Christmas at Langley Memorial 1983
Most of us in the pro-life movement at this time of the year tend to feel jaded and battle-scarred, and yes, even depressed occasionally. We’ve fought our annual hospital meeting battles, with mixed results; the current year’s national abortion statistics are again obviously going to be depressingly high; Morgentaler and his abortuaries are still with us. So, when something positive happens in the pro-life field, it assumes even more importance and significance than might otherwise be the case.
One such uplifting event has been occurring in a little-known area of British Columbia, at a medium-sized (approx. 150 beds) acute-care hospital in the municipality of Langley, a rural community 35 miles east of Vancouver. Here, over the past four years, a dramatic 95% reduction in abortions has been achieved, and achieved with a Therapeutic Abortion Committee still in place and functioning at the hospital. The following statistics show most graphically the magnitude of this achievement:
Therapeutic Abortions at Langley Memorial Hospital
1983 (to Nov. 1) 4
This achievement is all the more remarkable when it is realized that Langley has one of the fastest population-growth rates in B.C., with an annual rate of between 5% and 6%. In addition, the success in this hospital must be viewed against the medico-political situation currently prevalent in British Columbia, and particularly in the Vancouver area.
British Columbia is unfortunately distinguished by having the highest per-capita abortion rate in Canada, and Vancouver is the abortion capital of the province. The pro and anti-life forces have been politically active for years, and the situation at times has become so vitriolic that the Provincial Government has been forced to step in, abolishing the hospital board in one instance (Vancouver General), and suspending a hospital society’s annual general meeting in another (Surrey Memorial Hospital – only ten miles from Langley).
In both cases, a public administrator, appointed by the Government, was appointed to keep things under control.
In such a volatile atmosphere, how has Langley Memorial Hospital managed to virtually abolish the wanton destruction of human life? Next month, an in-depth article will study and explain the various strategies used, the basic principles adopted, and the planned stages and their consequences, with the intention of providing other hospitals and pro-life groups with some ideas, which can be adapted for use in their own situations.
In the broad term, there are a few generalizations and principles that we on the Langley Memorial Hospital Board feel have been fundamental to our success.
Firstly, we obviously had to elect a predominately pro-life board, who then had to establish their credibility, not just on the pro-life issue, but also in all aspects of patient care and hospital administration. At the same time, great efforts were made to win the confidence and respect of the medical staff, the hospital administration and the nursing professionals. This could only be done through consultation and cooperation, not confrontation.
Secondly, the Hospital Trustees set a firm, unambiguous policy with respect to the performance of abortions within the hospital. Clear guidelines for the constitution and performance of the Therapeutic Abortion Committee were set up. This was achieved in consultation with, (and with the approval of) the medical staff, and with the clear understanding that the Board was following the original intent of the Criminal Code of Canada. Once the Therapeutic Abortion Committee was in place and functioning, the Hospital Board insisted on its holding regular, minuted meetings, which were monitored in a “hands-off” manner by the Board.
Thirdly, and in parallel with the above, the Hospital Board recognized that it was not enough to prevent misapplication of the abortion laws – we also had a fundamental responsibility to the community to provide alternative solutions. Consequently, over a two-year period, a multi-disciplinary Education Committee was designed, involving all concerned groups in the community, from health care professionals to church groups, schools and school boards.
Eventually, over 30 community groups became involved. This Community Health Education Committee (more commonly known as “CHEC”) has sponsored educational seminars for parents and children, coupled with editorials and articles in the local newspapers, on all types of adolescent and childhood health problems, including sex education, venereal diseases, drugs and drinking, teenage suicide, etc. An average of 200 parents and children attended each of these seminars. Currently this Committee is working with the local School Board and parents in trying to formulate a Family Life educational curriculum acceptable to all members of the community.
All these points will be considered in more detail next month. Suffice it to say, in synopsis, that our goals were long-term, to be achieved step-by-step, with each succeeding increment to be built on the solid foundation of the one before. Changes in public attitude can only be achieved gradually, by persuasion and example. The underlying principle of our success has always been, and continues to be, “Consultation, not Confrontation.”
