1. The Defence of Provocation
The Supreme Court of Canada has reinstated the 2nd degree murder conviction of a woman who stabbed her sister-in-law 45 times because she insulted her and belittled her level of education. The Quebec Court of Appeal overturned her initial conviction, stating that the defence of provocation should have been put to the jury. However, the Supreme Court wrote “The defence of provocation requires that there be a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self-control and that the accused act on that insult before there was time for her passion to cool…a properly-instructed jury could not conclude that an ordinary person in the accused’s circumstances would be deprived of self-control when ‘scolded’ about her level of education to such a degree that she would stab a person 45 times in a responsive rage. It has no air of reality.”
2. Marriage or No Marriage?
A Calgary woman wanted a divorce from her husband. The problem: he alleged that they were both already married when they married each other, and so there was no legally valid marriage. The couple married in Pakistan and both conceded that polygamous marriages are allowed there. The wife wanted a divorce rather than nullifying the marriage because it would allow her to claim a monetary settlement and regain her honour. At a trial to determine the granting of a divorce, the judge refused to hear evidence or further argument, and dismissed the application because the wife conceded in her claim that the husband was married at the time of their marriage. The Alberta Court of Appeal decided that this case must proceed to a trial to determine whether or not the wife is entitled to a divorce or a declaration that the marriage is a nullity. Justice Bielby gave numerous reasons, including that Alberta divorce procedure generally requires that a foreign marriage be proved by evidence, and that the wife was entitled to a divorce under Canadian law, instead of resorting to the courts in Pakistan, as the trial judge suggested. Justice Bielby also gave a very interesting review of the law of polygamous marriages in Canada, but the other 2 appeal court judges commented: “While we do not necessarily disagree with the discussion about the status of polygamous marriages in Canada, we prefer not to comment on that topic at this time. Whether the law respecting polygamous marriages remains as it was in 1866 can be left for another day.”
3. Should a “Sperm-dad” Have Access?
A sperm donor father asked an Ontario court for interim access to his 22-month-old son pending a trial scheduled for this fall. The child’s biological mother and her partner oppose both interim and long-term access. They point out that the sperm donor, who was a friend of the mother’s, signed an agreement that he would never contact the baby. The mothers feared risk to the child if interim access to the donor father began, only to be discontinued if they are successful in opposing access at trial. Justice Karam of the Ontario Superior Court decided that it is too risky to allow access just yet. He wrote “Despite the child’s young age, it is impossible to know what disclosure of his [the father’s] status as a parent might mean. All circumstances considered, the risk of there being an adverse effect to the child is too great to ignore.”
Deblois v. Lavigne, 2012 ONSC 3949
4. What Qualifies as an Accident?
The Supreme Court of Canada recently examined the question of what constitutes an accident caused by a motor vehicle. A Quebec driver was killed when his car was hit by a falling tree. His family sued the City of Montreal, arguing that it should have properly maintained the tree. The City argued that the family should be seeking compensation from the provincial no-fault insurance program. At trial, the court agreed, and dismissed the claim against the City, and then the Quebec Court of Appeal dismissed the case against the insurance program, ruling that the accident did not involve a motor vehicle. The Supreme Court of Canada ruled that the Appeal Court defined “accident” too narrowly. It wrote “On the facts of this case, the Act applies to R’s accident. Although the vehicle may have been stationary or moving through an intersection, the evidence on the record is that R was using the vehicle as a means of transportation when the accident occurred. This is enough to find that the damage arose as a result of an “accident” within the meaning of the Act and that the no-fault benefits of the scheme are triggered.”
Only Manitoba and Quebec have no-fault government insurance programs, but the Supreme Court’s definition of a motor vehicle accident could have an impact on other cases involving motor vehicles.
Westmount (City) v. Rossy, 2012 SCC 30
5. Right to Assisted Suicide
A B.C. woman suffering from a terminal and debilitating illness has successfully asked the court to give her the ability to have a physician-assisted death in the future, if she so decides. Justice Lynn Smith decided that laws prohibiting physician-assisted death violate Gloria Taylor’s Charter rights to equality and to life, liberty and security of the person, and that they are discriminatory, disproportionate and overbroad. The judge placed a number of conditions on when and how Ms Taylor can use the ruling, and also suspended its application for one year to give Parliament a chance to change the laws so that they do not violate the Charter. The federal government appealed both the decision and the court’s exemption to the one-year suspension for Ms Taylor. However, another Justice of B.C.’s Supreme Court ruled that Ms Taylor’s exemption should stand, noting that taking it away would cause her irreparable harm which far outweighs any interest of the federal government.
About Teresa Mitchell
