Date of publication: 14 Apr 2022 • 1 day ago • 12 minutes reading • 82 Comments Police remove protesters from Dr.’s clinic. Henry Morgentaler in Montreal on May 26, 1989. Photo by Pierre Obendrauf / Postmedia

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The Charter of Rights and Freedoms entered into force on April 17, 1982. Since then, thousands of court cases have been initiated and decided, based on the principles contained in this document.

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Many – most, perhaps – had little impact beyond the parties directly involved. But others have completely overturned the way governments and Canadians think about a particular area of ​​law. Some of the most important charter cases do not remain so strong in public memory. R. v. Morgentaler, which legalized abortion, certainly does. But what about R. v. Stinchcombe; Ή R. v. Oakes – the most talked about case in fare history? To celebrate the 40th anniversary of the Charter, here are 10 of the most important – and some of the most famous – court cases from the Charter era. Most of them are from the first decade of the Charter, which reflects their fundamental nature: An early case for free expression, for example, is still relevant today.

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“These past cases are still relevant because they started what the Supreme Court of Canada is struggling with today,” said Lisa Silver, a law professor at the University of Calgary. “If you look at the older cases that started the debate on these charter rights, you will have a much richer, more robust understanding of what these issues are now.”

Andrews v. Law Society of British Columbia, 1989

This case, the first to be heard under Article 15 (equal rights), dealt with the same issue as the first case heard by the Supreme Court at the time of the charter. Sec. 15 did not enter into force in 1982 – it took another three years, a delay intended to give the legislatures and Parliament time to comply with the Charter.

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The question for Andrews, as for Skapinker, the first case, was whether the lawyers should be Canadian citizens. Mark Andrews, a British lawyer and permanent resident, wanted to join the law firm but was barred because of his nationality. Sec. 15 prevents discrimination on the grounds of “race, nationality or ethnic origin, color, religion, sex, age or mental or physical disability”. The Supreme Court found that part of the charter was not specifically limited to these nine factors, but instead, there were similar grounds for protection – citizenship was one of them. Importantly, it also set the framework that the court would use to approach equality cases. In simple terms, the court has chosen substantive equality over formal equality, recognizing that even if everyone is treated with exactly the same treatment, some will still be at a disadvantage.

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“What Andrews argued was an essential concept of equality, that the effects of laws – not just the intent of laws – would matter as part of the analysis,” said Emmett Macfarlane, a political scientist and constitutional law expert at the University. of Waterloo.

Friend v. Alberta, 1998

This was a landmark case for gay rights in Canada. Delwin Vriend was fired in January 1991 from his job at a private Christian college in Edmonton after it was discovered he was gay. Vriend tried to file a human rights complaint, but sexual orientation was not protected under Alberta’s civil rights law. In response, Vriend went to court, arguing that the act violated his equal rights under Sec. 15 of the Charter, not protecting him from discrimination on the grounds of sexual orientation. The Supreme Court agreed that the law unequally protected Vriend from discrimination because it did not include sexual orientation, and said such protections should be “read” in provincial law.

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The case, said Eric Adams, a professor of constitutional law at the University of Alberta, saw the court recognize the fact that gays and lesbians were discriminated against and, although sexual orientation was not specifically specified in Sec. 15, became a reason for discrimination from which it should be protected. (Also, from the legal point of view, he said that the courts could take over a government not only for actions it had taken, but also for things it had not done.)

R. v. Morgentaler, 1988

Perhaps the most famous case of the Supreme Court, R. v. Morgentaler breaks laws criminalizing abortion in Canada. Henry Morzentaler opened a clinic in Toronto that provided abortions in violation of the law, according to which they could only be performed in a hospital with the approval of a special committee.

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He was arrested and charged in 1983, and the case went to court until, in 1988, the Supreme Court of Canada rejected a penal code that made it illegal to have abortions, with the majority finding that the abortion ban was in violation. 7 rights to “life, liberty and security of the individual”. The decision was not unanimous – it was a decision of five or two. “It has had a dramatic and immediate impact on women’s lives in particular,” Adams said. In particular, Morgentaler was largely decided for procedural reasons – for example, the procedure for access to abortion violated Sec. 7 rights. It did not go so far as to create the right to abortion, and judges largely — though not entirely — avoided questioning whether women had the right to control their bodies or make personal decisions about abortion. To date, there is no criminal law in Canada regarding abortions, although provincial regulations have an impact on access. A year later, in 1989, the court ruled unanimously in the Tremblay v. Daigle that a fetus has no legal status in Canada.

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Canada v. PHS Community Services Society, 2011

This was the case with Insite, the supervised injection site for drug users in Vancouver’s Downtown Eastside. It has been operating since 2003 with the exception of the Law on Controlled Drugs and Substances. In 2008, Tony Clement, then federal health minister, did not extend the exemption – Insite sued and won, with the court ruling that the Conservative government’s failure to grant an exemption violated Sec. 7 rights to life, liberty and security of the person injecting drug users and caused obvious harm. He took a broad look at the social ills of the services provided by Insite that were not available – a much broader interpretation of Sec. 7 than appeared two decades earlier with the Morgentaler judgment.

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In other words, the Insite case helped show that Sec. 7 rights are not the same as other legal rights, which are intended only to deal with, say, issues such as the death penalty or the way in which the judicial system could treat a person. “This fault-based approach to this social policy issue is exactly what the court in Bedford and then Carter adopted,” McFarlane said. By the time the court legalized medical assistance in death in 2015 and overturned some prostitution laws in Bedford in 2013, McFarlane noted, constitutional experts basically knew what was going to happen, and that’s largely due to the way PHS explained Sec. 7 case law. “When PHS was decided, it was a surprise,” he said.

Carter v. Canada, 2015

This case has legitimized medical assistance to death in Canada, an issue that remains of great interest to the legislature as the courts continue to fight the laws around it and lawmakers respond. He found that the provisions of the Penal Code prohibiting assistance in death violate Sec. 7 rights to the “life, liberty and security of the individual”, and that this could not be justified. “Carter, like Morgentaler, is reaching a field of medical ethics and politics that, if it is a legal issue, is certainly full of all sorts of political, moral and religious tones, extensions, intersections,” Adams said.

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The case was raised by many people, including the family of Kay Carter and Gloria Taylor. It overturned an earlier ruling, Rodriguez v. British Columbia, 1993, which stated that there was no right to assisted suicide. The Carter ruling follows the jurisprudence of the PHS Community Services Society and basically states that governments must be careful not to infringe on the rights of people they should not, with a specific law. To use a legal term, the law can not be excessive. In other words, there may be good reasons to prohibit death with medical help to protect certain vulnerable people, but that cannot deter those who are otherwise unable to make that choice. “All things about medical help and death …