In the September Interim we reported that Provincial Court Judge Carl H. Rolf ended the enquiry into the October 1972 death of newborn Candace Taschuk at Edmonton’s University hospital. He ruled that the cause of death was “indeterminable”.
However, in the first week of November, Attorney-General of Alberta, Neil Crawford announced that Dr. Nachum Gal, who is alleged to have ordered the fatal dose of morphine for the baby, had been charged with first degree murder, and that the Federal government had been asked to begin extradition proceedings. Israel, however, does not extradite its citizens. Consequently, if Dr. Gal is tried at all, it will be by his fellow-countrymen.
In a routine review of infant deaths, University hospital discovered the overdose that had been prescribed by Dr. Gal, and began a police investigation in February of 1983. Judge Rolf was unable to find that the death was caused by the overdose.
The Attorney General’s department, after reviewing the transcripts and the police investigation, decided to lay nine charges from murder to attempting to wound.
There is an extradition treaty between Canada and Israel but it only allows the two countries to retrieve their citizens who have fled prosecution from crimes committed in their own country. A trial in Israel would be extremely costly. No doctor in Israel has ever been charged with active euthanasia (as opposed to passive euthanasia, which refers to the removal of a life-support system, intravenous feeding, artificial blood circulation, etc.).
Dr. Gal is now working at the Joseph Thal Hospital in the desert town of Eilat where he has lived since leaving Alberta.
Some Yukon Correspondence
Mrs. Daphne White, President of Yukon Right to Life, wrote to the Commissioner of Yukon Territory on Oct. 13, 1983 requesting a ‘Respect for Human Life Week’. Her letter and the reply she received 5 days later are below.
Commissioner D. Bell
Government of Yukon
Dear Commissioner Bell:
On behalf of Yukon Right to Life, I would like to request that October 23-29, 1983, be proclaimed Respect Human Life Week and submit the following for your consideration:
Whereas, human life is varied according to race, creed, potential, age. education and economics, and
Whereas, human life is unique because of its soul and intellect, and
Whereas, human life is precious because this soul and intellect is used to elevate ourselves motivated by our care for one another and our concern for the future, therefore,
Be it resolved that our government be recognized as supportive of the dignity and potential of all human life,
Be it further resolved that the future and greater good for mankind be considered when questions of bioethics are to be answered, and
Be it finally resolved that this concern for the respect of human life be visible in the proclamation of: Respect Human Life Week October 23-29, 1983 in the Yukon Territory and we urge fellow Yukoners to use this time to clearly demonstrate their respect for human life in their various professions and walks of life.
Mrs. D. White, President
Yukon Right to Life.
Mrs. D. White,
Yukon Right to Life.
Dear Mrs. White:
Thank you for your request to proclaim the week of October 23-29, 1983 as ‘Respect Human Life Week’ in Yukon.
All requests for proclamations are vetted through Cabinet prior to forwarding to the Commissioner. My Cabinet colleagues and I have discussed your request. I regret to inform you that it has not been considered appropriate to proclaim ‘Respect Human Life’ in Yukon.
C. W. Pearson
(The Yukon has the third-highest per-capita abortion rate in Canada after B.C. and Ontario)—ed.
‘The Rule of Law’ or the Rule of NDP law?
On December 8th, Manitoba Attorney General Roland Penner, by withdrawing the charge of conspiracy of performing an illegal abortion against Morgentaler, has in effect set this abortionist free (see pg. 1) in the province of Manitoba.
The following has been the form letter used by Premier Pawley to answer queries about abortion. It was sent along to us by Mr. Joseph Borowski.
Dear Concerned Citizen:
I wish to acknowledge receipt of your letter regarding the abortion issue, particularly the establishment of free-standing abortion clinics.
This is clearly an issue about which many Manitobans have strong views and beliefs. I wish our society offered the kind of social educational and health programs that would mean no abortions are necessary. I am sure that a woman who believes abortion is morally wrong would not have one. Equally, I believe that women who medically require an abortion should have access to safe medical services.
