What’s the Borowski case all about? Why are the pro-abortionists screaming mad about it, and why are they pulling out all the stops to try to get input into the case? Why have pro-life supporters poured over $300,000 into this case? The reason is because the Borowski case is the first legal challenge of the abortion law under the new Charter of Rights. The outcome of this case will determine the validity of the present abortion law under the Charter.
In the first place, it is amazing that Mr. Borowski was even able to bring this action into Court. No one, and especially the pro-abortionists, ever thought that the Courts would agree to an individual being permitted to challenge the constitutionality of the abortion law in the Courts.
Mr. Borowski commenced his case back in 1978, basing his arguments on the Diefenbaker Bill of Rights only, as the new Charter of Rights was not in existence at that time. From the start, the Crown in its defence of the abortion law led Mr. Borowski on a merry chase. First of all, it attempted to have the case dismissed on the grounds that Mr. Borowski’s action was brought into a wrong court, arguing that the Federal Court of Canada had jurisdiction and not the Saskatchewan Provincial Court of Queen’s Bench. Mr. Borowski fought this argument right to the Supreme Court of Canada, which agreed that his case could be heard in the Provincial Court of Queen’s Bench – round #1 for Mr. Borowski.
Only an individual
The Crown next argued that Mr. Borowski as an individual person did not have any “status” or “standing” in the Court and could not challenge the abortion law. This issue, too, was fought all the way up to the Supreme Court of Canada and Mr. Borowski also won that argument— round #2.
In handing down his decision in that case, Mr. Justice Roland Martland, speaking for the majority of the Court, stated: “… the legislation proposed to be attacked has a direct impact upon the unborn human fetus whose existence may be terminated by legalized abortions. They obviously cannot be parties to proceedings in court, and yet the issue as to the scope of a Canadian Bill of Rights in the protection of the human right to life is a matter of considerable importance. There is no reasonable way in which that issue can be brought into court unless proceedings are launched by some interested citizen….the respondent should be recognized as having legal standing to continue with his action…He is a concerned citizen and a taxpayer.”
Right to Life
“He has sought unsuccessfully to have the issue determined by other means…”
Round #3 is to begin on May 9 when Mr. Borowski, acting through his very astute and capable lawyer, Dr. Morris Shumiatcher of Regina, will argue that the abortion law is wrong and invalid in that it permits killing of unborn human persons, which is contrary to the “right of life” provisions of the Bill of Rights, and Section 7 of the Charter of Rights. (Mr. Borowski will now argue both the Diefenbaker Bill of Rights and the new Charter of Rights).
The Crown will then defend the abortion law stating that historically, laws on abortion have always been a part of the Canadian Criminal Code, and that the federal government does in fact have jurisdiction to legislate on abortion as it sees fit. Dr. Shumiatcher, however, will be arguing that in view of our tremendous knowledge of the unborn child — never before known by man — it is in fact a human being just like all others, and must, therefore have the full protection of the law, like all others. Dr. Shumiatcher will introduce evidence on the humanity of the unborn child.
The pro-abortionists, namely the Canadian Abortion Rights Action League (CARAL) and the Canadian Civil Liberties Association, applied to the Court for permission to intervene (participate) in the case on January 25,1983, in order to insure strong pro-abortion evidence will be introduced into arguments. They alleged that Mr. Borowski had only an “indirect” involvement in the abortion issue and that they (the pro-abortion organizations) would like to intervene on behalf of “the women of Canada”, who had a direct interest in the case. CARAL, incidentally, has retained as its legal counsel Dr. Morris Manning, Q.C, a well-known lawyer and chairman of the Criminal Law Section of the Canadian Bar Association.
Campaign Life then, on short notice, also intervened on behalf of the women of Canada as well as others, alleging that women were being misinformed and misled by medical professionals and were not being told the actual nature and facts of abortion. Mr. Justice Matheson, of the Saskatchewan Queen’s Bench, upon hearing arguments from all applicants, stated that in view of the multiplicity of applications, he felt that the trial would turn into a Royal Commission and therefore, he refused all applications to intervene. He did state, however, in his “Reasons for Judgement” that it was really for the trial judge to make a final decision as to whether he wanted all these interventions in the case. Accordingly, CARAL and Civil Liberties Association are applying again on May 9, at the start of the trial, to the trial judge, for permission to intervene. If they are successful, the pro-abortionists will then be able to present arguments to the Court to strengthen the Crown’s defence of the present abortion law.
What will be the outcome of the Borowski trial? The Court has three choices.
- It can declare that the Charter of Rights does protect unborn human beings and that the present abortion law (S.251 of the Criminal Code) is contrary to the Bill of Rights and the Charter of Rights and, therefore, unconstitutional and inoperable.
- The Court can decide that the abortion law is inoperable and unconstitutional because it infringes on a woman’s right to her “security of person” (referred to in the Charter) and that a woman has a “right” to an abortion.
- The Court could decide that the abortion law is valid because although it does not protect the unborn children, it does not at the same time, give women the “right” to abortion, i.e., that it is not an infringement of her “security of person” and that Parliament can pass any laws on abortion as it sees fit.
If the Court should decide either no.1 or 2 above, then the abortion law would be swept away as being unconstitutional, and the only way the situation could be changed would be by way of the long, arduous, and virtually impossible path of constitutional amendment. On the other hand, if the Court maintains that the present abortion law is constitutional, i.e. valid, then Parliament could continue to pass laws on the issue one way or the other.
However, and it’s a BIG however, the Borowski case is only the first challenge to the abortion law. Another challenge has already been commenced by CARAL and yet another challenge is expected in 1985-1986 when the “dynamite” section of the Charter –namely S.15 – comes into effect. That section could not be argued in this case, since it is not now in effect (it comes into effect in April, 1985). This section is pivotal to the abortion situation and a legal challenge to the abortion law using S.15 will be a very major Constitutional challenge.
S.15 of the Charter provides as follows:
15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
That is, the pro-abortionists, by using S.15, will be able to argue that every woman has the right to equal “protection” and “benefit” of the law including the abortion law, and that every woman has a fundamental and constitutional right “both before and under the (abortion) law” to have an abortion. That should be quite a case!
In the meantime, however, we can all hope and pray the Court will make a definitive decision in the Borowski case and choose the alternative of no.1. If it does, then there could be no other challenges to the abortion law under the Charter of Rights and the unborn children will be forever protected.
Once every forty or fifty years, the Courts do make a revolutionary decision that completely changes legal history. Let us pray that such a revolutionary change will be made in the Borowski case.