Applying Charter of Rights to Alberta's MIR

[Koloman]

After reading the first bit of McDonald I have to wonder about the Alberta MIR case. This may be over-simplifying it, but the Charter of Rights and Freedoms is a federal act, correct? If the provinces have exclusive power to legislate regarding civil rights, then how can the Charter apply to this case. Maybe it has to do with the federal governments residual powers . . .

However, if the Charter of Rights and Freedoms does apply to this case then what will this mean for provincially mandated auto insurance schemes? If one person in one province has the federal right to sue someone for non-pecuniary damages, then how can it be that another province can completely abolish that right? If this case wins at the Supreme Court of Canada then does it not set the precedent to sue provincial auto insurers for rights allowed in other provinces based on the Charter of Rights and Freedoms?

Maybe the answer lies in Section C of the syllabus . . .

[Carl Lussier]

This quote from wikipedia might help:

These rights are generally subject to the limitations clause (section 1) and the notwithstanding clause (section 33). The limitations clause in section 1 allows governments to justify certain infringements of Charter rights. Every case in which a court discovers a violation of the Charter would therefore require a section 1 analysis to determine if the law can still be upheld. Infringements are upheld if the purpose for the government action is to achieve what would be recognized as an urgent or important objective in a free society, and if the infringement can be "demonstrably justified." Section 1 has thus been used to uphold laws against objectionable conduct such as hate speech (e.g., in R. v. Keegstra) and obscenity (e.g., in R. v. Butler). Section 1 also confirms that the rights listed in the Charter are guaranteed.

The notwithstanding clause authorizes governments to temporarily override the rights and freedoms in sections 2 and 7–15 for up to five years, subject to renewal. The Canadian federal government has never invoked it, and some have speculated that its use would be politically costly. In the past, the notwithstanding clause was invoked routinely by the province of Quebec (which did not support the enactment of the Charter but is subject to it nonetheless). The provinces of Saskatchewan and Alberta have also invoked the notwithstanding clause, to end a strike and to protect an exclusively heterosexual definition of marriage,[4] respectively. (Note that Alberta's use of the notwithstanding clause is of no force or effect, since the definition of marriage is federal not provincial jurisdiction.)[5] The territory of Yukon also passed legislation once that invoked the notwithstanding clause, but the legislation was never proclaimed in force.[6]

http://en.wikipedia.org/wiki/Canadian_Charter_of_Rights_and_Freedoms