As you may know, therapeutic abortions can now only be carried out in accredited hospitals under the conditions set down by the Criminal Code. This is a federal law and cannot be changed by provincial legislation.
If a free-standing abortion clinic was established in Manitoba, the law would take its normal course. As the Honorable Roland Penne, Attorney General, has stated, it would be legally and constitutionally improper to deal with the matter outside the courts. If complaints were received, the rule of law would apply.
Thank you for informing me of your concerns about this issue.
REGINA DECISION: PART TWO
Last month in the November edition of The Interim we brought you the part of the decision dealing with the Canadian abortion law and (Diefenbaker) Bill of Rights. In this edition we bring you the remaining part of the decision dealing with the abortion law and the new Charter of Rights.
You will note that Judge Matheson states in this part that the unborn child has an existence separate and apart from that of a pregnant woman. This is in sharp contrast to the U.S. Supreme Court decision of Roe vs. Wade, which brought in abortion on demand in that country, and which made no such distinction. In addition, Judge Matheson states that developments in medicine have eroded the adequacy of the legal criterion for determining when life begins, and “…may make it socially desirable that some legal status be extended to fetuses, irrespective of viability…”
Reference was made by the Plaintiff to various judicial decisions, relating to the law of negligence, and the law of property and child welfare, wherein it was concluded that the foetus may have certain rights, such as the right not to be injured negligently (Montreal Tramways Company v. Reveille (1933) S.C.R. 456); the right to participate in a gift of property to a class of children, even where the children living at the time of the testator’s death were specified (Re Sloan Estate (1937) 3 W.W.R. 455); and that a foetus is capable of being abused and therefore in need of protection (Superintendent of Family and Child Service v. M. and O. (1982) 4 W.W.R. 272). Decisions of this nature are of little assistance, however, in attempting to answer the question whether a foetus is, from the time of conception or shortly thereafter, a legal person for all purposes, because all such decisions involved foetuses subsequently born alive, or which it was anticipated, unless left unprotected, would be born alive.
The question of the status of a foetus was squarely faced by the English Court of Queen’s Bench in Paton vs. Trustees of B.P.A.S. (1978) 2 All E.R. 987, where a husband applied for an injunction to prevent his wife from undergoing to abortion without his consent. The wife had obtained, pursuant to the Abortion Act 1967, the necessary certificate from registered medical practitioners stating that they were of the opinion that the continuance of the pregnancy would involve risk of injury to the physical or mental health of the wife. The validity of the Abortion Act 1967 was not challenged, and the principal question to be decided was whether the husband had any right to apply for the injunction. It was concluded that a foetus cannot, in English law, have any right of its own at least until it is born and has a separate existence from its mother. Consequently, the husband’s claim had to depend upon a right to the requested relief. It was concluded that the husband had no right to the requested relief. The Court’s conclusion neither did nor, of course, entails an examination of rights guaranteed by a constituently entrenched charter or bill of rights.
Paton perused his mission before the European Commission of Human Rights Convention (Paton vs. United Kingdom) (1980) 3 H.R.R.R. (408), with one of his assertions being that an that un unborn child is covered by article 2(1) of the European Human Rights Convention that provides that “everyone’s right to life shall be protected by law” After an examination of the provisions of the Convention, and relevant judicial decisions, the Commission concluded that it was not necessary for it to decide whether Article 2(1) covered a foetus with an implied limitation, because it concluded that the authorization by the United Kingdom authorities of the abortion complained of was compatible with Article 2(1). The assuming that Article 2(1) applied at the initial stage of pregnancy, it was concluded that the abortion was covered by an implied limitation – the right to life of the foetus that stage was subject to an abortion necessary to protect the life or health of the pregnant woman.
