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Lecture 2

DCC3103 Lecture 2: January 16th
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3 Pages
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Department
Droit (Certificat)
Course Code
DCC3103
Professor
Simard

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Week 2 Slide 2: The Physical Person:  Daigle v. Tremblay  What do the words “human being” at sections 1 of the Civil Code of Quebec and the Charter of Rights and Freedoms refer to?  What conditions need to be satisfied to acquire juridical personality?  Montreal Tramways Co. v. Léveillé  When does one’s juridical personality take effect?  Retroactivity of one’s juridical personality? Daigle vs. Tremblay • Section 1 of civil rights of the charter of rights and freedoms • Defacto spouses: common law spouses. • The case: Mme Daigle wants to have an abortion and never wants to never see Tremblay again. Tremblay looks for an injunction (an action or order to seek to stop something. A court order, to render an order to do something or not to do something). • First level court (superior court) grants the injunction and orders Mme. Daigle to not get an abortion. Mr. Tremblay argues that the fetus is a human being and has the right to life. Daigle appeals the decision, and the court of appeals do not grant the appeal and say that the first judge was correct. Mme Daigle goes to the U.S and gets an abortion. She then files an appeal to the Supreme court. • The arguments presented to the Supreme Court by Tremblay are: - The fetus has a right to life to the Canadian charter and the Quebec charter (civil code). The supreme court says that you need juridical personality to have rights. The court says that you acquire your judicial personality when the fetus is born alive and viable. In law, a fetus is not a human being. - As a future father he has a say in his child’s life (court says you can’t be a prospective father, you’re either a father or you aren’t therefore this has no basis) • The fetus has to be able to breathe on its own outside of its mother's womb to be born alive. • Viable: the child has the potential to survive. Montreal Tramways Co. v. Léveillé • The respondent in that case is Léveillé, and he is suing MTC for damages for which he says are the result of negligence of MTC of his wife during her pregnancy (she fell), and the child ended up with club feet. He asks that his child be compensated for this by awarding the father with damages. • You have to prove fault, damage, causal link between the 2 to get compensation. • How can a child that has not been born alive and viable have any rights and seek compensation? The superior court of Quebec states awards $5,000 (in 1933) so they recognize that the child in their mothers womb deserves compensation. MTC appeals to the King’s bench, but the court upholds the decision. They appeal the appeal to the supreme court of Canada. • The Supreme Court says that because the child was still in its mother womb, in as much as you are born, you receive your juridical p
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