Case Analysis : The Chaoulli V Quebec

This controversial case ruled that a woman’s ability to be able to chose to get an abortion is considered a protected liberty. It also concluded that this

Dr. Henry Morgentaler and two other doctors set up a private clinic in Toronto to perform abortions on women. According to the law at that time women were required to obtain a certificate from a therapeutic abortion committee that would Asses whether they qualified for an abortion. Morgentaler and his colleagues made public statements question the wisdom of these abortion laws in Canada. They believed that women should have the sole decision on having abortion. The three appellants where charged on the grounds of conspiracy amongst each other between November 1982 and July 1983 with the intent to perform an abortion on women contrary to s.423 (1) (d) and s.251 (1) of the criminal code . This was an appeal from the court of appeal for Ontario.

To prove that the Charter protects some rights but not all, a court case that involved Dr Henry Morgentaler and the Supreme Court of Canada was successful after trials. Before this case, women were only allowed to have an abortion after proper certification of approval from a hospital's Therapeutic Abortion Committee. Three doctors including Morgentaler set up an abortion clinic that allowed women to have an abortion without a certification of approval. He was later charged with illegal abortion under section 251 of the Criminal Code. Morgentaler argued that women had full right on deciding whether or not they wanted an abortion. This law was struck down as unconstitutional as it violated a woman’s right according to section 7 on the Charter.

In the 19th century, after tremendous progress in surgical processes, abortions were then conducted by surgeons on a wide scale, while medical abortions are used concurrently. However, as abortion technology prospers, legal restrictions came with it. In 1803, a English statute abolished the previously-legal first trimester abortions. The act “condemned the willful, malicious, and unlawful use of any medical substance when used with the intent to induce abortion” (Stern, 1968). In 1821, Connecticut enabled the first statute in the United States regulating abortions. Within 10 years, states like Illinois, Ohio, New York, Alabama, and others enabled abortion restriction statutes, and by 1968, 50 of the 51 jurisdictions in the United States have prohibited abortion except in the case women’s life is endangered (Ibid., at 3). In 1965, Britain, however, legalized abortion for “medical conditions of the mother, for socio-economic reasons, for eugenic considerations, and for pregnancies which resulted from rape or incestuous intercourse”, which is still law today (Ibid, at 4). In Canada, abortion has been legalized since 1969 through Bill C-150 if “a committee of three physicians determined that the pregnancy was a threat to the woman's life or health” (Norman, 2012). In 1988, Canadian Supreme Court struck down bill C-150’s provision requiring committee approval to receive an abortion in its decision R v Morgentaler, legalizing abortion across Canada for any reasons (Ibid.).

The Morgentaler case of 1993 and the Smolig and Scott case of 1988 were cases that would have a very impactful ruling. The supreme court of Canada decided that section 287 of the criminal code infringed the rights of section 7 in the charter of rights and freedoms. Section 7 states that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” (Constitution Acts, 1867 to 1982) This declared that abortion could ne longer be considered a criminal offence because it was unconstitutional and violated one’s rights under section 7. The oakes test would be applied to a case such as this. The oakes test is a legal test the courts use to determine whether an

The Canadian Charter of Rights and Freedoms, implemented in 1982 outlines the rights and freedoms that Canadians have as citizens of this country. In this paper I will ask whether we need such a charter, whether we can trust the interpretation of the Charter by the Supreme Court and how the Charter balances power in a democratic way. I will then contemplate the foundational place morality holds in the lawmaking process. In all of this I argue that to make a good law one must hold to a moral standard and one must act in the understanding that belief, and not objectivity, plays the main role in rational thought.

Before 1988, abortion in Canada was illegal in all providences however due to the relatively new Charter of Rights and Freedoms Canadian doctors were able to challenge the law. According to section 7, the Charter “guarantees the life, liberty and personal security of all Canadians. It also demands that governments respect the basic principles of justice whenever it intrudes on those rights.”(Section 7, Charter of Rights and Freedoms). Thus the law banning abortion was a violation of the rights guaranteed in the Charter, and as one of the prevailing justices in the case stated: "The right to liberty...guarantees a degree of personal autonomy over important decisions intimately affecting his or her private life. ... The decision whether or not to terminate a pregnancy is essentially a moral decision and in a free and democratic society, the conscience of the individual must be paramount to that of the state." The Charter further protects the right of choice, moral decisions, and freedom of personal

The appellants Lee Carter, Hollis Johnson and Gloria Taylor joined with other appellants to bring the civil claim which is against the prohibition on assisted suicide found in s. 14 and s. 241 (b) of the Criminal Code (Carter, para. 20). The same issue which was brought in Rodriguez v. British Columbia 20 years ago was declared to be constitutional. In this case, ultimately Lee Carter’s appeals succeeded.

