Cases Flashcards
Lavell v. Bedard 1973: Equality Case
- Equality before the law
- Challenge to a part of the Indian act, the Indian act said that native women who married non natives would lose their official status
- However men could marry whoever without any legal consequences
- SCC says there’s no discrimination, say “apples to oranges”
- Use similarily situated standard
- Court said all women are being treated equally under this law (all women are being discriminated against equally)
- Ends up being a big case for Canadian womens movement
- Frequently cited as to why the womens movement became involved in the charter movement
Andrews v. Law Society 1989: Discrimination case
• Applies for law school, but he wasn’t a citizen
• Said citizenship requirement is unneccesary
• Discrimination- disadvantage (material harm or prejudice) not just distinction
• Discrimination must be based on a personal characteristic unrelated to merit, such as enumerated grounds or analogous grounds
insular
discrete
minority
Vriend v. Alberta: Discrimination case
statutory human rights codes must also prohibit discrimination based on sexual orientation
M v. H
legal recognition of same-sex common law spouses in family law
R v. Kapp 2008
• 2 step test- governments should not make distinctions based on the enumerated or analogous grounds that
o 1. Have the effect of perpertuating prejudice or group disadvantage
o 2. Impose disadvantage on the basis of stereotyping
• court also clarified relationship between s.15 1 and affirmative action provision of s.15 2. No such thing as reverse discrimination
• if something is protected under s 15 2 by pro-actively combatting existing discrimination- such as a program to help native fishers- then it doesn’t violate s.15 1 and is not discrimination to begin with
Sparrow v. The Queen 1990 : Aboriginal rights
• Most comprehensive of treatment of s.35;
o Gets arrested for fishing with a net that’s too big, and says that they have no business regulating his net, says he has aboriginal right that shouldn’t be restricted
o SCC ‘read in’ a limititations clause to s.35; 2 steps
• Adverse impact- on right? Claimant must demonstrate that govt law is unreasonable, ad imposes undue hardship
• If so, govt must justify legislation; court considers
Is there a valid legislative objective (environmental conservation, public safety)
Minimal infringement of rights
Has aboriginal group been consulted
If expropriation occurs, fair compensation paid?
Calder 1973: Aboriginal title
- SCC recognized for the first time the possible existene of an aboriginal title; legal owenerhsip of the land that had not been extinguished or surrendered to the crown before or after confederation in 1867
- But didn’t revive extinguished rights, or prevent further extinguishment
- Promoted land claims negotiations by feds
Delagmuukw v. BC 1997
• Clarified aboriginal title
o Right to exclusive use of occupation of land for a variety of purposes
o Purposes do not need to be traditional or integral and distinctive to aboriginal culture
o Title held communally
• First successful aboriginal title claim in SCC not until Tsilhqot’in nation v. BC 2014
• A claim to aboriginal tite must prove 3 things
o Land must have been occupied prior to European contact
o This occupation must have been exclusive
o If occupied today, must have been continuously occupied from pre-contact
• Other important features of decision:
o SCC recognize oral history as possible evidence of s. 35 title or rights
o Governments must negotiate with holders of ab. Title if using land and compensate fairly
o Source of title is prior occupation of land, not royal proclmaiton of 1763
o Didn’t address inherent right to self-government
Borowski v. the Queen
• Was asked to consider if canadas law allowing abortions violated the right to life of the unborn fetus
o Moot- no live legal dispute
o While he was waiting for his case to be heard, morgenteller was decided
Dagle v. Tremblay
- He goes to court and says he wants to prevent her from having an abortion, initially he wins
- Says there cant be an abortion without mutual consent
- Quebecs human rights code applies
- She goes to boston and gets an abortion
- Court comes back and says that the charter doesn’t apply, matter between 2 people
- Under quebec law fetus has no right to life, and fathers have no business blocking abortions
Gosselin v. Quebec 2002
o Issue in Gosselin was that quebec had a law htat if you were under 30, and had no dependents and you were capable of working, the government would substantially reduce your welfare payments unless you were in a job training program
o Gosselin had been widowed, she went to court and said section 7 entails a positive right to social assistance, if I don’t get these payments I cant afford to live in a house, eat, etc
o SCC rejected that arguments, they said s.7 doesn’t place positive obligations on the state
R v. Morgentaler
• before this, abortion was never legal
• but there was a defence, and that is what is known as the defense of necessity
