Abortion (Canada)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-24
CLNP Page ID:	2440
Page Categories:	[Constitutional Law]
Citation:	Abortion (Canada), CLNP 2440, <https://rvt.link/e3>, retrieved on 2024-11-24
Editor:	Sharvey
Last Updated:	2024/11/12

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Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), 1997 CanLII 336 (SCC), [1997] 3 SCR 925

The judgment of Lamer C.J. and La Forest, L’Heureux-Dubé, Gonthier, Cory, McLachlin and Iacobucci was delivered by

1 McLachlin J. -- In August 1996, a judge of the Manitoba Court of Queen’s Bench ordered that the respondent, five months pregnant with her fourth child, be placed in the custody of the Director of Child and Family Services and detained at the Health Sciences Centre until the birth of her child, there to follow a course of treatment prescribed by the Director. The purpose of the order was to protect the respondent’s unborn child. The respondent was addicted to glue sniffing which may damage the nervous system of the developing fetus.

2 The order was stayed two days later and ultimately set aside on appeal. The respondent voluntarily remained at the Health Sciences Centre until discharged August 14. She stopped sniffing glue and in December gave birth to an apparently normal child, which she is now raising.

3 While the problem that gave rise to these proceedings has been resolved, the legal issues it raised have not. Hence this appeal. Winnipeg Child and Family Services (the “agency”) asks this Court to overturn the order of the Manitoba Court of Appeal striking down the original order for detention. The respondent argues that the courts have no power to order a mother into custody against her will for the purpose of protecting her unborn child, and that such a radical departure from the existing law is best made, if it is to be made at all, by the legislature.

4 I would dismiss the appeal on the ground that an order detaining a pregnant woman for the purpose of protecting her fetus would require changes to the law which cannot properly be made by the courts and should be left to the legislature.

...

15 The position is clear. Neither the common law nor the civil law of Quebec recognizes the unborn child as a legal person possessing rights. This principle applies generally, whether the case falls under the rubric of family law, succession law or tort. Any right or interest the fetus may have remains inchoate and incomplete until the birth of the child.

16 It follows that under the law as it presently stands, the fetus on whose behalf the agency purported to act in seeking the order for the respondent’s detention was not a legal person and possessed no legal rights. If it was not a legal person and possessed no legal rights at the time of the application, then there was no legal person in whose interests the agency could act or in whose interests a court order could be made.

Tremblay v. Daigle [1989] 2 SCR 530

THE COURT -- The issue in this appeal is the validity of an interlocutory injunction prohibiting Chantal Daigle from having an abortion. The injunction was granted at the request of Ms. Daigle's former boyfriend, Jean‑Guy Tremblay. Because of the urgency and importance of the case, Ms. Daigle being some 21 weeks pregnant at the time, the Court agreed to hear the application for leave to appeal, and then heard the appeal itself, on short notice during the Court's summer recess. According to the medical evidence, generally no hospital centre in the province of Quebec would permit a voluntary abortion after 20 weeks of pregnancy; patients would be required to go to the United States if they wished to terminate a pregnancy after 20 weeks, each week adding to the surgical risk. A decision in the appeal was delivered from the bench on the day of the hearing, August 8, 1989. The Court was unanimous in the view that the appeal should be allowed. It was also stated that the reasons for the decision would be rendered at a later date. The following are those reasons.

...

In Canada, the Paton decision has been followed in two Ontario cases. In Dehler v. Ottawa Civic Hospital (1979), 101 D.L.R. (3d) 686 (Ont. H.C.), aff'd (1980), 117 D.L.R. (3d) 512 (Ont. C.A.), a plaintiff sought an injunction on behalf of unborn persons to prevent a hospital from performing abortions on the ground that, inter alia, a foetus has a right to life. The Ontario High Court concluded at p. 699 that "the law has selected birth as the point at which the foetus becomes a person with full and independent rights". The Dehler decision was affirmed in a case with similar facts, Medhurst v. Medhurst (1984), 9 D.L.R. (4th) 252, where the Ontario High Court specifically stated that the law did not consider a foetus as a person. A similar conclusion was also reached in the Manitoba case of Diamond v. Hirsch, Man. Q.B., July 6, 1989 (Hirschfield J.), unreported.

The treatment of a foetus in tort law, property law and family law reveals a similar situation as found under the Civil Code, namely, that the foetus has no rights in private law. In the field of tort, it is in fact the Quebec case of Montreal Tramways, supra, which is most often relied upon for authority in other jurisdictions in Canada (see, e.g.: Duval v. Seguin, [1972] 2 O.R. 686 (H.C.); Steeves v. Fitzsimmons (1975), 66 D.L.R. (3d) 203 (Ont. H.C.)) As stated earlier, the Montreal Tramways decision does not recognize foetuses as legal persons. In the field of property law, Anglo‑Canadian law, like Quebec law, has allowed a foetus to be a beneficiary of a will or a donation but it has only protected a foetus' interests where the foetus has been born alive and viable (see: Earl of Bedford's Case (1587), 7 Co. Rep. 7b, 77 E.R. 421; Thellusson v. Woodford (1805), 11 Ves. Jun. 112, 32 E.R. 1030; and Elliot v. Lord Joicey, [1935] A.C. 209). In family law, a foetus appears to receive some protection, but, as elsewhere in the law, the rights take effect and are perfected by birth (see: K. v. K., [1933] 3 W.W.R. 351 (Man. K.B.); and Solowan v. Solowan (1953), 8 W.W.R. 288 (Alta. S.C.))

The issue of foetal protection under provincial child welfare legislation has been discussed in three recent court decisions: Re Baby R (1988), 15 R.F.L. (3d) 225 (B.C.S.C.), Re Children's Aid Society of City of Belleville and T (1987), 59 O.R. (2d) 204 (Ont. Prov. Ct. (Fam. Div.)), and Re Children's Aid Society for the District of Kenora and J.L. (1981), 134 D.L.R. (3d) 249 (Ont. Prov. Ct. (Fam. Div.)) In the Belleville and Kenora cases the courts found that each of the foetuses in question was a "child" in need of protection under the Child and Family Services Act, 1984 and the Child Welfare Act, respectively. However, this position is to be contrasted with the approach taken by the British Columbia Supreme Court in Baby R, where an opposite conclusion was reached in respect of the term "child" in the British Columbia Family and Child Service Act. The position in England supports the conclusion of Macdonell J. in Baby R. In Re F (in utero), [1988] 2 W.L.R. 1288, a prominent case before the English Court of Appeal, it was held that a foetus did not have, at any stage of its development, a separate existence from its mother, and therefore the court could not extend its wardship jurisdiction to a foetus.

To conclude: in light of this treatment of foetal rights in civil law and, in addition, the consistency to be found in the common law jurisdictions, it would be wrong to interpret the vague provisions of the Quebec Charter as conferring legal personhood upon the foetus.

This concludes the discussion of the appellant's "substantive rights" argument in so far as it is based upon Quebec legislation. It should be noted that because of the way we have decided the question of "foetal rights", it was unnecessary to consider the second aspect of the "substantive rights" argument; i.e., the claim that even if foetal rights do exist they could not justify compelling a woman to carry a foetus to term.