Abortion, Rights of the Unborn, Pro-Life Expression


There is currently no law in Canada limiting abortion. The Criminal Code provision (s. 251) which criminalized abortion unless carried out in specific circumstances was struck down by the SCC in R. v. Morgentaler in 1988. A year later, in Tremblay v. Daigle, the SCC ruled that a foetus was not a human being under the Quebec Charter, and a father could not prevent the mother of his child from aborting the foetus.

R. v. Morgentaler – Supreme Court of Canada, 1988
Morgentaler and two colleagues operated an abortion clinic in Toronto. They were charged under s. 251 of the Criminal Code which criminalized abortion unless approved by a committee of an accredited hospital. The SCC held that this process of obtaining approval caused unnecessary delay and undue stress for women seeking abortions and was a violation of women’s rights to life, liberty, and security of person. The SCC, however, made it clear that they were not determining whether a total prohibition against abortion was unconstitutional, but were ruling that if the government provides a service, it must do so fairly.

Tremblay v. Daigle – Supreme Court of Canada, 1989
Tremblay was possessive and abusive, and his relationship with Daigle ended when Daigle was 18 weeks pregnant. She decided to have an abortion, but Tremblay obtained an interlocutory injunction to prevent this. The SCC, however, found that a foetus was not a human being under the Quebec Charter and did not enjoy the right to life protected there. (The Canadian Charter was not implicated as it was a case between two private parties.) The SCC also held that there was nothing in the case law or legislation to support a father’s right to veto a woman’s decision regarding the foetus.

Rights of the Unborn

A foetus is not a person in the eyes of the law and is not granted Charter protection. Once born, however, a child can sue a third-party for damages suffered in utero. Nevertheless, this does not include the child’s mother. A mother and her foetus have a unique relationship, and allowing a child to sue his/her mother for damages occurring during pregnancy is seen as detrimental to this relationship. In addition, allowing the state to dictate what a mother can and cannot do while pregnant is seen as too great a violation of her personal autonomy.

Borowski v. Canada (Attorney General) – Supreme Court of Canada, 1989
Borowski challenged the Criminal Code provisions relating to abortion, arguing that they violated the s. 7 life, liberty, and security of person rights and section 15 equality rights of the foetus. The SCC held that the appeal was moot, meaning it would not resolve the controversy, because the abortion provisions had already been struck down by the SCC in R v. Morgentaler. The SCC still has the discretion to decide a moot appeal, but declined in this case because it felt this would waste resources and was an issue better left to the legislature. The SCC also held that Borowski no longer had standing, or in other words sufficient connection the issue, to bring this case. Standing on the original claim disappeared when s. 251 was struck down in R v. Morgentaler. In addition, in order for Borowski to bring this case forward under the Charter, he needed to allege that his own rights were violated (not simply that of the foetus) or challenge legislation (not just foetus rights in the abstract). Since he could not do this, he did not have standing under the Charter.

Winnipeg Child and Family Services (Northwest Area) v. D.F. G. – Supreme Court of Canada, 1997
The respondent was addicted to glue sniffing. As a result, two of her children were born disabled and were currently wards of the state. She was now five months pregnant with her fourth child, and the Winnipeg Child and Family Services applied for an order to detain her in a health center for treatment until her child was born. The SCC held that an unborn child is not a legal person possessing rights; therefore, the court could not make an order on his/her behalf. The SCC also found that it did not have parens patriae jurisdiction (where the state acts as a parent) over unborn children. It found that altering this involved significant policy issues and major changes to the law which were better left up to the legislature.

Dobson (Litigation Guardian of) v. Dobson – Supreme Court of Canada, 1999
The appellant was 27 weeks pregnant with the respondent when she was in a car accident caused by her negligent driving. This caused permanent mental and physical injuries to the respondent who was subsequently born by Caesarean section the next day. The respondent, through his litigation guardian, tried to sue the appellant. The SCC held that a mother could not be sued by her child for prenatal injuries caused by her negligence. It found that the relationship between a mother and her foetus is unlike any other relationship. Imposing a legal duty of care on a mother would severely intrude on her autonomy and lifestyle choices, including what she could eat, where she could work, and her sexual relations. It would also be damaging to the family unit and would not solve the main issue at stake, the financial support of children with special needs.

Pro-Life Views and Trade Unions

Six jurisdictions in Canada allow for religious exemptions from trade unions: the federal jurisdiction, British Columbia, Alberta, Saskatchewan, Manitoba, and Ontario. Certain individuals have applied for this exemption based on their opposition to the trade union’s policy on abortion. Because a religious belief must be more than a strongly-held social or political view, opposition to abortion has been a challenging avenue to use in gaining religious exemption.

Tremblay v. Ontario Public Service Employees Union – Ontario Labour Relations Board, 1987
Tremblay was Roman Catholic and pro-life. He was a strong supporter of the union until it adopted a pro-choice resolution. He then applied for religious exemption from the payment of dues based on the union’s expenditures supporting abortion. The Ontario Labour Relations Board, however, found that the expenditures were too remote and denied his application.

