March 3, 2006 Women and the Charter

1. March 3, 2006Women and the Charter • You’re invited to lunch on Friday March 10, 12 noon, in 140 McLaughlin College. There will be a screening of part of Fundamental Freedoms, a documentary on the Charter (Ian Greene was a “story editor) • Today: Morgentaler, Borowski, Winnipeg Child & Family Services, Tremblay v. Daigle, Gavigan article. • (We covered the NAPE decision last week)

2. Issue: does abortion section of Crim Code (251) violate s. 7? 5 to 2: yes, but 3 different opinions: Dickson, Lamer: 251 violates sec of person; inadequate procedural safeguards. No Dn of “health.” S1 Obj: “life and health” of preg women. Fails rational connection test. Beetz, Estey: Violates sec of person; hosp requirement unnecessary; committee too restrictive. “Health” Dn not a problem. S1 Obj: “protection of fetus.” Fails rational connection test. Wilson: Violates sec of person, and defects substantive. Also, violates “liberty.” No fundamental justice. S.1 Obj: protect fetus. Can’t limit fr of conscience during first trimester. McIntyre: defer to Parliament (LeDain agrees). Morgentaler (1988)

3. Issue: Does s. 251 violate the rights of the fetus? B. wanted declaration that “everyone” in s. 7 and “every indiv” in s.15 includes the fetus. Unanimous decision written by Sopinka: Borowski’s case is moot. Developed a test for mootness: is there a live controversy? If not, should court hear case anyway? Judicial economy Traditional role of jud. Issue of standing: Borowski no longer had it Borowski (1989)

4. Winnipeg Child & Family Services (1997) • Issue: can a judge use a common law remedy to protect a fetus who is endangered? • 9 to 7: no. A fetus is not a legal person. Only the legislature can change this. • Dissenting judges: Common law out of date; courts must fix it to bring into line with current medical knowledge. The “slippery slope” can be avoided.

5. Lived together 5 months; separated partly because of Tremblay’s violence Daigle 18 weeks pregnant; wanted an abortion Tremblay: -went to Que Sup Ct to request injunction to stop abortion. Argued fetus is “human being” under Que Ch of HR & Frs, and under Que Civil Code Judge granted injunction. Conflict bet fetal rts & D’s rights under s. 7 of Charter; fetal rts take precedence Daigle appealed to Que Ct of Ap & lost. At 21 weeks pregnant, applied for lv to ap to SCC. SCC hd quickly on Aug 1; granted lv and scheduled hearing for Aug 8 4 intervenors on each side just after lunch break, D’s lawyer announced D had just had an abortion. Even though moot, wanted ct to continue Ct continued. Court announced decision “from the bench” after hearing: Daigle won. Reasons came later Tremblay v. Daigle (1989)

6. Decision “of the court.” All 9 judges participated even though Que civil code provides for the appointment of a “curator” for a fetus, the order can’t take effect unless the fetus is born alive. A fetus has to be born alive before it can have rights either under the Que Ch of HR, or Canadian Charter Admittedly, there is room for interpretation, but on a matter so crucial, the Quebec legislature would have been clear if it intended the Que Ch of HR & Frs to apply to fetuses. Quebec’s AG intervened, but only to argue for the right of provinces to legislate on certain matters related to abortion. Tremblay lost because the fetus is not clearly covered by the Que Ch of HRs and Frs, and therefore there’s no legal cause for action. Tremblay v. Daigle (cont’d)

7. Critical legal theory Michael Mandel; Judy Fudge different feminist perspectives Carol Smart using the law to achieve political objectives can put public interest groups in contradictory positions. Morgentaler: feminist groups argued that abortion should not be regulated by the criminal law After Morgentaler:some provinces restricted access to abortion through health regulations. Feminist groups had to argue the opposite of Morgentaler position: the provincial regulations trenched on the federal gov’t’s criminal power. HR issues taken to court have to be framed in legal terms; non-legal issues, often the crux of the issue, have to be screened out. Gavigan article

8. Multani v. Commission scolaire Marguerite-Bourgeoys (2006) • G is an orthodox Sikh. He wore a kirpan, a religious object resembling a dagger that symbolizes the need to struggle against oppression. It is normally worn under the clothes. G accidentally dropped it in the school yard when 12, 4 years ago. • The school decided to allow G to wear the kirpan as long as it was sealed inside his clothing, and G and his parents agreed. However, the school board refused to ratify this agreement, and prohibited him from wearing a kirpan (he could only wear a pendant symbolic of the kirpan or an artificial kirpan made of a soft material). • G refused and enrolled in a private school, where he’s about to graduate. G also appealed the Board decision, and won in Quebec Superior Court. The Board appealed, and won at the Court of Appeal. G appealed to the SCC and won yesterday.

9. Multani continued • Court was 8-0 in favour of G. Three decisions were written, the main one by Mde Justice Charron. • The decision of the Board violates G’s freedom of religion. Go to Oakes test. • Objective of the Board’s decision: to ensure a reasonable level of safety at the school. This is substantially important. • Proportionality test – fails minimal impairment (part B). The objective can be met without banning the wearing of a kirpan. Original agreement suggested by the school was more reasonable. • “There are many objects in schools that could be used to commit violent acts and that are much more easily obtained by students, such as scissors, pencils and baseball bats. The evidence also reveals that not a single violent incident related to the presence of kirpans in schools has been reported.” • “[To ban the kirpan] is disrespectful to believers in the Sikh religion and does not take into account Canadian values based on multiculturalism. Religious tolerance is a very important value of Canadian society. If some students consider it unfair that G may wear his kirpan to school while they are not allowed to have knives in their possession, it is incumbent on the schools to discharge their obligation to instil in their students this value that is at the very foundation of our democracy.”