The fundamental rights and freedoms of older adults in Canada are protected by the Canadian Charter of Rights and Freedoms. Unlike the principles and values discussed above, the Charter is law in Canada.

A. Section 1: Limiting Charter Rights

Charter rights are not absolute: section 1 states that the rights guaranteed by the Charter of Rights and Freedoms are “subject only to such limits as can be demonstrably justified in a free and democratic society.” The question of whether a law constitutes a reasonable limit on a Charter right requires the following considerations, or steps:[19]

· Are the objectives of the impugned law sufficiently important to warrant the limitation of the right?

· When the objective of the law is balanced against the nature of the right, is the degree to which the limitation furthers other rights or policies of importance in a free and democratic society proportionate to the extent of the limitation of the right?

· Is there a rational connection between the limitation of the right and the objective of the law?

Applying this analysis, discrimination on the basis of age (mandatory retirement policy) has been found to be justified under section 1 (see discussion below, “Section 15”). The appropriate balance between individual rights and social objectives under section 1 may shift, however, as the social context of attitudes, beliefs and values changes and develops. For this reason and in this way more recent case law has found that mandatory retirement is no longer “saved” by section 1, for example.

B. Section 32: Scope of Application

The Charter is also limited in scope of application, applying to the decisions and actions of government and government entities only.[20] The Charter does not apply to the actions of private entities (to which provincial human rights legislation applies).

The distinction between private and public entities is not always self-evident. A hospital, for example, may be a public or government entity with regards to certain kinds of decisions and actions, and a private actor with regards to other kinds of decisions or actions. Public actions and decisions must comply with the rights guaranteed by the Charter. Private actions and decisions are not subject to Charter review.

Two decisions of the Supreme Court of Canada concerning the equality rights guaranteed by section 15 illustrate this distinction. The issue in Stoffman v. Vancouver General Hospital[21] was whether Vancouver General Hospital’s mandatory retirement policy violated the equality rights guaranteed by section 15 (discussed below) by discriminating on the basis of age. The Court concluded that the hospital’s retirement policy could not be subjected to a Charter review as the hospital was not a government entity. In the subsequent case of Eldridge v. British Columbia[22] (also discussed below) the Supreme Court concluded that a hospital’s provision and delivery of medically necessary services was subject to Charter review. The issue in that case was whether the failure to provide interpretation services to deaf patients violated the patients’ equality rights guaranteed by section 15. Publicly provided health services were a “comprehensive social program” provided by the government;[23] the government had chosen to implement that program through the hospitals. When hospitals exercised their authority (conferred by legislation) to make decisions about service provision, they were acting as vehicles for implementation of that government program. The hospital’s retirement policy was, in contrast, an internal and “private” (as opposed to public) management matter.

Legislation must always be consistent with the Charter. In McKinney v University of Guelph[24] (discussed below) for example, the Supreme Court of Canada considered the question of whether Ontario’s Human Rights Act discriminated on the basis of age (in violation of section 15) by excluding persons over 65 in its provisions regarding employment discrimination. That case concerned a university’s mandatory retirement policy; the Court concluded that the university was a private entity and so the Charter did not apply, although it went on to consider the section 15 issue regardless. The human rights legislation under consideration was discriminatory and therefore violated section 15 , but was “saved” (see discussion below) by section 1 (that legislation has since been amended, and age is no longer excluded).

Even where a public body is not involved, as in cases concerning private nursing homes or care facilities, practices should be consistent with Charter values, on the basis that the Charter enshrines fundamental social values and generalised ideas of justice and fairness.

C. Section 33: The Notwithstanding Clause

Both Parliament and provincial legislatures have a limited power under section 33 to pass laws that are exempt from certain Charter provisions – those concerning fundamental freedoms and legal and equality rights. This section is sometimes referred to as the “notwithstanding clause”.

In order to rely on this section, Parliament or a legislature must state specifically that a particular law is exempt from the Charter. It must also state which sections of the Charter do not apply. An exemption from the Charter lasts a maximum of five years. After that, if Parliament or the legislature concerned wishes it to continue to be exempt from the Charter, it must make a new declaration under this section.

