1. Unit 2 – Rights and Freedoms Landmark Charter Cases CLU3M – Mr. Andrez

2. R. v. Morgentaler, [1988] 1 S.C.R. 30 Summary: Morgentaler and his two co-accused were licensed physicians who ran a clinic providing abortion services to women. The relevant former provision of the Criminal Code section 251 (4) - required that abortions first be approved by a therapeutic abortion committee at an accredited or approved of hospital. The procedure had to occur at that hospital. All three physicians were opposed to the legislative regime prescribed by Parliament and had opened their clinic in defiance of the law. They were then charged with procuring abortions under the relevant provisions of the Code: 421(1)(d) and 251(1). Before they entered their pleas, the doctors asked the trial court to quash the charges on the argument that they infringed sections 2(a), 7, and 12 of the Charter

3. R. v. Morgentaler, [1988] 1 S.C.R. 30 The doctors argued that they were: not being allowed to follow their consciences under section 2(a); were being prosecuted under laws that were too vague, which deprived them of fundamental justice; and that women being denied an abortion were being subjected to cruel and unusual punishment under s. 12 of the Charter, as the regulatory scheme developed under the Code had the net effect of denying them the right to the medical procedure they wanted

4. R. v. Morgentaler, [1988] 1 S.C.R. 30 Applicable Laws: 251(4) of the Criminal Code required a woman who wanted an abortion to apply to a hospital where a special committee would approve the abortion only if it was necessary for the life or health of the woman.

5. R. v. Morgentaler, [1988] 1 S.C.R. 30 Charter Sections Involved: 2(a). Everyone has the following fundamental freedoms: freedom of conscience and religion. 7. 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; and 12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

6. R. v. Morgentaler, [1988] 1 S.C.R. 30 Legal Issues: Does s. 251 of the Criminal Code violates the rights and freedoms guaranteed by ss. 2(a), 7, 12 of the Charter? If such a violation occurs, whether it is justifiable under s. 1 of the Charter?

7. R. v. Morgentaler, [1988] 1 S.C.R. 30 Outcome: The majority of the Supreme Court of Canada judges ruled that the Criminal Code’s restrictions on abortion were unconstitutional since they increased the health risks to women depriving them of the right to security of the person (s-7). Since this decision no abortion law has been enacted

8. Vriend v. Alberta [1998] 1 S.C.R. 493 Summary: Delwin Vriend was employed as a laboratory coordinator at a Christian college in Edmonton, Alberta. He had received positive evaluations, salary increases and promotions for his work performance. In January 1991, Mr. Vriend was fired by the college. The only reason given by the college was that he did not comply with its policy on homosexual practice: Mr. Vriend was fired because the college had become aware that he was a gay man. In June 1991, Mr. Vriend filed a complaint with the Alberta Human Rights Commission on the basis that his employer had discriminated against him because of his sexual orientation. In July 1991, the Commission told Mr. Vriend that he could not make a complaint under the Individual’s Rights Protection Act (IRPA) of Alberta because sexual orientation was not included in the list of protected grounds in section 7(1) of the IRPA. Mr. Vriend applied to the Court of Queen’s Bench of Alberta for a declaration that the IRPA violated the equality guarantee contained in s. 15(1) of the Charter of Rights and Freedoms due to the omission.

9. Vriend v. Alberta [1998] 1 S.C.R. 493 Applicable Laws: Section 7(1) of the IRPA stated: 7(1) No employer or person acting on behalf of an employer shall (a) Refuse to employ or refuse to continue to employ any person, or (b) Discriminate against any person with regard to employment or any term or condition of employment, because of the race, religious beliefs, colour, gender, physical disability, mental disability, marital status, age, ancestry or place of origin of that person or of any other person.

10. Vriend v. Alberta [1998] 1 S.C.R. 493 Charter Sections Involved: Section 15(1) of the Charter states: 15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination …

11. Vriend v. Alberta [1998] 1 S.C.R. 493 Legal Issues: Does the exclusion of “sexual orientation” from section 7(1) constitute a violation of section 15(1) of the Charter?

