Comment of Dr. Morris Shumiatcher, Q.C upon the judgment of Mr. Justice W.R. Matheson in the Saskatchewan Court of Queen’s Bench in the case of Borowski Vs Attorney General of Canada October 17, 1983

Those who believe in the sanction of human life throughout the world can today rejoice in the judgment of Mr. Justice Matheson because his findings of fact have carried the case for the life of the unborn in Canada more than halfway to its goal.

Upon the evidence we presented at trial last May Mr. Justice Matheson stated that the following facts have been established:

  1. Modern biological and genetic studies have verified that the unborn child is genetically a separate entity from the time conception or shortly thereafter. Thus, life begins with the fertilization o a single ovum by a single spermatozoan which is implanted in the mother’s uterus.
  2. Advances in medical procedures have made it possible for an unborn child to be treated separate and apart from its mother and, although not sufficiently- developed for normal birth, to survive separate from its mother. The learned Judge stated that evidence adduced on behalf of the Plaintiff substantiated these assertions.
  3. He also said the developments in medicine have therefore eroded the adequacy of the legal criterion for determining that life begins when there is a live birth.

Mr. Justice Matheson, having made these findings as trial Judge, and there no evidence to the contrary, these facts will be accepted by higher courts on appeal.

Mr. Justice Matheson stated that having regard to “the rapid advances in medical science” that were described by the witnesses who testified, “it may well be socially desirable that some legal; status be extended to the unborn irrespective viability” but that it is for 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.

It is here that we take issue with his Judgment. It is our position that there are present in the Common law and the Charter all of the elements that endow the unborn with status to claim and enjoy the right to live. A law that is repugnant to that right is unconstitutional and of no effect because it contravenes the supreme law of Canada which is Charter.

Under Section 7 of the Charter the therapeutic abortion provisions of the Criminal Code could be justified only if they were reformed to guarantee to the unborn the right never to be deprived of life except in circumstances that would justify bringing on the death of any other human being after there have been considered and applied all of the principles of fundamental justice.

It is our position that Parliament may enact laws affecting the status of the unborn as the learned Judge has stated. But, Parliament may do nothing to violate the Charter. It may not detract from Section 7 of the Charter, which is the supreme law of Canada, that guarantees to “everyone” the “right to life and the right not to be deprived of life save in accordance with the principles of fundamental justice”.

When and how human life begins and what it constitutes are matters that Parliament is unable to answer by passing any number of statutes. The existence of a human life is a fact: it is inherent in nature and it can never be made the subject of a legal fiction. So long as the Charter exists, Parliament cannot unjustly deprive anyone of his or her life, however small or insignificant it may seem to be.

The status that the therapeutic abortion provisions of the Criminal Code today impose upon unborn children is not unlike the inferior status suffered by Canadian women prior to “the Person’s case” in 1930.

Immediately after World War I, women were accorded the right to vote in federal elections and sit in the House of Commons, but they were not allowed to be named to the Senate.

A constitutional reference was made to the Supreme Court of Canada to answer the question of whether the British North America Act allowed women to sit in the Senate.

The Supreme Court of Canada unanimously stated that they could not.

Nothing daunted, Henrietta Muir Edwards appealed to the Privy Council in England which was then the Court of last resort for Canada.

The decision of the Supreme Court of Canada was reversed and women were declared to be persons within the meaning of the BNA’s Act and entitled to be appointed to the senate. It was the courts and not Parliament who enunciated this new status for Canadian women in 1930. Our position is that the common law, the statutes and the Charter endow the Courts with all of the requisite elements to make a similar declaration in favour of the status of unborn children today.

In “the Person’s case” of 1930, Lord Sankey described Canada’s Constitution as “a living tree capable of growth and expansion within its natural limits.” He, and other judges and constitutional scholars have said many times over that the laws which comprise Canada’s constitution ought not to be construed in a narrow spirit of legalism, but liberally; not so much on mere verbal critism of the meaning of single words, as upon the objects and general principles declared in these instruments, and so to adapt their language to the new developments and perception of the times.

Mr. Justice Matheson recognized the great advances of science and medicine that can be enjoyed by all today, and the new perceptions of which all persons, great and small, very young and very old are the beneficiaries. He has performed an outstanding service in writing the first decision in which “the facts of life” have been established and judicially articulated. There can now be no forum, judicial or legislative that can ignore the basic facts that have been established in this case.

What we ask is a declaration under the Charter that the life of the unborn child, like the life of the mother who carries that child be considered; and that the child not be deprived of life unless his existence and hers are medically incompatible. For we know that our world and al that is in it depend upon both mother and child. We know that as mother and child go, so goes the world.

To this end, we shall soon be launching an appeal to the Court of Appeal Saskatchewan.