Abstract
Lawyers, law teachers and law students, especially in Canada, often talk about how judges reach decisions in their efforts to explain the reasons for legal judgments. But, as Chapters One and Two indicate, investigations of how judges reach decisions, commonly called the process of discovery, have been unsystematic and anecdotal. Madame Justice Bertha Wilson’s opinion in R v Morgentaler, Smoling and Scott 1, however, seems to offer a precise account of how she “actually” reached her judgment. Her analysis of the right to liberty provides an opportunity to examine, in detail, the role “discovery” plays in legal reasoning.
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References
RvMorgentaler, Smoling and Scott [1988] 1 S.C.R. 161–172.
S. 7 of the Canadian Charter of Rights and Freedoms states: “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 principals of fundamental justice.”
The first case to explicitly state it was dealing with substantive issues was the Re B.C. Motor Vehicle Motor Vehicle Act (1985) 2 S.C.R. 486.
The Queen v Henry Morgentaler (1990), 99 N.S.R. (2d) 293 (T.D.)
The Queen v Henry Morgentaler (1991), 104 N.S.R. (2d) 361 (CA.)
Rv Morgentaler,1199313 S.C.R. 463.
Morgentaler v PEI (Min of Health & Social Services) (1994), 112 D.L.R. (44) 756 (P.E.I. S.C.) - under appeal
Morgentalery 77teA-G (N.B.) et al. (CF. No. F/M/24/94)
The Charter of Rights is part of the Canadian Constitution and the Canadian Bill of Rights is federal legislation.
This question and the other quotations in italics in this chapter are not underlined in Wilson’s text.
R v Morgentaler,162.
ibid., 53.
ibid., 171.
ibid., 172
Wilson does not define or interpret `life“ in s. 7 of the Charter in her legal opinion.
ibid., 171.
ibid., 172.
ibid., 172.
ibid., 172.
ibid., 172.
ibid., 172.
In that case, Dickson advocated discovering the meaning of Charter rights by considering the “purpose” of the Charter in general and the “purpose” of the particular right in question.
Aristotle, On Rhetoric, trans. G. Kennedy ( Oxford: Oxford University Press, 1991 ).
He also identified a non-artistic mode of persuasion which involves presenting the testimony of witnesses. Artistic modes of persuasion, on the other hand, are modes of persuasion invented by the speaker. For example, two common lines of argument Aristotle identified were arguments using enthymemes (conclusions with supporting reasons) and illustrations. He further identified other lines of argument, for example arguments from a previous judgment about the same or a similar matter, arguments from definitions, and arguments from consequences.
For a general discussion of this aspect of persuasion see G. Barden, After Principles, ( Notre Dame: University of Notre Dame Press, 1990 ), 128–131.
R v Morgentaler,161–62.
For example, she does not compare or explain why her interpretation or definition of liberty is more suitable than others. Remembering that in this case three doctors have been indicted, perhaps one way to answer the constitutional question would be to define the right to liberty from their point of view as a right to perform safe medical procedures when a person’s physical or psychological health is threatened and she has consented to the procedure. She does not evaluate why the reasons that support the judgment that the law should not be used to compel a woman to carry a foetus to term are more persuasive than the reasons why the law should be allowed to compel a woman to carry a foetus to term. She neither explains why nor how a woman’s right to decide whether or not to terminate her pregnancy leads to greater human dignity nor what she means by human dignity.
ibid., 166.
ibid., 166.
ibid., 171.
ibid., 172.
The problem of axiomatic and rhetorical expression had best be treated in the context of my answer to the question “What is the nature of discovery in legal decision-making?” The related problem is the connection between deductive and inductive logic.
ibid., 171.
ibid., 171.
ibid., 172.
ibid., 172.
ibid., 172.
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Anderson, B. (1996). Examining “Discovery” and A Woman’s Point of View as Justificatory and Rhetorical Strategies in Madame Justice Wilson’s Analysis of The Right to Liberty in R v. Morgentaler, Smoling and Scott . In: “Discovery” in Legal Decision-Making. Law and Philosophy Library, vol 24. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-0554-7_3
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