Which Canadian Supreme Court Justice are you?

Read the following summaries of Supreme Court cases and decide how you would vote on each if you were one of the Justices; then find out which current or recently retired Justice most closely agrees with your opinions. There are ten cases. Time to complete this quiz will depend on how much thought you put into each case, but we suggest you budget at least 15 to 20 minutes total. Of course, we hope that the real Supreme Court takes much more time than that.

You might want to read the Canadian Charter of Rights and Freedoms before you start, because as a Supreme Court Justice, interpreting that document is a big part of your job. There will be a quiz.

These cases are supposed to provide a cross-section of interesting and divisive cases; the choice of cases is skewed a little in favour of the quiz author's favourite subjects, but the case summaries are attempting to be unbiased. In case the case summaries here are not enough for you, each style of cause is linked to the complete decision. Every answer on this quiz corresponds to the opinion of at least one of the Justices, and so in theory there should be no dramatically wrong answers possible. You must decide all cases to receive a result.

The Honourable Mr. Justice Morris J. Fish is not included because he has not published enough decisions yet for meaningful comparison; a future version of the quiz may include him or have new or different cases. Cases and opinions are listed in random order to reduce bias. Presented by What mskala's Thinking About; other important notices are at the bottom of this page.

1. (30 January 2004) Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General): Section 43 of the Criminal Code states that "Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances." The appellant claimed that that law, by legalizing corporal punishment such as spanking, violated the Canadian Charter of Rights and Freedoms as to children, specifically Sections 7 (life, liberty, and security), 12 (cruel and unusual punishment), and Subsection 15.(1) (equality).

(1) The law should be overturned. Not only is it unconstitutionally vague, but it violates children's equality rights under Subsection 15.(1) in a way that is not saved by Section 1. The legitimate goals of education and correction, and of protecting parents, would be better served by more precise and narrowly limited legislation. Furthermore, children are a group especially at risk, who have been recognized as vulnerable "time and time again" by our courts and our society. Section 43 "perpetuates the notion of children as property rather than human beings and sends the message that their bodily integrity and physical security is to be sacrificed to the will of their parents, however misguided." It must be severed from the Criminal Code.

(2) The law can stand as to parents, but not as to teachers. Section 43 permits children to be the subject of physical force that would be criminal assault if applied to adults, thereby violating their 15.(1) equality rights. "To deny protection against physical force to children at the hands of their parents and teachers is not only disrespectful of a child's dignity but turns the child, for the purpose of the Criminal Code, into a second class citizen." However, that violation of equality rights is justified as a reasonable limit under Section 1 of the Charter. Parliament should not intrude on family life any more than it has to; Section 43 "just helps to keep the family out of the criminal courts." That justification only goes as far as parents; the schools are a very different environment from the family and corporal punishment cannot be justified under Section 1 there.

(3) The law can stand. "While children need a safe environment, they also depend on parents and teachers for guidance and discipline[.]" Corporal punishment can legitimately be part of that guidance and discipline, and is within Parliament's power to permit under the Charter. However, it only applies to corporal punishment that can legitimately correct behaviour and causes or threatens no actual harm. In particular, only children between the ages of 2 and 12 can be punished corporally, objects like rulers or belts may not be used, and blows to the head may not be used. Cases of actual abuse, going beyond reasonable corporal punishment, can still be prosecuted adequately under the assault law. Majority decision.

(4) The law should be overturned. In order to make Section 43 acceptable under the Charter, the majority has to pretend that it contains limits that are not actually included in the text - a process called "reading down". We should not do that. "The reading down of a statutory defence amounts to an abandonment by the courts of their proper role in the criminal process." Section 43 as it is actually written is unconstitutionally vague, and as such it violates Section 7 without being saved by Section 1. Parliament should write a new law setting down exactly what kind of corporal punishment they think should be allowed, instead of just leaving it up to "reasonable under the circumstances".

2. (29 January 2004) Giguère v. Chambre des notaires du Québec: Notaries are legal professionals who act as impartial witnesses for important documents called "authentic acts". A dishonest notary convinced his client, an elderly and senile widow, to sell him her house for one dollar. The sale was made in a document called a "private writing" which he drafted; but he did not perform his official function to notarize it as an authentic act. The old woman died, the notary sold the house, and then her heirs discovered the swindle. The notary lost his license, had to pay back the money, and went bankrupt, unable to pay. The heirs asked the professional organization of notaries to pay from its indemnity fund. The organization agreed to pay some money to the heirs for other things, but refused to cover the house, saying that because the document in which the notary swindled his client of her house was not an authentic act, therefore he had not done that swindle in the course of his duties as a notary, and so the indemnity fund was not applicable. Furthermore, it argued before this Court that the house was not a "sum of money or other security" (which is what the fund is supposed to cover), and for that reason also the indemnity fund was inapplicable.

