This thesis proposes a model for legalized Physician-Assisted Suicide [PAS] for adoption into Canadian legislation. The basis of this model is one which respects the individual freedom to make end-of-life decisions free from state interference. The research herein supports the provisions contained in Oregon legislation where PAS has been legalized on the basis that the Oregon model is consistent with the guarantees afforded under s.7 of the Charter of Rights and Freedoms. Oregon maintains strict regulatory barriers which protect against the threat of abuse which the Supreme Court reasoned in Rodriguez outweighed her s.7 rights to autonomy. This thesis will engage in the theories of Ronald Dworkin who supports the preservation of the sanctity of human life which Sopinka J. held prevailed over s. 7 violations in Rodriguez and seeks a model which respects individual freedom without compromising that sanctity or value of life.

This thesis proposes a model for legalized Physician-Assisted Suicide [PAS] for adoption into Canadian legislation. The basis of this model is one which respects the individual freedom to make end-of-life decisions free from state interference. The research herein supports the provisions contained in Oregon legislation where PAS has been legalized on the basis that the Oregon model is consistent with the guarantees afforded under s.7 of the Charter of Rights and Freedoms. Oregon maintains strict regulatory barriers which protect against the threat of abuse which the Supreme Court reasoned in Rodriguez outweighed her s.7 rights to autonomy. This thesis will engage in the theories of Ronald Dworkin who supports the preservation of the sanctity of human life which Sopinka J. held prevailed over s. 7 violations in Rodriguez and seeks a model which respects individual freedom without compromising that sanctity or value of life.

Liberals claim that the exercise of state power must be justified on terms that all citizens can reasonably accept. They also support democracy. The challenge is to bring these two desideratum in line-- to ensure that democratic deliberations are somehow predicated on claims that all citizens can reasonably accept. Put differently, the challenge is to set the terms of public reason. Liberal philosophers advance grand theories of political justice towards this end. They claim that a reasonable argument in the political sphere is one that conforms to theory x. The difficulty is that there will be those who reasonably reject theory x, preferring theory y or z, or eschewing theory altogether. Pessimism at the prospect of agreement on higher-order theories of justice leads some to advocate simple majority rule. The thesis argues that convergence on higher order theory is not essential to public reason. The Supreme Court of Canada’s method of adjudication under the Canadian Charter of Rights and Freedoms is used as a model. Where basic rights are engaged, or are alleged to be engaged, the Court examines the reasonableness of law and policy using a series of open-ended tests. These tests discipline their deliberations by focusing attention on generally accepted facts and values (notably, the values expressed by the Charter). The thesis contends that the Court’s open-ended, contextual approach can serve as a model for broader public reasoning. The thesis then explores the role of religious arguments within this model. In a polity committed above all to Charter values, what is the place of religion in the justification of law? It is argued that religion is understood to be private and inscrutable under the Charter. This is what justifies the Court’s generous reading of the right to religious freedom. It also justifies our forbidding state coercion in the name of religion. With the preceding ideas in mind, the thesis examines Canadian law and public discourse on the issues of therapeutic cloning (ch.4) and same sex marriage (ch.5).

This study explores the political impact of the Canadian Charter of Rights and Freedoms on the Supreme Court of Canada. This influence is contrasted with the judiciary's historic reluctance to recognize civil liberties, commencing with the position taken by the Judicial Committee of the Privy Council and the cautious reaction of the Supreme Court to the Diefenbaker Bill of Rights. / The treatment of civil liberties under the Charter is considered through a survey of some of the Charter cases addressed by the Supreme Court of Canada. The political consequences of the Court's decisions are examined. Alternative possibilities for the Court's role in Canadian society are considered, including the prospects for entrenchment under the Meech Lake Accord and other recently proposed reforms. / The criticism that too much power is being vested in the "least democratic branch" is addressed and the suggestion that the Charter should be located in the "communitarian tradition of Canadian politics" is appraised. This study reflects upon the theoretical assumptions which underlie the existence of the Charter, as it evaluates the political theory behind differing conceptions of judicial interpretation. This thesis concludes by determining that the Supreme Court has made a positive political contribution to Canadian society.

