← Older revision
Revision as of 03:54, 21 January 2013
Line 68:
Line 68:
The important part of Aquina's Natural Law theory to apply here would be his views on Judicial activism and if the Judges conformed to the 'spirit' of the law. For practical application, even though Aquinas essential felt that the people didn't know what they wanted for the Common good and thus he could not have condoned Democracy, for our application in the modern he would HAVE to see the legitimacy of parliamentary democracy, lest he condone modern forms of monoarchy, namely through military coup or other non-consentual methods to gain power. As the laws refered to in the decision would be seen as valid by Aquinas then the main issue is how the judges used interpreted these laws and whether the laws were used in the same 'spirit' as intended by legislators, even if the 'letter' of the law was slightly different.
The important part of Aquina's Natural Law theory to apply here would be his views on Judicial activism and if the Judges conformed to the 'spirit' of the law. For practical application, even though Aquinas essential felt that the people didn't know what they wanted for the Common good and thus he could not have condoned Democracy, for our application in the modern he would HAVE to see the legitimacy of parliamentary democracy, lest he condone modern forms of monoarchy, namely through military coup or other non-consentual methods to gain power. As the laws refered to in the decision would be seen as valid by Aquinas then the main issue is how the judges used interpreted these laws and whether the laws were used in the same 'spirit' as intended by legislators, even if the 'letter' of the law was slightly different.
+
+
A Judgement is Just for Aquinas when
+
+
1. it proceeds from the inclination of justice
+
+
2. it comes from one who is in authority
+
+
3. that it be pronounced according to the 'right ruling of prudence'
+
+
If any of these are missing, the judgement is faulty and unlawful.
+
+
Aquinas likes to favour equity, with the quote had the 'lawgiver himself... had foreseen the case, he would have provided for it by law,'(Dimock, 31)
Wynrib commited the '''Tort of Battery'''
Wynrib commited the '''Tort of Battery'''
Line 95:
Line 107:
McLaughlin finds the Fiduciary Duty relationship between Doctor and Patient applying the framework from Frame v Smith [1987] and later used in Guerin v The Queen [1984] (Dimock, 292). After finding that the relationship did exist and a clear breach occured, McLaughlin answers the crticism of Ex Turi Causa as a bar to recovery on the basis of Norberg doing nothing wrong in her relationship with Wynrib, even though what she was doing as a whole as illegal. McLaughlin goes as far to say Double Doctoring is a 'recognized symptom of her illness' (Dimock, 293) and what Norberg did was the responsibility of Wynrib, her fiduciary.
McLaughlin finds the Fiduciary Duty relationship between Doctor and Patient applying the framework from Frame v Smith [1987] and later used in Guerin v The Queen [1984] (Dimock, 292). After finding that the relationship did exist and a clear breach occured, McLaughlin answers the crticism of Ex Turi Causa as a bar to recovery on the basis of Norberg doing nothing wrong in her relationship with Wynrib, even though what she was doing as a whole as illegal. McLaughlin goes as far to say Double Doctoring is a 'recognized symptom of her illness' (Dimock, 293) and what Norberg did was the responsibility of Wynrib, her fiduciary.
-
Aquinas would not like this decision. A concern McLaughlin brings up is the 'floodgates' argument, that recognizing a fiduciary duty here would open the door to childten suing parents, wives suing husbands, all due to the abuse of real or perceived inequality of power (Dimock, 295). McLaughlin says that the court 'has an honorable tradition of recognizing new claims of the disempowered agains teh exploitive'. One of the major points of Natural Law is the legitimacy of the valid lawmaker, the legislature/sovereign, and the courts role as mere implementors of the will of the sovereign as they have the wisdom of God to know the Common Good and what we must do to reach it. Allowing the 'tradition of recognizing new claims of the disempowered against the exploitive' bypasses the legislators and may overtime distort with the true 'spirit' of the law is. Aquinas wanted only slight variation in the letter of the law for flexibility, but to go further in defining new claims may be a bit more than Aquinas would have liked.