(1) "The approach and conclusion adopted by the majority mean that administrative tribunals are left no margin for interpretation." Even though this is a very sad story, we must let the tribunal do its job. If every case remotely connected to a notary had to be paid out of the indemnity fund, then there would be no point having a tribunal to make those decisions at all. The rules governing which cases the tribunal should pay for are legitimately open to interpretation, it is the tribunal's job to decide those questions, and the tribunal's interpretation should be respected. At the very least, the tribunal should have the chance to hear the appeal according to its procedure before we override it.

(2) Notaries are supposed to be responsible legal professionals, and their clients trust them as such, even when they are doing other things besides notarizing documents. The client apparently believed that the notary was acting as her "lawyer" when he advised her to sell the house to him; accordingly, it was an abuse of his professional status and within the bounds of what the indemnity fund ought to cover. The indemnity fund should pay its legal maximum of $300,000 (considerably less than the amount claimed by the heirs), but interest at the standard rate should come on top of that instead of being included in the $300,000, because interest is part of the payment process rather than being a payment itself. Majority decision.

3. (23 December 2003) R. v. Malmo-Levine and R. v. Caine: M was convicted of simple possession and possession for the purposes of trafficking of more than 300 grams of marijuana in connection with operating an organization known as the "Harm Reduction Club". C was convicted of simple possession of 0.5 grams of marijuana. They argued (among other points) that the marijuana law was unconstitutional under Section 7 of the Canadian Charter of Rights and Freedoms, which promises 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.", and that the availability of imprisonment as a penalty for possession violated Section 12, which forbids cruel or unusual punishment.

(1) Parliament has the power to prohibit harmful drugs, and the use of criminal law and imprisonment to do so is acceptable under Section 7. However, "the moderate use of marihuana is on the whole harmless", and Parliament has access to better ways of regulating it to prevent the genuine harms of use. The problems caused by prohibition are worse than those caused by marijuana, and since the Crown has not attempted to justify the marijuana law under Section 1 of the Charter, the marijuana law should be overturned.

(2) "All sides agree that marihuana is a psychoactive drug which 'causes alteration of mental function'. That, indeed, is the purpose for which the appellants use it." Marijuana is known to be harmful to at least some of its users, and Parliament's interest in preventing that harm is sufficient to justify the marijuana law under Section 7. Imprisonment is just one of the possible sentences and there is no minimum sentence for these crimes; in fact, imprisonment is very seldom used as a sentence for possession alone. The marijuana law is within Parliament's constitutional power, and should stand. Majority decision.

(3) Prohibition of harmful drugs, punishing their possession with imprisonment, and so on, is within Parliament's constitutional power. However, it has not been shown that marijuana is harmful enough to public health for this law to be justified because the threatened harm is to the users themselves. "Sending vulnerable people to jail to protect them from self-inflicted harm does not respect the harm principle as a principle of fundamental justice." (Emphasis added.) The Crown would have to justify the marijuana law under Section 1 of the Charter (reasonable limits on freedoms) and it has not done so.

(4) "On the available evidence, the law, as it stands, is an arbitrary response to social problems." The problems caused by marijuana prohibition are worse than those caused by marijuana itself. Police and prosecutors are reluctant to enforce the law because they see it as "a legislative overreach". Some users end up in jail while others go free, seeming arbitrarily. Accordingly, the marijuana law should be overturned under Section 7 of the Charter.

4. (18 July 2002) R. v. Shearing: "The accused was the leader of a cult which believed that enlightenment is reached through ascension by steps of consciousness. He preached that sexual experience was a way to progress to higher levels and that he, as cult leader, could be instrumental in enabling young girls to reach higher levels through sexual and spiritual contact. He was charged with 20 counts of sexual offences[.]" There were multiple complainants, mostly but not only cult members, and allegations spanning a period of 25 years. One of the complainants, not a cult member, kept a diary for eight months starting in 1970 when she was 14, covering part of the time during which the accused allegedly sexually abused her. The diary was found in an old box of belongings by a cult member, who turned it over to the defence, who in turn attempted to use it as evidence - since it did not mention the alleged abuse. The complainant objected to the use of the diary, claiming that its use violated her privacy. The trial judge permitted the defence to cross-examine her on specific entries in the diary, but did not permit cross-examination on the absence of entries about the alleged abuse.

(1) No new trial. "A teenager's diary is high on the spectrum of records in which one has a privacy interest and the complainant had a reasonable, continuing expectation of privacy." That privacy needs protection even given the many years that elapsed and the apparently-mundane content of the diary; we should assume "that all information about a person is in a fundamental way his or her own" without judging whether the information is interesting or mundane. Nonetheless, the diary could have been legitimate evidence and the defence deserved a chance at it. The defence should have turned it over to its owner and then attempted to claim it back as evidence through the proper channels. We must be especially watchful of this kind of issue so as not to frighten others who might complain of sexual assaults - they should not be afraid that their personal diaries and such might be revealed in court.

