Running Head: LAW ASSIGNMENT 1

Law Assignment

Student Name:

Professor:

Date:
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Question # 01

PPA301: Case AnalysisCharter v. Canada appeal in this case:

In the Charter v. Canada case, the corresponding sections 241(b) and Section 14 are challenged.

The court found S.241(b) of the criminal code, anyone who aids a person in committing suicide

commits an indictable offense, and S.14, no person many consents to death being inflicted on

them, violates S.7 of the Charter of Rights and Freedom. The objective of S.241 (b) and S.14,

combined, prohibits physician-assisted dying. The judge considered the vulnerabilities of those

who cannot speak on their behalf, the consequences of legalizing physician-assisted suicide and

the continuing consequences of prohibition.

Many controversial facts are surrounding deregulating physician-assisted deaths. Many in

society view physician-assisted death as ethically immoral because of the idea of ending

someone’s life. On the other side of this ethical argument, physician-assisted dying is ethically

moral because it is wicked to let someone live in intolerable pain; their sanctity of life is

compromised.

Section 7 of the Charter guarantees fundamental justices: the right to life, liberty, and security of

persons. The judge found that the prohibition on physician-assisted dying violates S.7 of the

Charter. First, the prohibition deprives individuals of autonomy and the rights to liberty. The

prohibition denies people, in a situation of intolerable pain, the right to make their own decisions

that concern their own body and medical care. Second, prohibiting violates the security of the

person. By banning physician-assisted suicide, those who seek such assistance, because of

intolerable pain, is left enduring the pain and medical costs until death, therefore infringing on

their security of the person. Lastly, the prohibition severely breaches the right to life, in both
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direct and indirect ways. Directly violates persons' right to life by allowing the suffering from

painful diseases, or paralysis, to continue. Those who want to make their own decision of ending

their life will bring them happiness, as it decreases their pain or suffering. The prohibition

indirectly imposes death, or increases risk of death, on a person because individuals fear the

probation will affect the future. The conclusion found in the first case functions as a base for the

conclusion of this case; because both cases are similar, the foundation is kept in tack; therefore, it

is unfair and unjust to find the infringement under S.1 of the charter without revisiting the case of

Rodriguez.

The absolute prohibition on physician-assisted dying is rationally connected to the goal of

protecting vulnerability in times of weakness; thus prohibiting an activity that poses certain risks

is a rational method of avoiding the risks.

S. 241(b) and S.14 of the Criminal Code infringes individuals to their right to life, liberty, and

security of the person

Constitutional law

 Division of powers: provisions prohibiting physician-assisted dying

 Charter of Rights: Right to life, liberty, and security of person; fundamental justice

1) Claims: prohibiting physician-assisted dying infringes s.7 of the Canadian

Charter of Rights and Freedoms-

2) S. 241(b) of the criminal code: anyone who aids a person in committing suicide

commits an indictable offense-

3) S. 14: no person many consents to death being inflicted on them

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I believe that the courts made the right conclusion by both claims of infringements. The judge

found that the prohibition of physician-assisted death violates Section 7 of the charter.

Prohibiting those who are in excruciating pain from assisted suicide is a violation of one’s rights

and sanity of life. The security of the person restricts an individual’s right to make decisions

about the individual’s body, and section 241(b) constitutes a limit on personal autonomy. A

person’s autonomy is an important concept, and the ban on physician-assisted death imposes a

limit on an individual for controlling the end of his or her life. The principle of autonomy gives

individuals rights to end their life. The principle of independence provides the individual with

the right ultimate personal liberty. Independence gives individuals freedom from external

control; therefore, by legalizing physician-assisted deaths, the individual is allowed to decide on

how their life will end, and leadings to happiness.

3. Administrative law is based on the purposes of maintaining and legalizing government activity

and implemented laws are fair to all individuals. In this Charter v. Canada case, the court

deferred the rewrite of the legislature to parliament and provincial legislature; this is an

illustration of legalizing government action. A primary principle of administrative law is to

ensure that the actions and decisions of government are authorized by parliament or by the

provincial legislature. The courts made a ruling and implemented a constitutional change of the

legislature. Therefore the rewrite of the legislature needs authorization from parliament. The

legislature affects all citizen.

Question # 02

On September 28, 2010, Justice Susan Himmel of the Ontario Superior Court of Justice gave her

verdict in the case of Bedford v Canada, 2010 ONSC 4264 [Bedford]. Justice Himmel’s

decision, which essentially has the effect of decriminalizing prostitution in Canada, drew a
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pointed and fierce reaction. Commentators across various disciplines were quick to articulate

their position on the emanations of the judgment, and even federal politicians waded into the

controversy. For instance, Winnipeg Tory MP Joy Smith has stated that, with the Bedford ruling,

the nation is taking on the role of a “pimp.”

Given the subject matter of the judgment, the discussion – and, in some cases, the hysteria –

surrounding Bedford is understandable: Justice Himmel finding that three Criminal Code, RSC,

1985, c C-46 [Criminal Code] provisions under scrutiny violated the Charter rights of the three

applicants, and could not be upheld under s. 1, could have a massive impact on a notoriously

controversial subject.