The purpose of this section is to require a government that wishes to limit Charter rights to say clearly what it is doing and accept the political consequences of doing so.

It also ensures that Parliament and the legislatures, not the courts, have the final say on important matters of public policy. If, at a certain point, the rights in the Charter no longer reflect Canadian values, then democratically elected bodies like Parliament and the legislatures can make laws that are not bound by the Charter.

To date, provincial legislatures have used this section rarely. It has never been used by the federal Parliament.

D. Charter Protected Rights and Freedoms

The Charter provisions regarding equality (section 15), liberty and security of the person (section 7), and arbitrary detention (sections 10 and 12) are especially relevant to substitute decision making and responses to elder abuse and exploitation, the focus subject areas in this Report.

1. Section 15

The equality rights guaranteed by section 15 will be of obvious relevance to the development of anti-ageist legislation. It is important to note that discrimination is permitted where justified under section 1, and also where it is used as a factor in designing programs, activities or laws that are intended to ameliorate disadvantage (under subsection 2) as where benefits are conferred on individuals over the age of 65, for example.

Section 15 guarantees equal protection and benefit of the law without discrimination:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The grounds listed in section 15 are known as the “enumerated grounds.” The section has been interpreted as prohibiting (subject to section 1) discrimination on the basis of characteristics analogous to the enumerated grounds, in addition to the enumerated grounds themselves.

Age is an enumerated ground, but the Supreme Court of Canada has described age as different, in significant ways, from other enumerated grounds:

[U]nlike race, religion, or gender, age is not strongly associated with discrimination and arbitrary denial of privilege. This does not mean that examples of age discrimination do not exist. But age-based distinctions are a common and necessary way of ordering our society. They do not automatically evoke a context of pre-existing disadvantage suggesting discrimination and marginalization under this first contextual factor, in the way that other enumerated or analogous grounds might…. The fact that ‘[e]ach individual of any age has personally experienced all earlier ages and expects to experience the later ages’ (P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 2, at p. 52-54) operates against the arbitrary marginalization of people in a particular age group. Again, this does not mean that age is a “lesser” ground for s. 15 purposes. However, pre-existing disadvantage and historic patterns of discrimination against a particular group do form part of the contextual evaluation of whether a distinction is discriminatory. [25]

a) Discrimination

Differential treatment on the basis of one of the enumerated or analogous grounds will not, in every instance, be discriminatory. The nature of discrimination was explained by the Supreme Court of Canada in the case of Law v. Canada (Minister of Employment and Immigration):[26]

[T]he purpose of section 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect, and consideration…. Human dignity … is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment based upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity… concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?[27]

Law involved a claim by a 35 year old widow that she had been discriminated against because she did not qualify for Canada Pension Plan survivor benefits available to persons 45 years or older. The Supreme Court held that this age based distinction was not discriminatory, and so did not violate section 15. Discrimination on the basis of age, where it existed, is most likely to affect “people of advanced age who are presumed to lack abilities that they may in fact possess.”[28]

b) Substantive equality

The equality rights guaranteed by section 15 have been interpreted as substantive, rather than formal rights. This means that a law applying in a uniform way which, in implementation, has a disproportionately negative effect on “enumerated” classes of persons will be in violation of section 15. As explained by McIntyre J. in Andrews v. Law Society of British Columbia,[29] “accommodation of differences . . . is the true essence of equality”.

In Eldridge v. British Columbia,[30] for example, a group of deaf patients asserted that their equality rights were infringed by the failure of the BC Medicare system to ensure that sign language interpreters would be available during hospital visits and medical appointments. The policy was, on its face, an example of formal equality: everyone was treated in the same way, with the same access to medical services. However, by treating the hearing impaired as if they were “the same as everyone else” and did not have particular requirements this formal equality had the effect of infringing the substantive equality of deaf patients;