(2) The accused should receive a new trial only on the counts relating to the complainant who kept the diary. The diary was relevant evidence to the entire case because the accused was alleged to have used the same approach to "grooming" all his victims. On the other hand, the trial judge did need to consider that its use could prejudice other parts of the case - the allegation that the accused had abused girls as young as 13, and non-members of the cult, might prejudice the jury as to the other counts. The trial judge made an acceptable decision here. The real issue was in weighing the complainants' privacy interest against the importance of the evidence; and here, the trial judge erred. Especially given that the complainant is long since an adult now, and the contents of the diary were mundane, it should have been allowed as evidence more fully. However, it was only relevant to the charges relating to this one complainant, so only those charges need to be re-tried. Majority decision.

5. (6 November 2003) Doucet-Boudreau v. Nova Scotia (Minister of Education): French-speaking parents demanded that the Nova Scotia provincial government provide their children with French-language high school - which is promised to them as a right by Section 23 of the Charter. The trial judge noted that the province was stalling on doing that, not treating it as a high priority, even though the province acknowledged that the parents and children did have a Charter right to French-language education; accordingly, he ordered that the government had to really make its best efforts this time, and he would retain jurisdiction over the case and they would have to report to him on the status of their efforts. The province successfully appealed the order, claiming that under the "doctrine of functus officio" (which basically says that judges have to buzz off once they have finished doing their jobs), he was overstepping his jurisdiction; and the Charter does not extend courts' jurisdiction to accommodate such orders.

(1) "[T]he drafting of the reporting order was anything but clear." It did not explain the parties' obligations as precisely as it should have, and it demanded more than was necessary to enforce the Charter. Thus even though the Charter gives him a lot of power and "a trial judge's decisions with respect to remedies are owed deference," the order in this case was not appropriate and just and should be overturned.

(2) The Charter allows a superior court in this kind of case to "craft any remedy that it considers appropriate and just in the circumstances."; and this remedy was appropriate and just. It was not an extension of jurisdiction but an exercise of that power to craft a remedy. Hearing the reports was legitimately part of the trial judge's job, and so functus officio (which cannot take priority over the Charter anyway) does not require him to go away. Majority decision.

6. (26 January 2001) R. v. Sharpe: The accused was charged with two counts of possession of child pornography and two counts of possession of child pornography for the purposes of distribution or sale. It was argued that some of the materials in question were fictional written words, or were pictures of activities that themselves were legal, and so prohibiting the possession of these materials was an infringement of the Charter right to freedom of expression.

(1) "The right to possess expressive material is integrally related to the development of thought, opinion, belief and expression as it allows us to understand the thought of others or consolidate our own thought." Accordingly, a ban on simple possession of materials that directly harm no-one, is problematic; an exception must be created to the child pornography law to allow possession of written words or visual representations of legal activity, as long as they are created by the accused for his or her own use and never distributed or meant to be distributed to anyone else. Majority decision.

(2) "Under our society's democratic principles, individual freedoms such as expression are not absolute, but may be limited in consideration of a broader spectrum of rights, including equality and security of the person." The child pornography law is a justifiable limit on freedom of expression; its goals are much more important than whatever dubious goals might be served by allowing possession of this material. Parliament can ban child pornography even in the case where it directly harms no-one.

7. (5 December 2002) Harvard College v. Canada (Commissioner of Patents): Some inventors applied for a patent on an invention entitled "transgenic animals", which consisted of a way of breeding genetically altered mice that would be especially susceptible to cancer, and thus useful in medical research. The patent was to cover both the "process" for producing these mice or any similar animals; and the "product" - the mice (or other animals) themselves. The patent authorities allowed the patent on the process but disallowed it on the transgenic animals themselves, finding that a higher life form is not a "manufacture" or "composition of matter", which is what this kind of patent is supposed to cover.

(1) The Patent Act was not designed to apply to higher life forms and cannot easily be applied to them. We have separate rules (the Plant Breeders' Rights Act) for plants, which suggests that living inventions or discoveries can be protected without needing them to be patentable. If we decided that the Patent Act applied to higher life forms, there would be no clear reason why it couldn't apply all the way up to human beings. In summary, it is appropriate to let the Patent Commissioner forbid this kind of patent until Parliament creates applicable legislation. Majority decision.

