About a year ago, in Joe Borowski’s behalf, I issued a writ out of the Queens bench of Saskatchewan, naming as defendants the Minister of Justice of Canada and the minister of finance, and I sought a declaration that those provisions in the criminal code permitting abortions with which we are all familiar are inapplicable and may not stand in the light of the statements of the Canadian bill of rights.

The purpose of the case is simply in our jurisprudence as significant as the Dred Scott decision of the supreme court of the United States more then a hundred years ago. Remember that for a number of generations in America and throughout the world black people were not regarded as human beings. They were depersonalized. That is the only basis on which the concept of slavery could possibly be made acceptable to highly intellectual and highly religious men and women in America and throughout the world.

How could one possibly regard an individual as a slave and a human being? How could one regard him as a chattel, as a thing to be dealt with one as one wishes, to be flogged, to be imprisoned…yes, and to be killed with impunity? Only if one depersonalized the black man and said “really he’s not a human being, he’s a beast, a thing.”

I have no doubt that in due course the Borowski case will reach the supreme court of Canada and I look to a decision there which will be quite different to that which was handed down by the supreme court of the United States more then a hundred years ago in the famous Dred Scott decision, which the supreme court of that country had to determine as to whether a black man was in fact a human being, or whether indeed he could be treated as a thing and a chattel and not a human being. The supreme court of the United States in that decision that the black man was not to be regarded as a member of the human race, not to be regarded as a citizen of the United States and could be treated as a chattel.

Lets take s look at the law

Well, following that decision of David Scott there was a civil war, which convulsed the nation and divided it for generations. Finally, the people did speak and human rights were restored to the black man until he stands shoulder to shoulder with his fellow citizens in the family of nations.

What the black man won as a result of the civil war in the United States I hope that the unborn in this country may win in the supreme court of Canada, through the Borowski case, if not before.

Let’s take a look at the law for a few moments. Abortion, of course, in Canada is still unlawful. It’s criminal and lets not forget that section 251, paragraphs 1 and 2 provide that everyone whose intent is to produced miscarriage of a female person or uses any means for the purpose of carrying out that intention is guilty of an indictable offence and, mark this, is liable for life imprisonment.

Now parliament doesn’t treat lightly the idea of abortion. Parliament for many decades regarded it as abhorrent, not only immoral but illegal and that is still the law in Canada. Let’s never forget it.

Yet there are exceptions which we imported in 1969.what those provisions say, is that not withstanding it’s no crime if an abortion is committed in good faith by a qualified medical practitioner, in an accredited hospital. One further condition. The female who permits this operation to be performed on her must provide a certificate given by a therapeutic abortion committee, consisting of three medical doctors, stating that the continued pregnancy would or would likely endanger her life or health.

Since this decision is to be made by a therapeutic abortion committee, we’ll call it “TAC” for the words “take all children”. And there it is. You have existing the power to issue a miraculous certificate which converts what is a heinous crime into an acceptable operation. It’s still a crime then to kill the unborn child in this country by abortion. But, like a hunter’s license to take game in the fall, there is a year round open season on unborn children.

All that you need is a license to kill

All that you need is a license to kill, and it’s wondrous simple to get such a license. You don’t buy it at your local hardwood store like you do a license to kill wild duck or moose. You get it at your friendly neighbourhood hospital. A license to kill little people.

What is our case in defence of these little people? It is, principally, that the Canadian Bill of Rights sets out the very simple but significant principle that every individual has the right to life. Now, unlike the United States Constitution, this bill of rights is not part of our constitution. It is simply an act of parliament, like any other act which is designed to restrain parliament itself on this basis. It provides that if parliament passes any statue which contrary to the principals of the bill of rights, then that act can be of now force or effect unless parliament says it does have that force and effect.

So now you see it and now you don’t. The fact is, that in the case of abortion laws, parliament did not say that the Bill of rights shall not operate and prevail therefore it does. It stands head and shoulders above every act, including these abortion provisions which were brought into the law in 1969.

And it is Joe Borowski’s view, and mine, that the legislation that provides for the immunity to doctors and to hospitals, where this magic little license is produced, ignores the existence of the individual most vitally concerned and that is the unborn child. We take the position that the unborn child is an individual and has the right to life under the provisions of the Canadian Bill of Rights and that the hunting license is void.

The unborn is an individual

Now, the question that we must put to the court are several. First, we suggest that the unborn child, no less then the child that’s born, is an individual. Second, that the bill of rights takes the precedence over the criminal code. Third, that there was no declaration removing its effect. Fourth, that those two provisions may not stand side by side and the right to life prevails over the right to have an abortion.

We also argue that the Canadian Bill of Rights guarantees to every individual a right to a fair hearing before he may be deprived of any right and certainly before his life can be take away from him. But we have a situation in which in fact there is no right on the part of the unborn to be heard.

The only way that present legislation can be justified, is, in our view, by arguing that the unborn child is not an individual, is not a human being, and that he is so small and inarticulate and so difficult to see and touch that he has no status in the eyes of the law. Against this must be, I suppose, cited the old legal maxim that the law takes no cognizance of trifles. I don’t believe that the courts of this country in the year 1980, will say that the unborn child is merely a trifle. And I don’t believe that they will say that the cries of the unborn child are not to be heard.

Our case not only concerns the unborn child but all of us. But for the grace of God and perhaps the laws that existed when we were conceived, we too might have been denied life by the abortionist’s cruel curette. You and I have escaped the abortions, but we have yet to face the menaces of the euthanasists, who will confront us with all of the blandishments of the “good death” as they call it, euthanasia.

Now, the principles that I propose to advance in our case will be buttressed with the evidence of an objective character to demonstrate that a human being does exist and does live, long before he alights from the graceful carriage of his mother’s body and moves into and continues to live in her house. Because life, as we know it, is a continuum.

Those who have opposed abortion as being a abomination have been accused I living in a state of dark medievalism. But isn’t it interesting that with every year, indeed with every passing month, there have come new revelations which assert the fact that a fetus is an individual every sense of the concept.

Ultrasound is scientific proof

Scientific advances in ultra sound now show to the most sceptical that the child at 12 weeks is a jumping creature, a real performer on a trampoline inside his mother’s body. Just recently, at Georgetown university, I saw the moving pictures of children 12 weeks from conception moving around, sucking thumbs.  One waved a hand as though knowing that someone was looking at him.  I say “him” because at 12 weeks you can see a very well developed penis.

Finally, I want to suggest that it is not the law alone that can make us free. Declaration of human rights alone can be empty and meaningless things. Even the constitution of the U.S.S.R speaks most glowingly of human rights and individual liberties. But what is written on parliament or paper or even stone means very little unless these concepts be graven also in the hearts of men and applied with their hands and their minds.