12. Vriend v. Alberta [1998] 1 S.C.R. 493 Outcome: The Supreme Court decided that the provisions of the IRPA breached the equality provisions of the Charter because the omission of “sexual orientation” from the list of protected grounds created a distinction that had the effect of discrimination, which is prohibited by s. 15(1). Alberta failed to demonstrate any reasonable basis for excluding sexual orientation from the IRPA. Rather than find the whole of the IRPA unconstitutional, the Court chose, as the least intrusive and expensive mechanism, to read in, as had been ordered by the trial judge, the words "sexual orientation".

13. Multani v. Commission scolaire Marguerite- Bourgeoys, [2006] 1 S.C.R. 256 Summary: The student, G is an orthodox Sikh who believed that his religion requires him to wear a kirpan at all times. A kirpan is a religious object that resembles a dagger and (for orthodox Sikhs) must be made of metal. In 2001, G accidentally dropped the kirpan in the schoolyard. He had been wearing it under his clothes. The school board sent G’s parents a letter in which, as a reasonable accommodation, it authorized their son to wear his kirpan to school provided that he complied with certain conditions to ensure that it was sealed inside his clothing. G and his parents agreed to this arrangement. The governing school board refused to ratify the agreement on the basis that wearing a kirpan at the school violated the school’s code of conduct which prohibited the carrying of weapons. The student’s father then challenged the School Board’s decision in the Quebec superior court. The court agreed and held that the decision of the school board to be null. It authorized G to wear his kirpan under certain conditions. The case was appealed to the Quebec Court of Appeal. The court concluded that although the governing board’s decision infringed G’s freedom of religion under s. 2(a) of the Canadian Charter of Rights and Freedoms (“Canadian Charter”) the infringement was justified under s. 1 of the Canadian Charter.

14. Multani v. Commission scolaire Marguerite- Bourgeoys, [2006] 1 S.C.R. 256 Applicable Laws: There was no specific law being challenged in this case. What was being challenged was the School Board’s decision to not accommodate G’s religious right to wear his kirpan under certain conditions.

15. Multani v. Commission scolaire Marguerite- Bourgeoys, [2006] 1 S.C.R. 256 Charter Sections Involved: 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion;

16. Multani v. Commission scolaire Marguerite- Bourgeoys, [2006] 1 S.C.R. 256 Legal Issues:  Did the school board infringe G’s right to religion by failing to accommodate G’s desire to wear his kirpan under certain restrictions? If so, was it justified under s.1 of the Canadian Charter ?

17. Multani v. Commission scolaire Marguerite- Bourgeoys, [2006] 1 S.C.R. 256 Outcome: The Supreme Court of Canada held that when the council of commissioners refused to ratify the agreement allowing an accommodation to the student, it thus infringed upon his right to freedom of religion under s.2(a) and that the infringement was not reasonably justifiable under s.1 of the Charter.

18. Sauvé v. Canada (Attorney General) [1993] 2 S.C.R. 438. Summary: Richard Sauvé, a former member of the Satan's Choice Motorcycle Club, was serving a life sentence for first degree murder. He challenged the law that prevented him from voting while in prison. Section 51 of the Canada Elections Act disqualifies certain people from voting, this includes "every person undergoing punishment as an inmate in any penal institution for the commission of any offence" [s.51(e)].

19. Sauvé v. Canada (Attorney General) [1993] 2 S.C.R. 438. Applicable Laws: Canada Elections Act, R.S.C. 1985, c. E-2 51.The following persons are not qualified to vote at an election and shall not vote at an election:.... (e) "every person undergoing punishment as an inmate in any penal institution for the commission of any offence"

20. Sauvé v. Canada (Attorney General) [1993] 2 S.C.R. 438. Charter Sections Involved: Canadian Charter of Rights and Freedoms 3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. 1.The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

21. Sauvé v. Canada (Attorney General) [1993] 2 S.C.R. 438. Legal Issues: Does section 51(e) of the Canada Elections Act violate section 3 of the Charter. If so can it be saved under section 1 of the Charter.

22. Sauvé v. Canada (Attorney General) [1993] 2 S.C.R. 438. Outcome: In sum, in a 5-4 ruling, the Supreme Court ruled against the government. Canada’s highest court found that the federal government did not have sufficient reason to deny inmates the right to vote. the Court found that as voting was a fundamental right in a democracy, any attempt made to restrict that right had to be justified Supreme Court found that denying a fundamental right is arbitrary because it is applied to all offenders regardless of the circumstances relating to the offender or his/her offence