Reproductive Rights and the Charter. Criminal Code of Canada (1968)
Issue: does abortion section of Crim Code (251) violate s. 7?
5 to 2: yes, but 3 different opinions:
Dickson, Lamer: 251 violates sec 7 of person; inadequate procedural safeguards. No Dn of “health.” S1 Obj: “life and health” of preg women. Fails rational connection test.
Beetz, Estey: Violates sec of person; hosp requirement unnecessary; committee too restrictive. “Health” Dn not a problem. S1 Obj: “protection of fetus.” Fails rational connection test.
Wilson: Violates sec of person, and defects substantive. Also, violates “liberty.” No fundamental justice. S.1 Obj: protect fetus. Can’t limit fr of conscience during first trimester.
McIntyre: defer to Parliament (LeDain agrees).
Issue: Does s. 251 violate the rights of the fetus? B. wanted declaration that “everyone” in s. 7 and “every indiv” in s.15 includes the fetus.
Unanimous decision written by Sopinka:
Borowski’s case is moot because s.251 already ruled unconstitutional in Morgentaler. Developed a test for mootness:
is there a live controversy? If not, should court hear case anyway?
Traditional role of jud.
Issue of standing: Borowski no longer had it
Lived together 5 months; separated partly because of Tremblay’s violence
Daigle 18 weeks pregnant; wanted an abortion
-went to Que Sup Ct to request injunction to stop abortion.
Argued fetus is “human being” under Que Ch of HR & Frs, and under Que Civil Code
Judge granted injunction. Conflict bet fetal rts & D’s rights under s. 7 of Charter; fetal rts take precedence
Daigle appealed to Que Ct of Ap & lost.
At 21 weeks pregnant, applied for lv to ap to SCC. SCC hd quickly on Aug 1; granted lv and scheduled hearing for Aug 8
4 intervenors on each side
just after lunch break, D’s lawyer announced D had just had an abortion. Even though moot, wanted ct to continue
Court announced decision “from the bench” after hearing: Daigle won. Reasons came later
Decision “of the court.” All 9 judges participated
even though Que civil code provides for the appointment of a “curator” for a fetus, the order can’t take effect unless the fetus is born alive.
A fetus has to be born alive before it can have rights either under the Que Ch of HR, or Canadian Charter
Admittedly, there is room for interpretation, but on a matter so crucial, the Quebec legislature would have been clear if it intended the Que Ch of HR & Frs to apply to fetuses.
Quebec’s AG intervened, but only to argue for the right of provinces to legislate on certain matters related to abortion.
Tremblay lost because the fetus is not clearly covered by the Que Ch of HRs and Frs, and therefore there’s no legal cause for action.