+
Aquinas would not like this decision. A concern McLaughlin brings up is the 'floodgates' argument, that recognizing a fiduciary duty here would open the door to childten suing parents, wives suing husbands, all due to the abuse of real or perceived inequality of power (Dimock, 295). McLaughlin says that the court 'has an honorable tradition of recognizing new claims of the disempowered agains teh exploitive'. One of the major points of Natural Law is the legitimacy of the valid lawmaker, the legislature/sovereign, and the courts role as mere implementors of the will of the sovereign as they have the wisdom of God to know the Common Good and what we must do to reach it. Allowing the 'tradition of recognizing new claims of the disempowered against the exploitive' bypasses the legislators and may overtime distort with the true 'spirit' of the law is. Aquinas wanted only slight variation in the letter of the law for flexibility, but to go further in defining new claims may be a bit more than Aquinas would have liked.
Line 101:
Line 113:
Wynrib breached his '''contractual obligation''' to his patient Norberg
Wynrib breached his '''contractual obligation''' to his patient Norberg
-
+
Sopinka based Wynrib's wrong on a contractual breach between doctor and patient. He disagreed with McLaughlin that some aspects of the Doctor-Patient relationship involves fiduciary duties, but not all facets of the obligations are fiduciary in nature (Dimock, 299).
-
+
Sopinka reocgnized 2 relationships, a contractual one of doctor and patient, and another private relationship that continued. While Norberg may have consented to the sexual encounters (in the private relationship), she could not have consented to the breach of duty to treat her 'in accordance with standards in the profession' in the Doctor-Patient contractual relationship by not referring her to rehabilitation and other such services after being aware of the addiction. Sopinka takes it a bit far saying that barring an unequivocal consent to cease treatment on her, the Doctor-Patient relationship persisted until Norberg checked into a rehabilitation centre on her own initiative. On Ex Turi Causa, Sopinka agrees with both La Forest and McLaughlin in why it should not bar the claim in this case and added 'Emphasis is now placed on preserving the administration of justice from the taint that would result from the approoval of a transaction that a court ought not to countenance' (Dimock, 300). This is a Common Good argument that recognized a Common Good of defending the integrity of the legal system for public order and the flexibility to change with the times and to make decisions that would be acceptable to 'fair-minding, right-thinking, people' (Dimock, 300).
+
+
Aquinas might say the application of contract law here would go a bit far, but would agree with the reasoning behind not using Ex Turpi Causa here as to use it would produce a result not conductive to the Common Good of maintaining order be seeing the sovereign as legitimate.
+
+
== '''Legal Positivism''' ==
== '''Legal Positivism''' ==
A positivist theorist such as Hart would say that there was no law governing the sexual acitivty that took place between Norberg and Dr. Wynrib. There was and would be public outrage over the circumstances no doubt, but as we know from the viewpoint of legal positivism, public outrage does not equal breaking the law, one of the situations consistently brought up to support this point is Nazi Germany, where laws were in place that were degrading and prejudice to certain groups of people; but it was a law, and laws are to be followed according to legal positivism. In this case there was only the aspect of public outrage, opinion, and public mistrust of Doctors that came into question. Battery was raised as a potential law being broken, but consent is a defense to battery. In our case it appears that there was consent to the sexual activity taking place between Norberg and Dr. Wynrib. The question then becomes was the consent given under the influence of the addiction to the prescription drug.
A positivist theorist such as Hart would say that there was no law governing the sexual acitivty that took place between Norberg and Dr. Wynrib. There was and would be public outrage over the circumstances no doubt, but as we know from the viewpoint of legal positivism, public outrage does not equal breaking the law, one of the situations consistently brought up to support this point is Nazi Germany, where laws were in place that were degrading and prejudice to certain groups of people; but it was a law, and laws are to be followed according to legal positivism. In this case there was only the aspect of public outrage, opinion, and public mistrust of Doctors that came into question. Battery was raised as a potential law being broken, but consent is a defense to battery. In our case it appears that there was consent to the sexual activity taking place between Norberg and Dr. Wynrib. The question then becomes was the consent given under the influence of the addiction to the prescription drug.