In Roe v. Wade (supra) the United States Supreme Court examined the biological stages of foetal development rather than attempting a philosophical determination of the question of when human life begins. Blackmun, J. in writing the judgment of the majority, stated, at page 159, that the Court “need not resolve the difficult question of when life begins”. Nevertheless, after agreeing with the submission that the woman has a constitutional right of privacy that is broad enough to encompass her decision whether or not to terminate her pregnancy, it was emphasized that the State has important and legitimate interests that could limit that right, and that the State acquires a compelling interest in the potential human life of the fetus at the moment the fetus becomes ‘viable’ – potentially able to live outside the mother’s womb, albeit with artificial aid. It was declared that after ‘ viability’ the State may prohibit all abortions that are not necessary to protect the life or health of the mother.
Subsections (4), (5) and (6) of s. 251 of the Criminal Code do not purport to make lawful any abortions except those where it has been certified that continuance of the pregnancy of the female “would or would be likely to endanger her life or health”. As constricted with the decision in Roe v. Wade, where it was concluded that the State has no right to interfere and to prohibit abortions prior to the ‘viability’ stage, s. 251 prohibits abortions at any stage of pregnancy except in the prescribed circumstances.
In City of Akron v. Akron Center for Reproductive Health Inc. (1983) 103 S.C. 2481, a majority of the members of the Supreme Court of the United States affirmed the decision in Roe v. Wade. Justices O’Connor, White and Rehnquist dissented, stating that even assuming that there is a fundamental right to terminate pregnancy in some situations, the compelling interest of the State in both maternal health and potential human life is present throughout the pregnancy; and that it did not follow that the State has no interest prior to viability, because potential life is no less potential in the first weeks of pregnancy than at the viability stage. The dissenting opinions would therefore appear to be consistent with the general intention manifested by Parliament in s. 251 of the Criminal Code.
In The Juridical Status of the Fetus: A Proposal for Legal Protection of the Unborn, Patricia A. King, 77 Michigan Law Review 1647, the author questioned the justification for the conclusion of the Supreme Court of the United States that, until a foetus is viable, neither the Court nor the State has a compelling interest that can override the constitutionally protected rights of the mother to obtain an abortion. It was suggested that no justification was offered because that would have revealed the thinness of the Court’s assertion that it was taking no position on when life begins.
King noted that two developments in medicine have eroded the adequacy of the legal criterion for determing that life begins when there is a live birth. The first development is that modern biological and genetic studies have verified that the foetus is genetically a separate entity from the time of conception or shortly thereafter. Secondly, advances in medical procedures have made it possible for a foetus to be treated separate from its mother and, although not sufficiently developed for normal birth, to survive separately form its mother. It must be noted that evidence adduced in behalf of the Plaintiff substantiated these assertions.
After reviewing some of the problems inherent in adopting a viability criterion, such as the extraordinary complexity of determining a particular foetus’ viability because it is not biologically fixed at some permanent specified time, and the problem inherent in balancing the interest of a foetus with those of the woman to which the foetus is physically attached, the following proposition was expounded:
“I submit that whether the fetus is a ‘person’ is irrelevant to whether it should have legal protection. The personhood debate has only obscured the decisive issues. The juridical status of developing humans has historically depended upon the capacity for a separate and independent existence. It is not necessary to abandon that traditional understanding: we must revise its application in the context of greater scientific knowledge.”
It may be assumed that the Plaintiff does not endorse the foregoing submission, because to give effect thereto would only necessitate legislative amendments extending the recognition given to foetuses at various stages of development. To some extent the Criminal Code does provide different legal protection for foetuses at different stages of development, as evidenced by s. 206(2), previously quoted. The position asserted by the Plaintiff, however, necessarily results in the rejection of the thesis that additional protection should provided to foetuses, by virtue of the submission that foetuses already possess all of the rights guaranteed by the Charter to ‘everyone.’
Section 205 of the Criminal Code, defines homicide as causing the death of a ‘human being’. Section 212, which defines the circumstances in which culpable homicide becomes murder, refers throughout to the death of a human being. Section 206(1) states that a ‘child’ becomes a human being in the circumstances enumerated, and s. 206(2), previously quoted, creates a special homicide offence with respect to a ‘child’. Thus, it is quite clear that in order for anyone to be successfully charged with homicide, it is a prerequisite that the deceased victim must have been a ‘human being,’ which precludes any child not born alive being a victim in such circumstances.
