The Dilemma of Positive Rights: Access to Health Care and the <i>Canadian Charter of Rights and Freedoms</i>

Macfarlane, Emmett

doi:10.3138/jcs.48.3.49

Cited by 6 publications

(7 citation statements)

References 19 publications

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“…Positive rights are distinguished from negative rights that aim to eliminate government interference with rights (Macfarlane, 2014). Generally, the courts are apprehensive of mandating entitlements to new benefits through section 15(1) because doing so is seen to encroach on the responsibilities of elected branches of government to fulfill their Charter obligations.…”

Section: Positive Rights For Deaf Childrenmentioning

confidence: 99%

Framing Deaf Children’s Right to Sign Language in the Canadian Charter of Rights and Freedoms

Paul¹,

Snoddon²

2022

Preprint

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<p>Sign language rights for deaf children bring a unique perspective to bear in the fields of both disability rights and language planning. This is due to the lack of recognition in existing case law of the right to language in and of itself. Deaf children are frequently deprived of early exposure to a fully accessible language, and as a consequence may develop incomplete knowledge of any language. Thus, in the case of deaf children the concept of sign language rights encompasses rights that are ordinarily viewed as more fundamental to human equality. This paper will take as a starting point the historical treatment of the enumerated disability ground in the Canadian Charter of Rights and Freedoms’ section 15(1) guarantee of equality rights. We argue that in order to meet deaf children’s specific biological and linguistic needs, these children’s right to sign language also needs to be recognized as an analogous ground for protection from discrimination. Sign language rights are framed in terms of an immutable characteristic of all children, namely the biolingual process for language acquisition. The biolingual process is the experiential and innate ability to acquire language. </p>

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Section: Positive Rights For Deaf Childrenmentioning

confidence: 99%

Framing Deaf Children’s Right to Sign Language in the Canadian Charter of Rights and Freedoms

Paul¹,

Snoddon²

2022

Preprint

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“…In addition, obviously the availability of good palliative care provided by medical power will have an impact on the individual’s decision (if well informed) to avail him/herself of MAID. At the same time, in Canada Charter claims have generally been unsuccessful insofar as they have required the expenditure of state resources not available to the general public (MacFarlane, 2014). This suggests that while the Charter might give suffering individuals a negative right to opt for MAID, it will not serve them well if they seek a positive right to more palliative care options—options that may well have an effect on their decision of whether or not life is worth living.…”

Section: Carter V Canada (Attorney General)mentioning

confidence: 99%

Biopower, juridical power and the afterlife of rights: Medical assistance in dying and the Supreme Court of Canada

Young

2020

Theoretical Criminology

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This article considers how different modalities of power emerge in medical assistance in dying (MAID) cases, particularly with respect to the Supreme Court of Canada’s decision in Carter v. Canada (A.G.) [2015]. While juridical rationalities cast the issue of MAID in terms of individual rights, Carter and subsequent legislation distinguishes MAID from assisted suicide through the creation of a regulatory scheme, so that individuals seeking MAID continue to be governed by medical power. This may seem to confirm arguments that the image of subjectivity evoked by juridical discourses simply results in the reinforcement of existing power relations. However, this article argues that it is the very regulatory scheme governing MAID that provides points of resistance, giving the individual opportunities to challenge medical power in ways that may destabilize power relations.

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“…In fact, as shown in the preceding section regarding the Eldridge case, section 14 of the Charter, and related jurisprudence, for deaf adults many Charter rights are fulfilled only by sign language accommodations. Extending this argument to young deaf children's right to sign language may depend on the courts reading positive rights into section 15(1) and providing new entitlements to social services (Macfarlane, 2014). In effect, this means that governmental entities must provide ASL and LSQ programming and instruction for all young deaf children and their families.…”

Section: Positive Rights For Deaf Childrenmentioning

confidence: 99%

“…Quebec case of 2005 shows that they have not completely ruled out the possibility of reading positive rights into section 7. In this case, which involved a challenge of a Quebec law that excluded citizens under the age of 30 from full social security benefits, the decision was not unanimous and the judges split three ways on this issue (Macfarlane, 2014). In her ruling, Chief Justice Beverley McLachlin suggested that Snoddon & Paul, "Deaf Children's Right to Sign Language" CJDS 6.1 (March 2017) 13 the meaning of section 7 "should be allowed to develop incrementally" (par.…”

Section: Positive Rights and Sectionmentioning

confidence: 99%

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Framing Deaf Children’s Right to Sign Language in the Canadian Charter of Rights and Freedoms

Paul¹,

Snoddon

2017

CJDS

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Sign language rights for deaf children bring a unique perspective to bear in the fields of both disability rights and language planning. This is due to the lack of recognition in existing case law of the right to language in and of itself. Deaf children are frequently deprived of early exposure to a fully accessible language, and as a consequence may develop incomplete knowledge of any language. Thus, in the case of deaf children the concept of sign language rights encompasses rights that are ordinarily viewed as more fundamental to human equality. This paper will take as a starting point the historical treatment of the enumerated disability ground in the Canadian Charter of Rights and Freedoms' section 15(1) guarantee of equality rights. We argue that in order to meet deaf children's specific biological and linguistic needs, these children's right to sign language also needs to be recognized as an analogous ground for protection from discrimination. Sign language rights are framed in terms of an immutable characteristic of all children, namely the biolingual process for language acquisition. The biolingual process is the experiential and innate ability to acquire language.

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The Dilemma of Positive Rights: Access to Health Care and the Canadian Charter of Rights and Freedoms

Cited by 6 publications

References 19 publications

Framing Deaf Children’s Right to Sign Language in the Canadian Charter of Rights and Freedoms

Framing Deaf Children’s Right to Sign Language in the Canadian Charter of Rights and Freedoms

Biopower, juridical power and the afterlife of rights: Medical assistance in dying and the Supreme Court of Canada

Framing Deaf Children’s Right to Sign Language in the Canadian Charter of Rights and Freedoms

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