The three applicants – Terri Jean Bedford, Amy Leibovitch, and Valerie Scott – argued that the

impugned provisions of the Criminal Code undermined their ability to work in safe conditions,

out of fear that safeguards would leave them vulnerable to prosecution. They alleged that

s. 213(1)(c) of the Criminal Code, which makes it illegal for anyone to communicate to engage

in prostitution, violated their s. 2(b) Charter rights to freedom of expression. They also argued

that ss. 210, 212(1)(f), and 213(1)(c) – the provisions on bawdy houses, living on the avails of a

prostitute, and communication, respectively – violated their right to life, liberty, and security

under s — 7 of the Charter.

Conversely, the Attorney General of Canada argued that the prostitution laws should be upheld,

noting that Parliament “has decided to criminalize the most harmful and public emanations of

prostitution.” They presented the applicants’ argument under s. Seven was based on the “false

premise” that there is a constitutional right to engage in prostitution. They also maintained that

prostitution is often linked to other harmful and criminal activities such as drug addiction and

human trafficking.
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In the Shadow of the Prostitution Reference

JusticeHimmel’sjudgment in Bedford comes in at more than 130 pages. This remarkable show of

verbosity seems at least justified. Upon a close reading, it is evident that the esteemed judge was

well aware that the case would be subject to extensive appellate scrutiny. The polemical nature

of the case also suggests that the careful and measured consideration of the evidentiary record

included also makes sense. Moreover, given that there were “over 25,000 pages of evidence in

88 volumes, amassed over two and a half years” for the court’s consideration, a shorter judgment

may have failed to provide a sufficiently nuanced articulation of the issues at stake.

The Parties’ Positions and the Court’s Conclusions

Although the judgment provides an incredibly detailed and nuanced account of the parties’

positions, in this case, the applicants' view can be summed up as follows. They argued that the

three Criminal Code provisions essentially forced sex workers into compromising and unsafe

situations out of fear of prosecution.

The Crown presented sex workers as victims, people who turned to prostitution as a career

option due to poverty, homelessness, or addiction. The evidence put forward by the responded

also argued: "distinctions between indoor and outdoor prostitution are not meaningful." In

addition to pointing to the essential moral objectives that are surveyed by the current laws, the

respondent also submitted expert evidence of international experiences in decriminalization to

show that it may not be the best approach for the social management of prostitution.

(i) Section 7 Analysis

Justice Himel quickly concludes that the s. Seven liberty interest of the applicants are engaged,

given the availability of imprisonment for all the impugned provisions.

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In considering the security interest, the applicants submit that the provisions “materially

contribute” to the harm faced by prostitutes, while the respondent relied on Blencoe v British

Columbia (Human Rights Commission), [2000] 2 SCR 307, to argue that there needs to be a

direct causal connection between the harm alleged and the state action.

In rejecting the respondent’s demand for a causal connection, Justice Himel relies on Suresh v

Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3, and Canada (Prime

Minister) v Khadr, [2010] 1 SCR 44, which do not demand that the government’s action be a

“necessary precondition” of the harm in question, but rather that the “government need only

contribute…in a way the Court finds to be sufficient.” Although a connection “sufficient” for the

Court is an undesirably vague standard that allows for almost unlimited judicial discretion,

JusticeHimmel’sreading of the law certainly seems on point. After undertaking a rigorous

analysis of the expert evidence put forward by both parties, Justice Himel concludes that the

applicants have proven the burden described above on a balance of probabilities.

The court then considers whether the deprivations are by the principles of fundamental justice,

on four grounds: arbitrariness, overbreadth, grossly disproportionate of the harmful effects, and

the rule of law.

(ii) Section 2(b) Analysis

Justice Himel then considers the freedom of expression argument put forward by the applicant

under s. 2(b) of the Charter. She notes that the Supreme Court of Canada found the law to be

a prima facie violation of the Charter in the Prostitution Reference, and immediately proceeds

with an s. 1 analysis. Her conclusion is that:

In pursuing its legislative objective, the communicating provision so severely trenches upon the

rights of prostitutes that its pressing and substantial purpose is outweighed by the resulting
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infringement of rights. This rights infringement is even more severe, given the evidence

demonstrating the law's general ineffectiveness in achieving its purpose. By increasing the risk

of harm to street prostitutes, the communicating law is too high a price to pay for the alleviation

of a social nuisance.

Looking Forward

At the appellate level, it will be interesting to see how the courts view

JusticeHimmel’sinterpretation of Suresh and Khadr, and her conclusion that the applicant need

only show that there is a “sufficient connection” between the impugned provisions and the

deprivation of security. Although the court grounded its reasoning in multiple Supreme Court of

Canada cases, higher courts may feel the utilization of a standard set in a case involving alleged

terrorism and repatriation from a foreign military prison is inappropriate in a prostitution case

and sets the bar too low for the security interest to be engaged.

Given the deeply political nature of the political debate, the evidentiary record could frankly be

read either way, and the appellate courts have an incredibly arduous task ahead of them.

International jurisdictions have created licensing provisions for prostitutes. If the cost of entry for

licensing is too high – a distinct possibility if the aim is to discourage entry into sex work – the

provisions may have the effect of creating a new form of “illegal” prostitution. If that is where

we end up, all of this legal wrangling will have been for naught.