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- Title
LIFE AFTER DEATH: POST-MORTEM CLAIMS UNDER SECTION 7 OF THE CHARTER.
- Authors
WYNGAARDEN, JEFFREY
- Abstract
To date, state actions that fatally violate a person's right to life have been effectively non-litigable. The paradoxical result is that the state escapes Charter liability when it commits the most severe Charter violations. This result is an unavoidable consequence of the jurisprudence on standing and remedies in constitutional cases. Recent attempts to rework the law of standing are a positive development, but these attempts fail to recognize fully the dual public- and private-interest nature of post-mortem Charter litigation. Public interest standing should be available to ensure that fatal section 7 violations are litigable, but the test for granting standing in such cases must be narrowly circumscribed to avoid detaching the rules of standing entirely from their underlying rationales and opening the gates of standing too wide. The list of appropriate remedies must also be restricted to maintain the conceptual coherence of Charter remedies. Declarations and damages are the only appropriate remedies in such cases, and only insofar as they serve a public vindicatory function.
- Subjects
AUTOPSY; RIGHT to life (International law); JURISPRUDENCE; ACTIONS &; defenses (Law); JUDGE-made law
- Publication
University of Toronto Faculty of Law Review, 2019, Vol 77, Issue 2, p137
- ISSN
0381-1638
- Publication type
Article