Read this Fairness in Business Ethics Essay: The Canadian Charter of Rights and freedoms has been criticized for its failure to address basic economic rights, its transfer of political debate to the privileged arena of the law, the prohibitive cost of engaging in Charter litigation, and the extent to which it can be so easily used to simply further the interests of the economically powerful.
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Characteristics of Genuine Rights
The four fundamental freedoms as provided by the Canadian Charter of Rights and Freedoms include:
- Freedom of conscience and religion;
- Freedom of thought, belief, opinion, and expression, including freedom of the press and other communication media;
- Freedom of peaceful assembly; and
- Freedom of association (Canadian Charter of Rights and Freedoms, Sec 2).
The first two contain the liberty of an individual to exercise their mental faculties and translate the resulting ideas into words and action.
In contrast to other animals, human beings sustain their lives through deliberate, purposeful, and rational actions. This right must therefore be included in the right to liberty.
The last two principles contain the right to exercise a person’s liberty in association with others. Thus, it would rather be strange if an individual was permitted to say whatever he or she felt like or did whatever they wished, so long as they did this in isolation [without association with anybody else].
When two or more individuals assemble with others, they-in an individual capacity as individuals-exercise their separate rights of liberty, and therefore there is no new right that is accorded applying to the group.
The right to liberty necessarily includes the right to associate and contract with others; this includes the right of an individual or a group of persons to enter into voluntary agreements with the intent of exchanging goods or services, or for mutual efforts that aim at achieving a common goal.
This cannot be effective unless there is a legal framework that permits persons to reliably expect the full achievement of contractual exchanges they negotiate with other individuals.
This right is intertwined with the right to life and liberty and thus it would be contradictory to concede these rights without providing the right to associate and contract with others.
Justice ethics theory and definition
When exercising the right to life and liberty in a natural course, individuals often accumulate property of some sort, even if it is merely basic needs such as food and clothes.
Depriving them of this property is equivalent to depriving them of that portion of life that they spend in the process of acquiring this property. Therefore, the last two principles can be integrated to form the category of economic rights.
Treatment of Economic Rights by the Courts
Section 7 of the Canadian Charter of Rights and Freedoms guarantees “the right to life, liberty and security of individuals and that the right not to be deprived thereof except in accordance with the principles of fundamental justice”.
However, on many occasions, the Supreme court of Canada has repeatedly held that the charter does not include any economic rights among the rights guaranteed by section 7. For instance, in 2005, the Chaoulli decision was held that:
The argument that “liberty” includes freedom of contract…is novel in Canada, where economic rights are not included in the Canadian Charter…” Chaoulli v. Quebec (2005)
The Irwin Toy ruling also demonstrated a decidedly negative attitude of courts towards the presence of and application of economic rights.
There is no satisfactory explanation that has been provided by the Canadian courts for their apparent contempt towards the existence and application of economic rights.
After the enactment of the Charter in 1982, and its coming into effect in 1985, the word Liberty was not clearly defined. The Charter, therefore, gave courts a blank sheet of paper to write on. It did not have any scheme of the object as to how liberty was to be narrowed down from its broadest meaning, or its ordinary meaning.
As a matter of fact, there is no part of the Charter that indicates that freedom of property and contract should not form part of liberty. However, the courts have imposed such bottlenecks upon themselves.
The scheme of the Charter of Rights and Freedoms was supposed to be straightforward. Lawmakers are therefore supposed to respect these rights and hence refrain from enacting laws that violate these freedoms.
In the event that a law was enacted and infringed on the guaranteed rights, there is still a chance that such laws could be found constitutional if they were in accordance with other requirements of the charter, i.e. the provisions of section 1; which states that:
“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (Beaudoin & Ratushny, 1989).
Therefore, any law enacted that violated this section guarantees life, liberty or security of a person would have to pass the test as ruled by the court: whether it was within a reasonable limit that could be justifiable in a free and democratic society.
Inhibitive Socio-Economic Litigation
Within or without the Charter of Rights and Freedoms, there is no explicit right to publicly funded legal litigation aid under the Canadian Charter of Rights and freedoms.
However, the Supreme Court has recognized the right to state-funded legal counsel where it is necessary to ensure that the decision impacting on a person’s life, liberty and security is in accordance with the principles of fundamental justice.
In G. (J.) case, it was held that failure by the state to provide publicly funded legal representation in the child protection proceedings was an infringement of low-income parents’ security of a person under Section 7.
In the case, Jeanine Gordin faced the threat of losing parental custody of her children based on the evidence that her capacity as a parent was unfit as indicated in fifteen affidavits presented by three lawyers acting on behalf of the government.
The chief Justice ruled that ‘without the benefit of a counsel, the appellant would not have been able to effectively participate at the hearing… Thereby threatening to violate both the appellant and her children’s rights to security as provided by section 7.
