The Stübing Case: Incest and Human Rights in the Canadian Context

This essay provides a comprehensive analysis of the Stübing v. Germany case, evaluating how the European Court of Human Rights' decision would be resolved under Canadian law. The essay focuses on whether the infringement of Article 8 rights, specifically those related to family and private life, is justified within the Canadian context. It examines the application of the Canadian Charter of Rights and Freedoms, particularly section 8 regarding privacy and section 2 regarding secular legislation. The analysis delves into the Oakes Test, used to determine reasonable limits on rights, and the proportionality test. The essay explores the concept of limits, the margin of appreciation, and the principles of fundamental justice. The conclusion affirms that rights are not absolute and can only be infringed lawfully based on legal principles. The essay references several Canadian case laws and scholarly articles to support its arguments and provides a detailed examination of the legal framework surrounding incest and human rights in Canada.

Running Head: INCEST AND HUMAN RIGHTS
INCEST AND HUMAN RIGHTS
Name of the Student
Name of the University
Author’s Note

1INCEST AND HUMAN RIGHTS
Table of Contents
INTRODUCTION:..........................................................................................................................1
HAS A RIGHT BEEN INFRINGED:.............................................................................................1
IS THE INFRINGEMENT JUSTIFIED:.........................................................................................2
LIMITS:...........................................................................................................................................3
GATEWAY:....................................................................................................................................4
CONCLUSION:..............................................................................................................................5
BIBLIOGRAPHY:..........................................................................................................................6
Case Laws:...................................................................................................................................6
Journals and Scholars:.................................................................................................................7

2INCEST AND HUMAN RIGHTS
INTRODUCTION:
The case of Stubing vs. Germany1, it can be explained that the European Court of Human
Rights had decided that Germany had not acted in violation of Article 8 of the European
Convention on Human Rights. Article 8 states that every person should have the right to respect
for the private and family life. Thus, the decision of the court was in favour of Germany by
holding Patrick guilty of incest.
HAS A RIGHT BEEN INFRINGED:
Section 173 of the German Criminal Code states that the act of engaging in consanguine
sexual intercourse relationship shall be prohibited by law. However, it was claimed by the
Patrick that the decision of the court has amounted in infringement of his right as enshrined in
Article 8. The landmark case in Canada has decided in consideration with section 8 of the
Canadian Charter of Rights and Freedoms which states that an individual’s right to reasonably
expect privacy and to limit the action of the government to interfere in such privacy shall be
protected. However, the extent of such rights related to privacy of people should be balanced at
par with the duty of the government with respect to the enforcement of law.
The doctrine of purposive interpretation has been reaffirmed in the case stating that the
interpretation of statute with respect to rights and duties of a person should be interpreted along
with the purpose of such rights and duties being enshrined upon such person2. Thus, the rights
and duties as provided by a statute is subject to the reasonability of the government’s framework
1 Stubing vs. Germany [2012] 43547/08
2 Hunter vs. Southam Inc [1984] 2 SCR 145

3INCEST AND HUMAN RIGHTS
to exercise its power legitimately for unremitting the rights and freedoms of the individual as
protected by law.
Further, it has been decided by the Canadian Court that section 2 of the Canadian Charter
of Rights and Freedoms states that a legislation is ought to be secular in nature. It cannot
establish a pre-requisite which may be religion-based3.
IS THE INFRINGEMENT JUSTIFIED:
The famous Oakes Test4 was established by the Court of Canada for the analysis of
section 1 of the Canadian Charter of Rights and Freedoms stating that legislations may explain
reasonable limitations that may be implied on the rights and freedoms of the people. Reasonable
limitations refer to the limitations which may be reasonably justified in a free and democratic
society. In this case, the party challenged the reverse onus of proof in violation with the
presumption of innocence as guaranteed under section 11 (d) of the Charter of Rights and
Freedoms.
The proportionality test as laid down by the court in Oakes Test states the parties to
establish the following:
 The measures which are adopted by the parties should be adequate to the objective for
which such measures have been taken.
 The means of measure which are to be adopted by the parties should affect the right or
freedom which may be infringed or interfered with should be at its minimal.
3 R vs. Big M Drug Mart Ltd [1985] 1 SCR 295
4 R vs. Oakes [1986] 1 SCR 103

4INCEST AND HUMAN RIGHTS
 The proportionality is an important aspect which should be balanced between
measurement of the effect of the measures which are taken for limiting the rights and
freedoms of the people as enshrined in the Charter, and the objective for which such
measures have been adopted. These objectives are of the sufficient importance to
establish the need for the measures.
In this test as established by the court, it is the duty of the party seeking the justification of
the infringement of the right or the freedom to establish the proof that the right or the freedom
has been infringed.
LIMITS:
It has been explained by the court that the principles relating to the margin of appreciation
explains that the relationship between an incestuous relationship and such relationship between
two consenting adults and the decision of the court which may interfere with the intimate aspect
of the private life of an individual.
It has been explained that the limitation of the rights with respect to the resurrection of
the plenary power of the legislation is that the rights and freedoms as limited by the purview of
legislations as established by the Federal unit of legislation shall be applicable on the grounds of
conscience and morality5. However, it can be argued that the private of a person cannot be
subject to the legislative power of Federation. However, it can be explained that the right to
private life of a person is guaranteed by law and hence, the law retains the power to limit the
same subject to the conscience and moral aspects of society.
5 Hörnle, Tatjana. "Consensual Adult Incest: A Sex Offense?." New Criminal Law Review: In International
and Interdisciplinary Journal 17.1 (2014): 76-102.

