Course:Law3020/2014WT1/Group I

E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388

This page considers and discusses how a variety of dominant theoretical legal perspectives illustrate and explain the key issues in the case E. (Mrs.) v. Eve, and how the approaches taken by the court parallels and contrasts with these various perspectives. The theoretical perspectives to be discussed are as follows:

Natural Law

Positivism

Separation Thesis

System of Rights

Liberty-Paternalism

Law as Efficiency

Feminist Jurisprudence

Home (E. (Mrs.) v. Eve)

Brief Summary of E. (Mrs.) v. Eve

E. (Mrs.) v. Eve is a case delivered by the Supreme Court of Canada regarding a request by a mother to have her "mentally retarded" daughter sterilized. This was a landmark case in Canadian law.

Facts

Eve was a 24-year-old female suffering from extreme expressive aphasia, a condition in which the patient is "unable to communicate outwardly thoughts or concepts which she might have perceived". Eve was unquestionably at least "mildly to moderately retarded", with some learning skills, but only to a limited level.

When she was twenty-one, her mother sent Eve to a school for retarded adults in another community during the weekdays. While at school, Eve struck up a close relationship with a male student, and even began talking about marriage. This situation naturally troubled Mrs. E, who feared that Eve might innocently become pregnant. Mrs. E was concerned that Eve would not be able to adequately cope with the "duties of being a mother and the responsibilities that would follow". As a widow approaching 60, having a granddaughter to fully care for would cause her much difficulty. Thus, she decided that Eve should be sterilized.

Mrs. E wanted to be sure that she had a right to consent to the sterilization of Eve, so she applied to the trial court for the following remedies:

(a) that Eve be declared a mentally incompetent pursuant to the provisions of the Mental Health Act;

(b) that Mrs. E. be appointed the committee of the person of Eve;

(c) that Mrs. E. be authorized to consent to a tubal ligation operation being performed on Eve.

At issue was the fact that tubal ligation was an irreversible surgery to be done, in this instance, for "non-therapeutic" reasons.

This case will be examined through the following legal theories:

Natural Law

Positivism

Separation Thesis

System of Rights

Liberty and Paternalism

Law as Efficiency

Feminist Jurisprudence