Interests of Economically Powerful
The case of Khadr v. Canada (Prime Minister) sheds some light on how the Canadian Charter of Rights and Freedoms can be subjectively interpreted to further the interests of economically powerful persons in the society and deprive the “ordinary” citizens of their rights.
- Omar Khadr is a 15-year-old Canadian citizen who was taken as a prisoner in Afghanistan by the American armed forces in 2007, as part of the military action against the Taliban and the Al-Qaeda terror group.
- Khadr was then taken to Guantanamo Bay Prison Camp.
- In 2003-2004, Khadir was interviewed by the officers from the Canadian Security Intelligence Service at the Bay for law enforcement reasons.
- Through interrogation, the officers were made aware of the fact that Mr. K had been subjected to sleep deprivation technique which is used by the US security officers to reduce the resistance of inmates to interrogation.
The Supreme Court of Canada held that the interrogation process used by the US forces at the bay was a clear violation of Canada’s International Human Rights Obligations (Canada (Justice) v. Khadr, 2008).
The SCC ordered that, under s. 7 of the Canadian Charter of Rights and Freedoms, the Canadian government provide all materials and documents that may be relevant for the case to a Federal Court Judge.
The FCA upheld the order, holding that under section 7 of the Charter, Mr. Khadr’s rights had been breached during the interrogations by the Canadian security agents. The government then appealed this decision to the Supreme Court of Canada.
The Supreme Court of Canada unanimously ruled that under s.7 of the Charter, Mr. Khadr’s rights were breached during interrogations by the Canadian security agents at Guantanamo Bay.
Further, the court removed the original order requiring the Federal Court to repatriate Mr. K, transferring the mandate of the next course of action to the federal government.
The Supreme Court held that there was a strong link between the federal government’s involvement in an illegal interrogation process and the infringement on Mr. Khadr’s liberty and security. As such, Canada participated in contravention to its human rights obligations.
Mr. Khadr was a minor at the time of detention and was interrogated, without the service of his lawyer, by the Canadian security officials at the Bay on full knowledge that he had been subjected to sleep deprivation.
The court held that Mr. K’s repatriation to Canada would be a reasonable remedy for the breach of his rights, given that as he continued to stay at the bay his rights were being breached.
Discussion on Common Good Approach
The Omar Khadr issue and how it was handled presents a case of infringement of fundamental rights and freedom under the Charter of Rights and Freedoms Section 7.
The fact that the accused was still a minor upon his capture presents another dimension of the case; child abuse and torture committed before the eyes of the world.
This case also reveals serious issues in legal institutions in Canada. The partisan stance taken by the Canadian Prime Minister on the case and the Department of Justice regarding a person who was a minor (child) at the time he was incarcerated is a clear misinterpretation of the law and application of the law in a manner that favors certain factions at the expense of critical human rights.
The most alarming and disconcerting issue is the unwillingness of the Canadian Supreme Court to uphold and adhere to the rule of law, instead of exercising only a supervisory role in legal matters that calls for its guidance in interpretation.
In the case, the decision made was unanimous, meaning that there was no even a single judge who bothered to write a dissenting point of argument.
This, therefore, reflects on a legal system that has deviated from its fundamental task of interpreting and implementing the rule of law and ensuring that the rights and freedoms of the Canadian citizens are upheld, and instead manipulated the loopholes in the Charter of Rights and Freedoms to provide justice in a skewed manner.
Conclusion of Justice and Fairness Essay
Courts in Canada have the mandate to interpret and apply essential rights for the existence of individuals; such rights as the right to security and economic liberty.
These rights ought to be consistently aligned with international human rights, and with an all-inclusive approach to the interpretation of the Canadian Charter of Rights and Freedoms in a manner that provides protection to all citizens irrespective of their economic or social status. These courts are also required to provide remedies to violations of social and economic rights.
However, there has been a myriad of accusations and counter-accusations on the Canadian Charter of rights and Freedom on its inability to address basic economic rights and its prohibitive litigation costs.
To some extent, we have found through this discussion that the Charter in itself fails to substantively define economic rights.
This is can create a loophole through which the judiciary can take advantage of the omission of an express definition of this term to infringe on the rights and freedoms of the marginalized in the society.
The case of Omar Khadr v. Prime Minister presents a typical scenario under which the court has failed to give directions to the government about the rights of its citizens, and in the process giving the government the mandate to act on what it deems fit.
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References on Fairness & Justice in Business
- Austin v. Goerz, (2007) BCCA 586 (CanLII)
- Beaudoin, G.A. & Ratushny, E. (1989). The Canadian Charter of Rights and Freedoms 2nd ed., Carswell, Toronto.
- Canada (Prime Minister) v. Khadr, (2008).
- Chaoulli v. Quebec (Attorney General), (2005). SCC 35.
- Chapter 4. The Constitution of Canada.