Thursday, 2 February 2012

General Reflections on Application of the Charter



If the Charter is designed to guarantee "the rights and freedoms set out in it subject only to such reasonable limits prescribed by law," why shouldn't it apply to private interactions amongst Canadians? Applying the Charter only to state actions artificially limits  the possible remedies open to citizens. In Vriend, an individual had to resort to challenging a provincial statute in order to prevent his employer from discriminating against him based on sexual orientation. Had the provincial human rights statute not made certain prohibitions on discrimination, presumably his employer could have discriminated against him. It does not seem fair that discrimination could be permissible, provided that the government isn't the one doing it.

  The artificiality of the divide between matters which the COR applies, and the sphere which it does not, namely private matters, is a fiction created by the division of powers provided by the Constitution. However, is it still valid to define private interactions as being solely matters of 'local and private in nature,' subject to provincial legislation only? Cases have extended the influence of the COR to the common law (see Dolphin), but is there a need to extent the COR to all require all Canadians to uphold a certain standard of conduct? This is not necessarily in the form of a COR- perhaps an appendix to the COR, directed explicitly to private matters. The COR is intended to guarantee 'rights and freedoms' of Canadian citizens with relation to state action. This seems to be a one sided contract- perhaps it is time to all Canadians held to a similar standard of conduct and accountablility, an added level of responsibility in enjoying the rights of Canadian citizenship.

1 comment:

  1. Awesome! The Constitution really is a "living tree"

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