For a man that has lost three straight rounds in his fight with the British Columbia government, Nelson, B.C. carpenter Jim Demers, puts up a brave face when he says he’s not yet defeated.

On Jan. 17, the B.C. Court of Appeal turned away Demers’ effort to abort the provinces anti-protest “bubble-zone” law which has resulted in dozens of people being arrested for protesting too close to abortion facilities. The 45-year-old father of five is promising to take his David and Goliath struggle forward to Canada’s Supreme Court, and if necessary, to international law tribunals.

Demers was arrested in December 1996 for standing with his back against a Vancouver abortuary holding a large sign reading “Every human being has the inherent right to life.”

At trial, Demers claimed that the Access to Abortion Services Act was unconstitutional because it violated his freedom of speech and, more importantly, the right to life of unborn children whose interests he claimed to be defending.

In two lower hearings, judges told the long-time activist that their hands were tied by a previous B.C. Supreme Court ruling that held that while protester’s freedom of speech Charter rights were violated by the legislation, suppression was justified under Section One of the Charter of Rights and Freedoms. Section One allows a violation of a Charter right if a judge decides that in the balance, a greater good is achieved.

The defendant was, however, successful in one regard. Provincial Court Judge Jack McGivern allowed the second constitutional issue to be framed as: “(Does) the word ‘everyone’‚ as that term is used in Section 7 (guaranteeing everyone’s right to life) of the Charter, include an unborn child where a woman has decided to have her pregnancy terminated.”

Demers and his lawyers argued that the scientific evidence proved that children before birth are human beings. As such, like any other human, they should be granted the same respect accorded others. Speaking for Demers, American Professor of International Law at the Jones School of Law, Jeffrey Tuomala pointed to six international human rights treaties to demonstrate that the separation of legal personhood from living human beings violates international law. Addressing the Charter’s preamble which states that “Canada is a nation founded on principles which recognize the supremacy of God, and the rule of law.” Tuomala said that at the very least this means that the fundamental rights of Canadians are not “gifts from government” but rather granted by God. As such, he argued, every human being in Canada is entitled to respect for their inherent rights.

At the Court of Appeal hearing Dec. 10-11, Crown lawyer Roger Cutler, responded that even though Canada’s legal tradition was rooted in such ideas, modern reality dictated otherwise. “Today,” he told the three judge panel, “we have evolved away from agreements like Magna Carta, contracts between Kings and Lords…” He went on to say that the new basis of authority was not historical tradition, but rather “the will of the people as expressed by way of democracy.” Therefore, if the elected members of parliament want to include the unborn in Section 7 protections, that would be their prerogative.

Both lower courts, and the three Court of Appeal Justices last week, unanimously agreed. Quoting from a previous Supreme Court abortion case, Justice Richard Low wrote: “The task of properly classifying a foetus in law and in science are different pursuits. Ascribing personhood to a foetus in law is a fundamentally normative task. It results in the recognition of rights and duties – a matter which falls outside the concerns of scientific classification. In short, this Court’s task is a legal one. Decisions based upon broad social, political, moral and economic choices are more appropriately left to the legislature.”

So even though the Supreme Court admits they have not considered the unborn’s rights under the Charter, their other rulings in such cases have left little room to conclude they would accept the idea.

On that basis, the two lower courts said any reversal of the trend towards recognition of fetal rights, would have to be signaled directly from the upper court. Last week, the Appeal Court, stated that they felt any change in the status of the unborn must come from parliament, rather than the courts.

Demers says he finds this proposition “outrageous.”

“Historically,” he said after reading the judgement, “we have seen some of the worst crimes in history committed under this type of thinking. Subjecting the rights of whole groups of human beings to the normative‚ process of allowing government to decide who is worthy of life and who is not, is the very process that allowed black slavery in America and death camps like Auschwitz in Europe. Whether we like it or not, protection of fundamental human rights are the domain of the Charter, and that means the courts have a duty to do what is right.”

Given the position of the courts, why would Demers appeal what appears would result in another rejection of his right to life beliefs.

He says that historically, it has often taken “bad judicial rulings” to prompt change. “As the full depravity of human cloning, stem cell harvesting, and commerce in aborted baby parts becomes more apparent, I’m hoping our courts and people generally – will see that the cost of reducing human beings to property status is simply not worth the price.”