principles of equality, freedom, and holding the citizens of a nation as the ultimate authority. Holding citizens of a country as the ultimate power requires the government to protect their rights and freedoms and strike down any unfair laws that contradict with their rights. In line with the entrenchment of the bill of rights and democracy, the Supreme Court rightfully decided on the case.

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