Section 216 is entitled “Infanticide” and makes it an offence for a female person, by a willful act or omission, to cause of death of her newly-born child. Section 221(1) makes it an offence, akin to murder, to cause the death, in the act of birth, of any child that has not become a human being, but the subsection does not apply to a person who causes the death of such child in good faith when he considers it necessary to preserve the life of the mother of the child.
Section 226 creates an offence for neglect by a pregnant female person to obtain assistance in childbirth with the intent that the child shall not live or to conceal the birth of the conceal the birth of the child, and section 227 makes it an offence for everyone to dispose of the dead body of a child with intent to conceal the fact of delivery, whether the child died before, during or after birth.
Sections 221 and 251 are, therefore, the only sections of the Criminal Code which deal solely with causing the death of an unborn child who never becomes, or is never deemed to be, a human being. But the fact that the Criminal Code differentiates between a human being and an unborn child clearly reveals that Parliament does not equate the life of a foetus with that of a living person, particularly when s. 34 justifies causing death, after an unlawful assault, only when the death is caused under reasonable apprehension of death or grievous bodily harm, whereas the death of a foetus is permissible under the prescribed circumstances if the continuation of the pregnancy would or would be likely to endanger not just the life of the pregnant woman but merely her health. Certainly a distinct probability of danger to the health of the pregnancy woman would justify an abortion, and indeed the mere possibility of such endangerment might be sufficient. There is no comparable justification for the destruction of a ‘human being’.
As was noted in The Unborn Child and Canadian Law, Weiler and Catton, 14 Osgoode Hall L.J. 643 at 647:
“A possible explanation of the abortion provisions is that the law is extending its protection to the potentiality of human life, but that when the potentiality of life conflicts with rights of those actually living, the rights of the latter will prevail. However, the recent controversy engendered by the case of Morgentaler v. The Queen has undoubtedly made the law-makers aware that a large segment of society does not share this view and regards it as an unfair imposition of morality by the law.”
But should an alleged ‘right’ of a living person to privacy, for example, permit a pregnant woman to be the sole arbiter of the question as to whether the pregnancy should, or should not, be permitted to achieve full term prevail over any right which the foetus may possess to be nurtured to term and become a human being? This question is only relevant if it is necessary to weigh countervailing rights – the rights of the pregnant woman as opposed to any rights possessed by a foetus, or by the State to intervene on behalf of a potential person. However, the extent of the rights of a pregnant woman to terminate her own pregnancy, without the necessity of complying with statutory procedures, is not in issue, nor would it have been an issue if those groups opposing the theory propounded by the Plaintiff had been allowed to intervene.
The Plaintiff does not question the jurisdiction of a Parliament to pass an enactment declaring abortion a crime, and indeed he fully supports such a declaration. It is the exception, or exemption from criminal liability, with which he takes issue. But the fact that there now exists a constitutionally-entrenched Charter does not detract from the basic premise that the “Parliament may determine what is not criminal as well as what is, and may hence introduce dispensations or exemptions in its criminal legislation”: Laskin, C.J.C. in Morgentaler v. The Queen (supra) at p. 627. The only basis upon which the Plaintiff can therefore succeed is if the exemption, contained in subsections (4), (5) and (6) of s. 251 of the Criminal Code, violated legal rights, guaranteed by the Charter to “everyone,” of foetuses.
In the Canadian Charter of Rights and freedom: A Commentary, Tarnapolsky and Beaudion, a Professor Kouri is quoted, at page 261, as suggesting that it would be logical to recognize a right to life and inviolability in favour of the fetus. The infant, once conceived, would be invested with the qualities of a subject of the law, subject to the resolutory condition that it is not born living or viable, i.e., the rights of the foetus would then disappear retroactively, This suggestion appears to be tantamount to the creation of a legal fiction – not unknown to the law – that a potential human being be deemed a legal person contingent upon the potential human being achieving the status of an actual human being. A further difficulty with thus thesis is that the law is generally concerned with actuality, not potentiality.