o if the mothers physical life was imminently threatened, she could have an abortion
• 1969- omnibus reform of the criminal code, purpose to decriminalize what was seen as moral offences
o created a new section of the criminal code, new category called therapeutic aboritons, made discintion between legal and illegal abortions
o goal was to prevent danger to a womans life or health, first it says danger not imminent threat, doesn’t say life or health
• s. 251 lays out the procedure for getting a therapeutic abortion
o 1st step- province would have to grant approval to a hospital to perform therapeutic abortions
o 2nd step- hospital would have to establish a therapeutic abortion committee, with at least 3 doctors
o 3rd step- when a woman wanted an abortion, she and her doctor would apply for approval, needed a majority
• if you got approval, that shielded you from prosecution
• Morgantaler argues that decision should be between woman and her doctor, he opened clinics, said he would perform abortions and I invite you to arrest me so I can challenge the law
• Goes to jail briefly in Quebec, he would always choose trial by jury
o Went to appeal, they overturned the jury and sent him to jail
o Law is later changed so that appeal court cant send you to jail if jury doesn’t convict you
• Argues that it’s a principle of fundamental justice that you should have control over your life
• Judges split 5-2, but majority 5 are also split
• Middle ground decision (justice Nixon, Lamer)- their point is that the TAC system creates delays, which increase the risk to womens health, more psychological stress, says it clearly interfers with peoples physical security, says there are 3 problems with TAC- 1st provinces didn’t have to approve any hospitals, 2nd hospitals didn’t have to create TACs, 3rd the law (s.251) didn’t define health
• Tac’s across the country had different opinions of health
• S. 251 creates a defense against a criminal charge, said that defense is not equally available throughout the country, even if you would qualify for a TA, you may not be able to get one depending on where you are
o That violates the principles of fundamental justice
• Trying to separate process and substance
o For example, with TAC approval system that cretes a waiting period/supreme court saw it as a delay
• What Nixon and lamer say is that the charter trumps the more federalist issues
Chaouli v. Quebec
• Concerned ban on private medical insurance (for things covered by medicare)
• No ban in Canada on running a private hospital, but if you run one you aren’t a part of medicare (government doesn’t foot the bill)
• Quebec said you cant sell health insurance for those private procedures if it is something we cover through medicare
• Chaoulli had been waiting for years for a hip replacement, kept getting bumped in the public system
• Said that we should be able to get a private health insurance system and not wait for medicare
• Said it violated section 7 because without it there are too many delays in the healthcare system
• S.7 3-3 (1 abstains)
• S.1 QC charter of HR + freedoms
o Right to life and personal inviolability
• Example of judicial restraint
• Quebec code only applies in Quebec
• Looked at morgentaler, section that discussed delays, agree that dealys increase risk to the patient, used the right to life (longer they wait, the higher the risk they might die)
• Say its arbitrary and irrational- their fundamental argument is that you don’t need to ban private health insurance, you can have both public and private
• Other 3 disagree- said that Quebec’s ban isn’t arbitrary, its consistet with their legislative agenda, the point of having just public healthcare is to provide high quality healthcare at a reasonable cost for as many people as possible, in a way that is efficient, equitable, and fiscally responsible, also point out that you can never meet all the healthcare needs
• Strike down the ban on private health care, Quebec does this and then the governments of Canada put a lot of money into wait times
• Chaouilli doesn’t come to court with s. 7, instead they bring a whole new argument also not asking voernment to spend more money
Rodriguez
o S. 241 is unconstitutional
• 1. This law has the effect is to discriminate against the physically disabled
• 2. Says this violates her s.7 right to the security of the person, also a liberty issue
in particular- security of the person is if the state causes you harm, says this law forces her to live in severe pain and emotional distress
o they reject her claim 5-4
o says s.15 is vilated but justified under s.1;
o no consensus around the issue of assisted suicide, we need to protect the vulnerable in society, protecting the sanctity of life
o even at the time it was seen as weak, vulnerable to being reversed in the future
Carter
- Pointed to other countries with assisted suicide
- Used same arguments as Rodriguez
- Overturned rodriguez, must be available to reply with a new law
- Strong majority of Canadians want to be able to choose, quebec has already passed a law