As with many other disciplines, the study of medicine is being influenced by the change in the cultural make-up of our country. On occasion, conflicts may develop between the personal beliefs of medical students and the training they must undertake in order to become competent and caring physicians. What are the implications for medical school training in terms of the increasing diversity of the individuals applying to, and being accepted into, medical schools across this country? How much should we allow the personal beliefs and values of physicians-in-training to modify the medical education experience as it currently exists? Do we need to accommodate these individual student differences (religious and cultural) when designing and modifying the medical school curriculum? This thesis looks at the requirement for accommodation (as established in human rights legislation) and the rights of individuals entering into medical school training (as guaranteed by the Canadian Charter of Rights and Freedoms) and attempts to balance these individual rights against the goal of a medical school to develop a generic physician who is prepared, at completion of medical school training, to enter into many different post-graduate training programs. Medical school training involves a number of different types of learning including: knowledge acquisition, procedural competence, and the ability to interact in an intimate, yet wholly professional, manner with complete strangers. Current accreditation requirements demand that each medical student achieves a requisite level of knowledge, and the ability to perform certain physical examinations and associated procedures, by the completion of medical school training. Three distinct examples of possible requests for accommodation are examined during this thesis in order to determine if, and when, accommodation is reasonable and achievable. Although it is possible to allow some degree of modification of the medical school training process in order to accommodate religious or cultural beliefs of particular students, this accommodation is currently not possible if bona fide educational requirements are undermined during this accommodation or if accommodation of students would require undue hardship on the part of the particular medical school, staff or other students involved in the training process. Creating a standard process whereby students can request a modification of their involvement in the medical school curriculum (in order to accommodate religious or cultural differences) will facilitate unbiased and reasonable decision-making. This will allow students and faculty to have reasonable expectations about the ability of each individual to be successfully integrated into the medical school training program. It would also be useful and responsible to make it clear to students applying to be admitted to medical school where the limits are with respect to what degree of modification of medical school training is possible. The knowledge and clinical abilities that a student will be expected to master, within a Canadian medical school curriculum, must be consistent with the expectation of non-discrimination, as identified by provincial and national human rights legislation, and with the rights and freedoms as guaranteed by the Canadian Charter of Rights and Freedoms.

No description available.

Reputational interests are protected against defamatory and injurious statements by the common law o f defamation, which permits the targeted individual to recover damages for the injury to his reputation. At the same time, this body of common law sets limits to the constitutional right to free expression of the person who made the penalized communication. However, since s.32(l) of the Canadian Charter of Rights and Freedoms - according to the Supreme Court of Canada - restricts the Charter's application to the actions of legislative, executive and administrative branches of government, the Charter will be at best a bit player in defamation litigation governed by common law rule. This thesis deals with the tension between promoting free speech and protecting a person's reputation, i.e. with the questions whether the common law of defamation has achieved the correct balance between the protection of the individual's reputation and freedom of expression, or whether it needs to be modified in order to better accord with the Charter. A n important component of this thesis is its review of the decision of Hill v. Church of Scientology, where the Supreme Court of Canada addressed the question of whether defamation law needs to be reconsidered in light o f the Charter protection of free expression, and found the balance struck by the current law to be appropriate. A critical look at this decision, and more generally at the law of defamation itself, particularly its presumptions of falsity, malice and damages, will reveal the problems with the common law's resistance to making any major allowance for free expression. The author will argue that the Charter should apply to the common law in the same way as it applies to statutory law and that defamation law in particular would, in all probability, not survive the test under s.l of the Charter, concerning the justification of a limitation to a fundamental right. It will be concluded that the common law of defamation needs to be modified, i.e. that it must accord significantly more weight to freedom of expression in order to be consistent with the Charter. Insofar as the extent of such modification is concerned, the author will propose first of all to give the element of fault a more significant role in the common law of defamation. In addition, she will argue that the common law presumptions should be abolished. In sum, the author's reform proposal requires the plaintiff to prove not only that the words he complains of are defamatory, identify him and are published to a third person, but also that they are false, did indeed cause damage to his reputation and that the defendant acted with fault, i.e. intentionally or negligently, when publishing the defamatory falsehoods.