This essay will argue that the decision reached in Cattanach v Melchior [2003] was the correct one. Supporting this argument is the courts departure from the principles established in McFarlane v Tayside Health Board [1999].Additionally, Cattanach extends itself by attempting to address and give legal clarity to the idea of compensable harm in relation to negligence of medical practitioners. This has ultimately led to Cattanach establishing a positive framework, previously not recognised by the courts, to award damages for the torts of wrongful birth and wrongful life. Finally, the reaction to Cattanach on the judicial and executive branches of government have had significant impact on shaping public policy in relation to these complex issues.

Moreover, the commentaries of Supreme Court justices themselves further substantiate the claims of Malfredai by describing the Court's role in Canadian government. Concordantly, Supreme Justice Michael Moldaver, in an interview special facilitated by CPAC, asserts that “we [being supreme court justices] bear the responsibility of shaping and refining the law for an entire country…”(Moldaver, 2014). While Supreme Justice Clement Gascon gives a similar commentary in the same CPAC special stating “The role of the Supreme Court, as far as I'm concerned, is to stand as the leader in the country in terms of the making of the law…” (Gascon, 2014). It is evident that the court’s lack of opposition allows its operation to continue unfettered by external entities or individuals, and because of this; The Court boasts its authority with minimal opposition.

The arguments in this case focus around what Mr. Hyer to believe an unlawful order that not only put himself in danger but that of a patient, the issues were

After opening an abortion clinic illegally, Morgentaler went through twenty years of legal battles including an eighteen month jail sentence. In 1982 Canada enacted the Charter of Rights and Freedoms, bringing new hope to abortion rights activist, Henry Morgentaler.

Quebec, that the province's prohibition on private insurance coverage for wellness care already insured from the provincial plan violated the Quebec Charter of Rights and Freedoms, and specifically the sections dealing with the proper to existence and safety, if there have been unacceptably prolonged wait occasions for treatment, as was alleged in this instance. The ruling has not changed the overall pattern of health insurance across Canada but has spurred on attempts to tackle the core concerns of provide and demand as well as the affect of wait

One has to understand that tribunal decision that tends to uphold statutory intentions, including protection of the public interest, require greater respect during the review. This means that the reviewing courts should show deference to a significant extent to tribunals during cases of such kinds (Boyd 279). Likewise, in its review, the court should consider the technical aspects involved in the decision-making process by the tribunal in question (Boyd 267). It can be fairly said that the tribunals might be better placed to make the appropriate choice from the available options due to aspects such as specialization and understanding of the circumstances leading to the case at hand. By considering such aspects, the reviewing court should exhibit deference to the tribunal’s decision. Here the committee at the College of Physicians and Surgeons of British Columbia was set to act as a decision-maker in the belief that it had an upper hand in selecting the appropriate choice. Thus, the reviewing judge’s disregard of such responsibility granted to the committee clearly illustrates that judicial review in Canada overlaps the work of administrative tribunals. Instead of supporting bodies that are mandated to address certain matters of public interest, judicial review process downplays their

Mrs. and Mr. Kabuki’s sponsorship application was refused based on the Bad-faith relationship: Subsection 4 (1) (a) of IRPA, even though Mr. Kabuki’s intention to stay with Mrs. Kabuki forever was proven. According to the section 25 of IRPA, they have no right to appeal negative decision of the sponsorship application that was filed in Canada, but they can ask for judicial review. Also, Mr. Kabuki has the right to judicial review or Humanitarian and Compassionate grounds in regards to the negative response from RAD. Now that there is child involved, a review under the Humanitarian and Compassionate grounds will take into consideration the best interest of the child, and family reunification under section 25 (1) of IRPA. The Baquedano v. Canada