Rory Leishman:

On Feb. 16, the Supreme Court of Alabama touched off an international uproar, by holding that the state’s 1872 Wrongful Death of a Minor Act applies no less to frozen embryos than to all other children. Abortion zealots were outraged: They contended that a frozen embryo is not a child and has no right to life.

This dispute came before the courts as a result of a tragic incident in a fertility clinic when an intruder grabbed a tray of frozen embryos, dropped it, and thereby killed the embryos. Consequently, the parents of the deceased embryos sued the clinic for negligence under the terms of the Wrongful Death of a Minor Act, which provides that the parents of a deceased child can seek punitive damages if the death of the child was “caused by the wrongful act, omission or negligence of any person.”

Justice Jay Mitchell of the Supreme Court of Alabama noted in his reasons for judgment: “All parties to these cases, like all members of this Court, agree that an unborn child is a genetically unique human being whose life begins at fertilization and ends at death.” He also noted that The Oxford English Dictionary defines a child as an “unborn or newly born human being.” Therefore, he concluded that the Wrongful Death of a Minor Act applies to all children “regardless of location” inside or outside the womb.

Consider, in contrast, the reasoning of the Supreme Court of Canada in Tremblay v. Daigle, 1989. At issue in this case was the meaning of the provision in Section 1 of the Quebec Charter of Human Rights and Freedoms: “Every human being has a right to life and … also possesses juridical personality.”

Both the trial judge in Daigle and the Quebec Court of Appeal held that the plain words of Section 1 unambiguously affirm that an unborn child has “a natural right to life.” The Supreme Court of Canada disagreed. In its unanimous ruling in Daigle, the Court held that: “The meaning of the term ‘human being’ is a highly controversial issue, to say the least, and it cannot be settled by linguistic fiat.” Both of these assertions are incorrect.

All mainstream dictionaries define a child as a human being. Over this definition, there is no controversy. Likewise, it is scientifically indisputable that the life of every human begins at fertilization.

Alas, such facts mean nothing to the Supreme Court of Canada. In Daigle, the Court alleged: “A purely linguistic argument suffers from the same flaw as a purely scientific argument: it attempts to settle a legal debate by non‑legal means.”

The Court did not, and could not, cite any precedent for this novel legal theory. Sir William Blackstone is generally regarded as the supreme authority on the development of the common law. In his magisterial Commentaries on the Laws of England, he observed that it is a fundamental principle of the common law that the words of a statute “are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use.”

Mitchell, in his ruling for the Alabama Court of Appeal, cited the common dictionary definitions of a child. In Daigle, the Supreme Court of Canada maintained, in effect, that the plain words of the law and the Constitution mean what the Court says they mean.

Both the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms affirm that everyone has a right to life. Yet in Daigle, the Supreme Court of Canada decreed that even after 20 weeks of pregnancy, the healthy mother of a healthy baby has an unfettered right to abort her child despite the objections of the child’s father.

In the Alabama frozen-embryos case, counsel for the defendants argued that if parents can sue a fertility clinic for negligence in the wrongful death of their frozen embryo, the entire IVF industry could be forced to shut down. Justice Mitchell was unmoved. He held: “Policy-focused arguments belong before the Legislature, not this Court.” In his view, judges are required to uphold the law as written rather than change the law through interpretation “based on our own view of what is or is not wise public policy.”

For the past 40 years, the Supreme Court of Canada has exercised no such judicial restraint. Time and again, it has usurped the legislative powers vested in Parliament and the provincial Legislatures, by striking down some laws and changing others to conform with the judges’ views of wise public policy.

How long will Canadians put up with such illegitimate, law-breaking, democracy-stifling, judicial arrogance?