(2) Even though Parliament may not have anticipated the Patent Act's application to higher life forms when they wrote that Act, this invention is nonetheless a "profound and far-reaching" "scientific accomplishment" - the kind of thing the Patent Act was meant to apply to. The inventors deserve to have their work recognized, protected, and rewarded. "The massive private sector investment in biotechnological research is exactly the sort of research and innovation that the Patent Act was intended to promote." Many other jurisdictions have allowed this patent, and important policy goals argue for our patent regime being consistent with that of the rest of the world. For these reasons, the patent should be allowed.

8. (17 May 2001) Trinity Western University v. British Columbia College of Teachers : Trinity Western University (TWU) bills itself as a "Christian" institution. TWU applied to the B.C. College of Teachers (BCCT) for certification to train schoolteachers. The application was denied because TWU has a policy called the TWU Community Standards, applicable to all students, faculty, and staff, which forbids "sexual sins including . . . homosexual behaviour" under the heading of "PRACTICES THAT ARE BIBLICALLY CONDEMNED". TWU community members are asked to sign a document agreeing to the Community Standards; BCCT found that to be a violation of its own anti-discrimination policy.

(1) As a private religious institution, TWU has a well-established right to make policies on matters like homosexuality, even policies that would be unacceptable for a public institution. There was no evidence that this policy at TWU would equate to TWU-trained teachers practising discrimination in the public schools or in any other way being less fit teachers, and so BCCT practised discrimination against TWU in denying the application on religious grounds. Majority decision.

(2) The presence of discrimination at TWU, even if it is legally allowed for a religious institution and even if it is not proved to equate to discrimination in the public schools, is nonetheless within the range of things BCCT should consider. "Equality is a central component of the public interest that the BCCT is charged with protecting in the classrooms of the province." Accordingly, BCCT had the authority to deny the application on the grounds of TWU's religiously-motivated discrimination, and its decision should be upheld.

9. (20 December 2002) Chamberlain v. Surrey School District No. 36: "A Kindergarten-Grade One ('K-1') teacher asked the Surrey School Board to approve three books as supplementary learning resources[.]" The books were about families with both parents of the same sex. The Board refused to approve the books, finding that the books would cause controversy; that it was inappropriate for children at the K-1 level to be "exposed to ideas that might conflict with the beliefs of their parents"; that children at this age level (five to seven years old) were too young to learn about same-sex partnerships; and that the material was not necessary for teaching the curriculum. A Charter challenge ensued.

(1) As described by the majority, the Board should have respected the equality rights of all its constituents, not just those with religious objections to homosexual relationships, and it should not have used the "necessity" criterion. "The Board reached its decision in a way that was so clearly contrary to an obligation set out in its constitutive statute as to be not just unreasonable but illegal." Therefore the decision should be quashed, and the books should be allowed, instead of just referring the matter back to the Board for further consideration.

(2) The School Board's powers do include examination of religious concerns in curriculum decisions. "But the Board must act in a way that promotes respect and tolerance for all the diverse groups that it represents and serves." It did not do so in this case; instead it violated both the School Act and its own policies when it showed preference for the religious groups that forbid same-sex partnerships, denying the equality of parents and children who may be part of same-sex parented families themselves. One of the curriculum goals, applicable even at the K-1 level, is "that all children be made aware of the diversity of family models in our society." The Board should consider the question of the books again, and follow its procedures properly this time - considering all the curriculum goals, and whether the books are acceptable rather than whether they are necessary. Majority decision.

(3) The teacher was not asked to teach that same-sex relationships are bad; only to teach the curriculum without these particular books. By refusing the approve the books, the Board was correctly refusing to take a stand either way on a controversial and divisive subject. The legitimate concerns of equality could be, and are, addressed in the schools in other ways - for instance, in class discussions with students from same-sex parented families. Furthermore, making these kinds of decisions on the local level according to the needs and standards of the local community, is exactly the purpose of having a locally elected School Board - we should let them do their job. The Board's decision should stand.

10. (28 March 2002) Théberge v. Galerie d'Art du Petit Champlain inc.: A gallery purchased paper posters of paintings and subjected them to a transfer process in which the ink-containing surface of the poster was attached to a canvas backing, to produce a canvas-backed poster that they then sold at a higher price. The artist objected, claiming that this infringed his economic copyright (by making an unauthorized copy) and his moral copyright (by harming the reputation of his work). The gallery claimed that since the original poster was necessarily destroyed by the transfer process, no copies were made, and no damage was done to the reputation of the work; they were just exercising their property rights towards the legitimately-purchased posters.

(1) Since the number of copies in existence was not increased by the transfer operation, no "reproduction" occurred for the purposes of copyright, and so no infringement occurred. Majority decision.

(2) Copyright concerns the fixation of an idea into material form. The ink-transfer process created a new fixation into material form and accordingly it should be considered "reproduction" for the purposes of copyright, even if the original happened to be destroyed; therefore, the transfer violated copyright.