At page 261 of the Commentary the author of chapter 9 Patrice Grant, preferred the following comment:
“As the Charter uses the term ‘everyone’ (chacun) to designate the persons entitled to the rights and not the expression ‘all persons’ (toute personne) perhaps the intention of the legislature was to move away from the traditional concept of ‘human person’ and to turn towards the notion of potential person so that the ‘viable foetus’ would be protected by section 7.”
Any such intention, as suggested, was clearly not manifested when the Solicitor General stated that it was truly a matter of indifference to the federal Government whether the expression ‘everyone’ or ‘every person’ was utilized: Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and on the House of Commons on the Constitution of Canada, January 22, 1981, issue No. 43, page 47 and 48.
The Plaintiff’s expert medical witnesses did not take issue with the decision of parliament to exempt from criminal liability the performing of an abortion when it was necessary to do to save the life of a pregnant woman. However, it was suggested that the instances when this result is necessary are becoming “vanishingly few”. Only a couple of examples could be cited – cancer of the uterus, necessitating radiation therapy and the concomitant destruction of the fetus; and entopic pregnancies. The matter of termination of pregnancies in the interest of maintaining the health of the pregnant woman caused more concern, at least from an ethical standpoint. The saving of an existing life at the expense of potential life could be justified morally; bit to terminate a potential life merely to preserve the health of the pregnant woman could not be so easily justified. Valid moral concerns do not, however, justify otherwise indefensible legal conclusions.
Although there may be a justifiable moral distinction between terminating a pregnancy for the purpose of preserving her health, if a fetus possesses the same legal rights as dose the pregnant woman the rights are no less violated if radiation therapy is prescribed for cancer of the uterus than if an abortion is authorized to preserve the mental health of the pregnant woman.
In any event, the moral justification for the enactment of the exception to the abortion provision in not being questioned, nor, as mentioned previously, is the authority of parliament to enact the exception. Further, the delegation to professionals of the task of determining whether a pregnant woman’s health may be endangered if the pregnancy is permitted to continue is no more objectionable because of the existence of the Charter than it was prior to the rights enumerated in the Charter being entrenched.
If fetuses are included in the category of ‘everyone’ who have the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice, the issuance of certificates permitting abortions would result the same right being violated in every case – the right to life. Permitting a pregnant woman to terminate her pregnancy automatically results in the termination of the fetal life, may not be maintainable, during the early stages of pregnancy, independently of the pregnant woman. Whether expressly considered in each instance, or not, a consideration of the factors which might result in therapeutic abortion being performed necessarily entails a consideration of the fact that if an abortion is deemed justified the end result cannot be therapeutic for both the pregnant woman and the fetus, a result which Parliament must have envisioned when it inserted in s.251 term “therapeutic”.
The argument in Dehler was substantially the same as that asserted by the Plaintiff. At page 761 (supra) it was stated:
“The essential fact the plaintiff seeks to prove at trial, the one which. As he puts it, as ‘at the nub of the matter’ is that the unborn are human beings from the moment of conception. That is the matter he wishes adjudicated. From it he would argue that the unborn, as human beings from conception, have a right to life and to full protection of the law and that Parliament cannot constitutionally confer on a doctor ‘the right to kill an unborn person, or upon the mother the right to an abortion’.”
Robins, J. noted that Dehler had not cited any case which holds that a fetus is within the concept of a legal person entitled to the rights asserted, and that judicial decisions demonstrated that the law has selected birth as the point at which the fetus becomes a person with full and independent rights.
There is nothing in the Canadian Bill of Rights which clearly supports any suggestion that a fetus is entitled to the benefit of the declaration ins.1 of the Canadian bill of Rights of “the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law”. Section 7 of the Charter, which is comparable to s. 1 of the Canadian Bill of Rights, does not include the phrase “enjoyment of property” and the phrase the “principles of fundamental justice” is utilized instead of “by due proceed of law:” and the Charter, utilizes the word “everyone” instead of the phrase “the individual” These distinctions provide no scope for a successful argument that Parliament intended to extend, in the Charter, the guaranteed rights to a wider, and different category of spices than those recognized the Canadian Bill of Rights as possessing the same rights.
