IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN
JUDICIAL CENTRE OF REGINA BETWEEN:
JOSEPH BOROWSKI
PLAINTIFF
-and-
– THE ATTORNEY GENERAL OF CANADA and
– THE MINISTER OF FINANCE OF CANADA
DEFENDANTS
M.C. Shumiatcher, Q.C.
And R.B. Hunter for the Plaintiff
E.R. Sojonky, Q.C.
And M.R. Kindrachuk for the Defendants
JUDGEMENT MATHESON, J.
The Plaintiff, as a citizen of Canada, and taxpayer, has alleged that the amendments of the Criminal Code effected by s.18 of the Criminal Law Amendment Act, S.C. 1968-69, Ch. 38, whereby abortions may be authorized by therapeutic abortion committees, are void because they deprive an unborn child of rights guaranteed by the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms (the “Charter”).
Abortion Amendments
A common law abortion was an offence – a misdemeanor – only after ‘quickening’, which was the stage of pregnancy occurring approximately 14 weeks after conception when the woman first perceived movement of the foetus. Lord Ellenborough’s Act 1803, 43 Geo. 3, c. 58 declared abortion of a ‘quick’ foetus to be a capital crime, but prescribed lesser penalties for the felony of abortion before ‘quickening’. The distinction disappeared with the abolition of most capital crimes in 1837 and did not reappear in the Offences Against the Person Act 1861, 24 & 25 Viet., c. 85, which was the core of the anti-abortion laws in England until 1967.
The Infant Life (Preservation Act 1929, 19 & 20 Geo. 5, c. 34, prohibited the destruction of a child capable of being born alive, but accepted the destruction of such a child in good faith for the purpose only of preserving the life of the mother.
In The King v. Bourne (1939) 1 K.B. 687 an obstetrician had been charged with unlawfully using an instrument with intent to procure a miscarriage, contrary to the Offences Against the Person Act, 1861. Macnaghten, J., in instructing the jury, stated that the exception contained in the Infant Life (Preservation) Act, 1929 was applicable. In addition, he instructed the jury that if the destruction of the unborn child was done in good faith, then the words “preserving the life of the mother” must be construed in a reasonable manner – they are not limited to a situation necessitating the saving of the mother from a violent death but extend to a situation where the continuance of the pregnancy would result in the mother becoming a physical or mental wreck. On the basis of these instructions, the jury acquitted the accused.
Section 1(1) pf the Abortion Act 1967, 15 & 16 Eliz. 2, c. 87, permits the termination of a pregnancy by a registered medical practitioner if two medical practitioners concur in his conclusion that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated, or that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
Until 1969 the law in Canada relating to abortion had changed little since 1892 and generally provided that it was an indictable offence, for which one could be sentenced to imprisonment for life, to procure the miscarriage of any woman, and that it was an indictable offence, also with a maximum penalty of life imprisonment, to cause the death of any child, which had not become a human being, in such a manner that the perpetrator would have been guilty of murder if the child had been born. The distinction between a ‘child’ and a human being was substantially the same as presently prescribed in s. 206(1) of the Criminal Code:
“206, (1) A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother whether or not
(a) it has breathed,
(b) it has an independent circulation, or
(c) the navel string is severed,”
By the 1969 amendments to the Criminal Code the foregoing offence of causing the death of a child not yet born was altered and became s. 206(2):
“206, (2) A person commits homicide when he cause injury to a child before or during its birth as a result of which the child dies after becoming a human being.”
Section 251 of the Criminal Code sets out the offence of procuring a miscarriage, as well as making it an offence for a pregnant female person to procure her own miscarriage. The amendments enacted in 1969 involved the enactment of an exception to the subsections creating the offences, and the complete abortion section is as follows:
“251, (1) Every one who, with intent to procure the miscarriage of a female person, whether or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and is liable to imprisonment for life.
(2) Every female person who, being pregnant, with intent to procure her own miscarriage, uses any means or permits any means to be used for the purpose of carrying out her intention is guilty of an indictable offence and is liable to imprisonment for two years.
(3) In this section, ‘means’ includes
(a) the administration of a drug or other noxious thing.
(b) The use of an instrument, and
(c) Manipulation of any kind.
(4) Subsections (1) and (2) do not apply to
(a) a qualified medical practitioner, other than a member of a therapeutic abortion committee for any hospital, who in good faith uses in an accredited or approved hospital any means for the purpose of carrying out his intention to procure the miscarriage of a female person, or
(b) a female person who, being pregnant, permits a qualified medical practitioner to use in an accredited or approved hospital any means described in paragraph (a) for the purpose of carrying out her intention to procure her own miscarriage, if, before the use of those means, the therapeutic abortion committee for that accredited or approved hospital, by a majority of the member s of the committee and at a meeting of the committee at which the case of such female person has been reviewed.
(c) has by certificate in writing stated that in its opinion the continuation of the pregnancy of such female person would or would be likely to endanger her life or health, and
(d) has caused a copy of such certificate to be given to the qualified medical practitioner.
(5) The Minister of Health of a province may by order
(a) require a therapeutic abortion committee for any hospital in that province, or any member thereof, to furnish to him a copy of any certificate described in paragraph (4)(c) issued by that committee, together with such other information relating to the circumstances surrounding the issue of that certificate as he may require, or
(b) require a medical practitioner who, in that province, has procured the miscarriage of any female person named in a certificate described in paragraph 4(c), to furnish to him a copy of that certificate, together with such information relating to the procuring of the miscarriage as he may require.
(6) For the purposes of subsection (4) and (5) and this subsection
‘Accredited hospital’ means a hospital accredited by the Canadian Council on Hospital Accreditation to which diagnostic services and medical, surgical and obstetrical treatment are provided.
‘approved hospital’ means a hospital in a province approved for the purposes of this section by the Minister of Health of that province:
‘Minister of Health’ means
(a) in the Province of Ontario, Quebec, New Brunswick, Manitoba, Newfoundland and Prince Edward Island, the Minister of Health, (a.1) in the Province of Alberta, the Minister of Hospitals and Medical Care,
(b) in the Province of British Columbia, the Minister of Health Services and Hospitals Insurance,
(c) in the Provinces of Nova Scotia and Saskatchewan, the Minister of Public Health and Welfare;
‘qualified medical practitioner’ means a person entitled in engage in the practice of medicine under the laws of the province in which the hospital referred to in subsection (4) is situated:
‘therapeutic abortion committee; for any hospital means a committee, comprised of not less than three members each of whom is a qualified medical practitioner, appointed by the board of that hospital for the purpose of considering and determining questions relating to terminations of pregnancy within that hospital.
(7) Nothing in subsection (4) shall be construed as making unnecessary the obtaining of any authorization or consent that is or may be required, otherwise than under this Act, before any means are used for the purpose of carrying out an intention to procure the miscarriage of a female person.”
The abortion amendments have not had the effect of placating any of the individuals, or groups, who have an abiding interest in the matter of abortion and whose views range from the one extreme advocated by the Plaintiff, to the effect that all abortions are murder, to the opposite extreme where abortion on demand is advocated. The remarks of Blackmun, J. of the United States Supreme Court, in Roe v. Wade 1973) 410 U.S. 113, at page 116, are equally applicable to the Canadian community:
“We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s religious training, one’s attitudes towards life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.”