The advent of the Charter of Rights and Freedoms signaled a new and vastly expanded role for the judiciary. By entrenching our civil liberties into the Canadian Constitution, the courts were given the express authority to override inconsistent statutes. Due to the inherent overlap between law and politics, election law is an area that is particularly sensitive to this recent enlargement of judicial power. Despite this, the courts have scrutinized many areas of election law and many federal and provincial statutes have been fundamentally altered. The purpose of this thesis is to determine whether the courts have developed a uniform theory of judicial review where election law is concerned via four case studies: electoral boundary redistribution, prisoner voting rights, the publication of opinion polls during campaigns and third party spending limits. Through an extensive review of the relevant case law and literature, I conclude that the courts have failed to develop a coherent and consistent theory judicial review regarding the application of the Charter to election law. My analysis reveals that the inconsistencies stem largely from three main sources: first is the failure of the courts to adopt a single vision of what constitutes a fair electoral system; second is that the case studies are dealing with two different sections of the Charter (ss. 2(b) and 3); and third is the Oakes test which has expanded judicial discretion along with the potential for disparity. If consistency is ever going to be achieved, the courts need to adopt a single vision of democracy in Canada. Until then, we are left to guess when our political rights may be justifiably restricted under the Charter.

In 1986, the Supreme Court of Canada cogently summarized various judicial concerns relating to the expansion of public interest standing. In doing so, the Supreme Court invited judges to engage in a purposive and functional enquiry in exercising their discretion to grant access to public interest litigants. That enquiry should take account of the broad social, political and legal factors that provide the backdrop to the constitutional claim. However, both judges and commentators alike have failed to meet this challenge. Instead, they have applied the principles of standing in an increasingly categorical and abstract manner. To this end, they have employed the abstractly defined, directly affected individual without considering who he or she is in the particular circumstances, or what benefits he or she would bring to the litigation process. This is of particular concern when our context is inequality. The increasing abstraction of public interest standing jars discordantly with the purposive interpretation of section 15(1) of the Charter, so that while equality is determined in a contextual fashion, equal access is still conceived of in an abstract fashion. In abstracting the directly affected individual out of relations of radical inequality, there has been a presumption that we all, as individuals, have an equal opportunity (and equal resources) to raise our constitutional concerns in the courts. This presumption cannot be accepted. We need to inject some context into standing. To do so, we must appreciate that inequality is a product of the distribution of power in society, and that equality is to be furthered through multi-dimensionality and respect for diversity. Armed with these insights, we must revisit the judicial concerns that underpin the development of the public interest standing doctrine, and unpack their meaning in a purposive fashion. When we do so, we will begin to appreciate that the traditional resolution of these concerns actually serves to exclude disadvantaged persons from enforcing their Charter rights and obscures the diffuse causality characteristics of disadvantage. From the contextual perspective of social-inequality-as-power, the concerns underpinning public interest standing actually promote judicial access for the public interest organization that represents disadvantaged persons.

This thesis is concerned with those 'social' rights that relate to the provision of the basic necessities of life; that is the right to an adequate standard of living (including food, clothing and shelter), the right to health and the right to education. The International Covenant on Economic, Social and Cultural rights (ICESCR) recognises obligations pertaining to the progressive realisation of these rights, whilst leaving the method of implementation within domestic discretion. The Canadian Charter of Rights and Freedoms only accords domestic constitutional protection to civil rights, leaving the implementation of these social rights within government discretion. This study will examine what has, in the Canadian experience, proven to be the practical consequences of adopting such a policy of 'selective constitutionalisation,' that puts social rights by definition outside the ambit of legal enforcement. Firstly, it will examine the court's approach to cases that have, in the absence of constitutionalised social rights, attempted to indirectly invoke social rights by encouraging a positive social interpretation of the right to equality and the right to life, liberty and security of the person, and will illustrate that the courts have failed to interpret these rights so as to indirectly protect social rights. Secondly, it will consider the relationship between legal, political and social discourse, illustrating that, in light of the non- constitutionalised status of social rights, the values underlying these rights have been marginalised in political and social discourse, facilitating reforms that have restructured and eroded the welfare state, reducing the realisation of social rights within Canada. Thirdly, it will consider the practicability of adopting the alternative approach of according equal constitutional protection and justiciable status to social rights, through an examination of the theoretical literature and the approach taken to social rights under the Final Constitution of the Republic of South Africa 1996. It will illustrate that the philosophical arguments that have been utilised to support the nonconstitutionalised status of social rights are no longer sustainable and that the constitutional experience of South Africa provides evidence that a practical alternative to the position adopted in Canada exists.