After 10 years in Canada’s courts the landmark Borowski case may never receive a ruling from the Supreme Court of Canada.  Joe Borowski’s odyssey to claim the constitutional right to life of the pre-born child under the Charter of Rights and Freedoms has ended in a quagmire of legal uncertainty and political hypocrisy.

Borowski’s final appeal to the Supreme Court began October 3 with unexpected questions on the part of the seven Justices hearing the case as to their authority to rule on the matter in the absence of an abortion law.  The seven-judge panel includes Chief Justice Brian Dickson and Justices Antonio Lamer, William McIntyre, Bertha Wilson, Gerard La Forest, Claire l”Heureux-Dube and John Sopinka.  The remaining two Supreme Court Justices, Jean Beetz and Gerald LeDain did not take part in the hearing.

Borowski’s court action, which began in the Saskatchewan Court of Queen’s Bench in 1978, alleged that the Criminal Code sections, which permitted abortion under certain circumstances, violated the right to life of the pre-born child as guaranteed in The Canadian Bill of Rights.  When the Canadian Charter of Rights and Freedoms was proclaimed in 1982, Borowski’s case was amended to plead the pre-born child’s rights under the Charter.

Although the Supreme Court struck down the abortion law in January of this year in the Morgentaler decision, two constitutional questions pertaining to the pre-born child remained unanswered.  First, does the pre-born child have the right to life as guaranteed by Section 7 of the Charter, and second, does the pre-born child have the rights to equal protection and equal benefit of the law without discrimination as prescribed by Section 15 of the Charter.

However, in tackling the Borowski case the Justices admitted their confusion in trying to resolve a constitutional question in the absence of a law with which to relate it.

Expressing an opinion without an abortion law in place could tread on Parliament’s responsibility to make laws and set policy, the Justices warned.  “Abstract legal pronouncements,” Chief Justice Brian Dickson said, could be seen as “blatant legal legislating.”

“…Where do I find my jurisdiction…”, asked Mr. Justice Lamer.  “I can’t relate to a law, I can’t apply a law, I can’t strike down a law, I can’t uphold it, I can only express an opinion as to what maybe the law should say…

My concern is that if this Court can make such a pronouncement, than it is an acknowledgement by this Court that is has the power to tell Parliament that it should enact a law, and that if it doesn’t, Parliament is in violation of the Charter of Rights.”

Borowski’s lawyer, Morris Shumiatcher argued that the Court’s failure to make a decision would lead to the perception that there is no need for an abortion law.  He asked the Court to find its jurisdiction in the Charter of Rights itself as the supreme law of the country, and to determine whether or not the right to “life, liberty and security of the person” and the right to “equal benefit of the law” enunciated in the Charter applied to the pre-born child.

And while Shumiatcher noted that even the Prime Minister looked to the court for “moral guidance” on the issue, the Justices were openly exasperated with the government’s prevarication in the matter.

Prior to the October 1 federal election call, Prime Minister Mulroney was quoted as saying, “We should probably wait until the [Borowski] decision before we undertake a major piece of legislation.”  However, the Prime Minister’s statements notwithstanding, the government’s written arguments as the respondent in the case concluded that the appeal should not be heard without an abortion law in place.

The request stopped short of asking the Court to quash the case.  Government lawyer Edward Sojonky argued somewhat unconvincingly that the appeal should only be “held in abeyance or postponed” pending probable enactment of legislation in “a year or two.”

In other words, you would like us to quash it, but you don’t want to ask for it,” charged Mr. Justice Lamer, noting as well that Sojonky simply followed “instructions” from the Attorney General.

After nearly a full day of argument the Court reserved judgment on whether it has the authority to rule on the case, and proceeded to hear arguments on the appeal itself.

A summary of the evidence given at the original trial in 1978, included ultrasound videotapes of the developing child with commentary by ultrasound pioneer Dr. Ian Donaldson, and testimony from Dr. Jerome Lejeune and the late Sir William Liley.  The evidence establishing the individuality, separateness and uniqueness of the human qualities of the pre-born child was followed by legal arguments leading to the conclusion that the child in its mother’s womb must first have the right to life in order to assume all other rights accorded it in civil and common law.  Shumiatcher compared the recognition of fetal rights to the belated recognition of the legal personhood of women and blacks.

Borowski was supported in the appeal by two interventors: the Interfaith Coalition on the Rights and Well being of Women and Children, an organization representing a cross-section of Canada’s religions and religious denominations including Roman Catholic, Baptist, Pentecostal, Hindu, Muslim and Jewish; and REAL Women of Canada, the pro-family women’s lobby group.  In keeping with Court rules regarding intervenors, both groups presented the Court with additional evidence supporting Borowski’s claim that the pre-born child has the legal right to life under the Charter of Rights.

The Interfaith Coalition based their argument on the recognition of the supremacy of God in the preamble to the Charter.  This principle also recognizes the sanctity of human life and denies that any human life can be traded for the comfort or convenience of another, they stated.

REAL Women counsel Angela Costigan presented the Court with additional legal evidence leading to the conclusion that the pre-born child falls under the protection of the Charter.  She also pointed out the dangers of abortion to the physical and mental health of women.

The federal government argued that while the pre-born are “deserving of protection” because of their “potential of becoming fully developed human being” it does not follow that such respect implies that the pre-born child must possess the same legal rights as those who are born.  They submitted that while the provisions of Charter of Rights do not extend to the pre-born child, Parliament has the authority to enact legislation to protect the pre-born child, balancing this protection against the constitutional rights of women.

Supporting the government claims as intervenors, the Legal Education and Action Fund (LEAF), a government-funded feminist legal rights group, argued that if the pre-born child were found to have legal rights under the Charter, women could be prosecuted for acts harmful to the child such as smoking or drinking alcohol.  Women have sole responsibility for the fetus, they claimed, and there is no legal basis that a voice other than that of the pregnant women is needed for the pre-born child.

Although the Supreme Court may never rule on the matter, Joe Borowski has claimed victory.  After ten yeas and an estimated $760,000, the former Manitoba highways minister says that his objective has been met.  “The incontrovertible evidence of the humanity of the pre-born child has been placed before the Supreme Court of Canada,” said Borowski.