by The Honourable Brian Peckford
July 19, 2022
Is the Charter Of Rights and Freedoms, As Intended, On Its Deathbed?
The BC Court of Appeal Decision Of July 15 , 2022 , Rejecting Individual Charter Rights Primacy . Must Be Appealed To The Supreme Court Of Canada —This Court of Appeal Decision Is Wrong—It’s The Elected That Makes Policy, Not The Judiciary
The Highest Court In A Province of Canada Has Put The Violation of Individual Rights At The Mercy Of State Legislation in Considering Health Care .
In the case of Cambie Surgeries Corporation V British Columbia (Attorney General) the Court Ruled on July 15 that the Charter Provisions of Life , Liberty and the Security of The Person are not violated . Section 7 says and I quote:
‘7 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. ‘
I quote the Summary of the Court’s decision:
Quote: ‘Held: Appeal dismissed. Chief Justice Bauman and Justice Harris would do so on the basis that although the impugned provisions deprive some patients of their rights to life and security of the person, they do so in accordance with principles of fundamental justice. Although unnecessary to decide the case under s. 1, they agree with Justice Fenlon that, even if the provisions breach s. 7, they are saved by s. 1.
Justice Fenlon, in concurring reasons, would also dismiss the appeal. She would find that the provisions do deprive some patients of their rights to life and security of the person in a manner that is not in accordance with the principles of fundamental justice: the deprivations are grossly disproportionate. However, in her opinion, that s. 7 breach is justified under s. 1 of the Charter.’Unquote
This is how the majority (2 judges) of the Appeal Court view fundamental justice —the state can deprive some citizens of their constitutional rights of life , liberty, and security of the person and still not violate the principles of fundamental justice as it relates to the state breaking its own health wait times that caused injury as a result .
And one judge says that the rights of life , liberty and security were violated in this case but that Section 1 of the Charter allowed the rights to be be violated even though there is no indication that the test of ‘demonstrably justify ‘ was proven by the state or the test ‘ of a free and democratic society ‘ was met by the state.
And as one of the signatories of the Patriation Agreement, later the Constitution Act 1982 in which the Charter of Rights and Freedoms is to be found, The Charter was deliberately intended to protect individual rights and freedoms against the incursions of the state, and could only be violated or overridden in extreme circumstances ——like war or insurrection as it applies to Section 1 ( note Section 4) and in Section 7 —only violated or overridden if the principles of fundamental justice were maintained , not where there is a new formula for how much injury a citizen must endure in health care before a Charter Principle is violated. The majority of the Court’s interpretation of ‘fundamental justice ‘ brings a whole new meaning to the Principle of Fundamental Justice , one contrary to the meaning of what was understood /intended by of authors of the Charter.
But before even letting that sink in —————-or even considering it—
The Court erred ———because the Court did not even consider the two principles that form the framework under which of the Charter is to be considered—the supremacy of God and the rule of law.
The Charter begins :
‘Whereas Canada was founded upon the principles that recognize the supremacy of God and the rule of law: ‘
The first question that has to be asked on Appeal to the Supreme Court of Canada Should Be :
On what grounds , under what authority does The Judiciary Have The Power To Pick and Choose Which Provisions Of The Charter To Use To Render Its Decisions On The Charter, especially as it relates to the framework principles that were meant to guide any interpretation of the Charter?
What Do You Think Was The Authors’ ( First Ministers) Purpose , Intent When They Deliberately Included That Wording At The Beginning Of The Charter?
How can such a decision of the BC Court of Appeal be valid in the absence of consideration of, interpretation of , these framework principles?
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