Assuming that the analysis of Robins, to the effect that a fetus has never been recognized as a legal person, is correct, does the mere fact that rights set out in the Charter are now guaranteed, rather than merely recognized, permit an inference that Parliament intended to include fetuses in the term “everyone”, when this intention was not clearly manifested? Parliament did utilize different phrases in various sections of the Charter when setting out specific rights, such as “every citizen of Canada,” and “every person charged with an offence,” which to some extent denotes an awareness of existing differences in the legal status of those generally considered to be ‘persons.’ Further, the term “everyone” was also utilized in other sections of the Charter, when defining specific rights, in a manner which absolutely precludes the extension of the term, in those sections, to fetuses: s.8 recites that “everyone” has the right to be secure against unreasonable search or seizures; s.9 states that “everyone” has the right not to be arbitrarily detained or imprisoned; and s.10 defines rights which “everyone” has on arrest or detention. Even although the Charter guarantees the rights and freedoms set out therein subject only to such reasonable limits prescribed by law as can be demonstrably in a free democratic society, the Courts are not thereby endowed with the power to import into terms utilized in the Charter interpretations which they cannot reasonable bear.
Considerable reliance was placed by the Plaintiff on the decision of the Judicial Committee of the Privy Council in Henrietta Muir Edwards v. Attorney General for Canada (1930) A.C. 124, involving a constitutional reference by the Governor General in Council to the Supreme Court of Canada to determine if the word “persons” in s. 24 of the British North America Act includes female persons. Section 24 provides:
“24. The Governor shall from time to time, in the Queen’s name, by the instrument under the great seal of Canada, summon qualified persons to the Senate; and, subject to the provisions of this Act, every person so summoned shall become and be a member of the Senate and a Senator.”
An invitation was extended to the Judicial Committee, inferentially, not to proceed in a manner which had resulted in the Supreme Court of Canada unanimously concluding that the word “persons” in s. 24 did not include females. The Judicial Committee reversed the decision of the Supreme Court, thereby permitting women to be summoned to become members of The Senate in the same manner as they were permitted to become Members of Parliament.
The decision of the Judicial Committee in Herietta Muir Edwards was not expressly referred to in the Dehler case, and it should be noted that in the concluding paragraph of the judgment of the Judicial Committee five factors were enumerated which justified setting aside the unanimous judgment of the Supreme Court of Canada. Four of there factors were (1) that the word “person”, as used in the British North America Act, was ambiguous and may include members of either sex; (2) that thee are sections in the British North America Act which necessitate the conclusion that in some cases the word “person” must include females; (3) that in some sections of British North America Act the words “male persons” are expressly used when it is desired to confine the matter in issue to males; and (4) the Interpretation Act provided that the words importing the masculine gender include females. There are no comparable, or even remotely similar factors available in an analysis of the Charter to provide any reasonable basis on which a Court could conclude that the word “everyone” includes fetuses.
Even if the judgment of the Judicial Committee can be viewed as the product of enlightened reasoning, there is a distinct difference between a ruling which declares that existing humans are legal persons irrespective of whether the potential human ever emerges alive from the mother’s womb and thereupon assumes the role of a living individual human amongst other living individual humans whose rights, and duties, are prescribed by law.
Although rapid advances in medical science may make it socially desirable that some legal status be extended to fetuses, irrespective of ultimate viability, it is the prerogative of Parliament, and not the Courts, to enact whatever legislation may be considered appropriate to extend to the unborn any or all legal rights possessed by living persons. Because there is no existing basis in law which justifies a conclusion that fetuses are legal persons, and therefore within the scope of the term “everyone” utilized in the Charter, the claim of the Plaintiff must be dismissed. The Defendants are entitled to one set of costs.
DATED at the City of Regina, in the Province of Saskatchewan, this 13th day of October, A.D. 1983