5INCEST AND HUMAN RIGHTS
It has been explained that the limits with respect to the strengthening of the system of
rights with respect to its protection is that although the rights and freedom of a person is
protected by the law6. Hence, it can be explained that the limitation upto which the limitation can
be imposed shall also be defined by law so that the right to privacy of a person is not infringed
with ultimatum of the government. The limitation implies the reasonable grounds on which the
privacy of a person can be interfered by the government. However, such reasonable limitations
are also controlled by law so that these limitations are not otherwise used to invade a person’s
private life. Hence, it is the law which establishes the person’s right over their privacy and at the
same time, it also limits the right and further imposes limitation on the limit of right to privacy
that can be invaded by the government.
GATEWAY:
It can be explained that the infringement of the right to privacy as imposed by law shall
be controlled by law itself. The law in itself establishes the limitation on which the reasonable
limitations can be imposed on a person’s right to private life. Section 7 of the Charter of Rights
and Freedoms of Canada establishes the right to private life of the people. However, it can be
explained that there are three types of protection which has been enshrined to people of Canada:
right to life, right to liberty and security of the person. However, the concept of fundamental
justice establishes that these constitutional rights may be denied to a person based on reasonable
grounds. These grounds relate to the sufficient societal consensus based on which, the legal
system should operate and the standards based on which the rights to life, liberty and security
may be deprived to any person7.
6 Machotka, Pavel, Frank S. Pittman, and Kalman Flomenhaft. "Incest as a family affair." Family
Process 6.1 (1967): 98-116.
7 R vs. Malmo-Levine [2003] 3 SCR 571

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There are certain principles of fundamental justice like arbitrariness8, vagueness9,
overbreadth10, gross disproportionality11, requirement of mens rea12, shocks the conscience13,
principles of natural justice14, right to silence15, moral culpability for youth16 and so on based on
which the right to private life and liberty of any person is deprived. These grounds establish the
fact that the proportionality between the objective of an act and the consequence of the act
should be at par with each other to balance the proportion of right and duties as established by
law.
CONCLUSION:
It can be concluded that the rights of the person is never absolute. However, the rights
can only be infringed lawfully based on the principles of fundamental justice as established by
law and legal principles. Thus, it can be explained that incestuous relationship as established in
Stubing vs. Germany would have been held unlawful and the person engaged in such act would
have been found guilty to the incestuous act.
8 Rodriguez vs. British Columbia (AG) [1993] 3 SCR 519
9 R vs. Nova Scotia Pharmaceutical Society [1992] 2 SCR 606
10 R vs. Heywood [1994] 3 SCR 761
11 R vs. Malmo-Levine [2003] 3 SCR 571
12 R vs. Vaillancourt [1987] 2 SCR 636
13 Canada vs. Schmidt [1987] 1 SCR 500
14 R vs. Stinchcombe [1991] 3 SCR 326
15 R vs. Herbert [1990] 2 SCR 151
16 R vs. DB [2008] SCC 25

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BIBLIOGRAPHY:
Case Laws:
Canada vs. Schmidt [1987] 1 SCR 500
Hunter vs. Southam Inc [1984] 2 SCR 145
R vs. Big M Drug Mart Ltd [1985] 1 SCR 295
R vs. DB [2008] SCC 25
R vs. Herbert [1990] 2 SCR 151
R vs. Heywood [1994] 3 SCR 761
R vs. Malmo-Levine [2003] 3 SCR 571
R vs. Malmo-Levine [2003] 3 SCR 571
R vs. Nova Scotia Pharmaceutical Society [1992] 2 SCR 606
R vs. Oakes [1986] 1 SCR 103
R vs. Stinchcombe [1991] 3 SCR 326
R vs. Vaillancourt [1987] 2 SCR 636
Rodriguez vs. British Columbia (AG) [1993] 3 SCR 519
Stubing vs. Germany [2012] 43547/08

8INCEST AND HUMAN RIGHTS
Journals and Scholars:
Hörnle, Tatjana. "Consensual Adult Incest: A Sex Offense?." New Criminal Law Review: In
International and Interdisciplinary Journal 17.1 (2014): 76-102.
Machotka, Pavel, Frank S. Pittman, and Kalman Flomenhaft. "Incest as a family affair." Family
Process 6.1 (1967): 98-116.