Justin Wasilifsky and Nancy Wasilifsky, and North Vancouver Teachers’ Association, and British Columbia Teachers’ Federation, and The Board of School Trustees of School District No. 44 and Confederation of Canadian Trade Unions – BC Industrial Relations Council, 1989
The Wasilifskys (husband and wife) were Catholic and strongly opposed abortion. They had actively supported trade unions in the past; however, once their union adopted policy statements supporting abortion, the Wasilifskys worked hard to change them. They did not succeed in changing the policies, and when they learned about the religious exemption, they applied for it. The British Columbia Industrial Relations Council (the “Council”), on appeal, granted the exemption. The Council held that their stance on abortion was a sincerely held a religious belief that was in opposition to the policies of their union.

Daryl Anaka and Terrace District Teacher’s Association and the Board of School Trustees in School District No. 88 – BC Industrial Relations Council, 1991
Anaka was Catholic and strongly opposed to abortion. He wrote motions in opposition of the BC Teacher’s Federation’s pro-choice policies and opposed the unionization of Terrace District Teacher’s Association. He applied for religious exemption, but the BC Industrial Relations Council (the “Council”) denied his application. The Council found that Anaka’s religious beliefs were not irreconcilable with union membership as he had followed a pattern of reconciliation in the past with the union. It did not believe he would go “all the way” and resign his employment if his application was denied.

Marry Anne Enns, Employee, Kindersley, Saskatchewan, Applicant, and Kindersley Union Hospital, Employer, and Saskatchewan Union of Nurses, Certified Union – Saskatchewan Labour Relations Board, 1993
Enns applied for religious exemption on three grounds: first, because she felt collective bargaining was adversarial and thus at odds with the Bible; second, because she believed nurses were morally barred from strike activity; and third, because through paying dues, she would be supporting causes she did not agree with, including abortion. The Saskatchewan Labour Relations Board (the “Board”) held that Enns qualified for the exemption under the first reason because it was closely tied to religious grounds. The Board found, however, that the last two reasons were not particularly religious arguments.

University Pro-Life Groups

Pro-life groups at Canadian universities have encountered many obstacles, including refusal to ratify pro-life clubs and opposition to activities occurring on school property. Charter claims against universities can only be brought if the universities are implementing a government policy. If not, pro-life groups must use other avenues, such as provincial human rights codes and torts claims, in order to challenge university decisions.

Bartram v Okanagan University College Students’ Association (Kelowna) – British Columbia Human Rights Tribunal, 2005
Okanagan University College Students’ Association (the “Association”) brought an application to dismiss Bartram’s complaint of political discrimination against himself and others who wanted to start a pro-life club. Bartram claimed that the Association refused to grant them official club status or to allow them to put up posters expressing their views. Under the BC Human Rights Code, political belief is a ground of discrimination only with respect to trade unions, employer’s organizations, and occupational associations. The BC Human Rights Tribunal found that the Association did not fall into any of these categories. The complaint was dismissed.

Gray v. UBC Students’ Union – British Columbia Supreme Court, 2008
The petitioners were members of a pro-life group that had been denied ratification at UBC Okanagan (they had been ratified the previous year). They claimed this was discrimination based on religion under the BC Human Rights Code. The BC Supreme Court upheld the decision of the BC Human Rights Tribunal which found that there was no discrimination. The UBC Students’ Union did not deny ratification because the petitioners were Christians or anti-abortion activists. The Union denied ratification because of previous activity, including the genocide awareness project, that had upset students.

Macapagal and others v. Capilano College Students’ Union (No. 2) – British Columbia Human Rights Tribunal, 2008
This was a motion brought by Capilano College Students’ Union (the “Union”) to dismiss Macapagal’s complaint of religious discrimination against herself and members of Capilano College Heartbeat Club (“Heartbeat”) under the BC Human Rights Code. The Union had rejected Heartbeat’s application for club status twice, stating it was because of the pro-life views of Heartbeat and its members. The BC Human Rights Tribunal held that the complainants’ pro-life views were a major part of their religious beliefs. The Union’s motion to dismiss the application was denied because the Tribunal felt that the complaint had a reasonable chance of succeeding. (This case later settled out of court.)

Lobo v. Carleton University – Ontario Superior Court, 2012
This was a motion brought by Carleton University to strike out claims brought by students against the school. The claims arose from the arrest of pro-life students attempting to set up a graphic display on campus. The Ontario Superior Court (the “Court”) ruled that a Charter claim could not be brought against the university since the school was not implementing a government policy at the time. Negligence claims against individuals working for the university were also struck out. The Court, held, however, that the negligence claims against the university could remain. (The end result of this case is still pending.)

Protesting against Abortion

Protesting against abortion has attracted a lot of attention over the years. BC passed the Access to Abortion Services Act in 1995 to deal with this exact issue, creating access zones around certain facilities where protesting is prohibited. Other jurisdictions have used the criminal law and torts claims to deal with protestors.

Ontario (Attorney General) v. Dieleman – Ontario Court (General Division), 1994
The Attorney General of Ontario applied to prevent anti-abortion protests within five hundred feet of certain locations in Ontario. The Ontario Court (General Division) (the “Court”) held that this would be an infringement of freedom of expression and assembly, but that the interests of women seeking an abortion justified the infringement in certain cases. An injunction to prevent protests at hospitals was not justified, but an injunction for protests in front of abortion clinics within a 60-foot radius (30-foot radius for one of the clinics) was justified. An injunction was also granted for protest activity occurring during business hours inside a 25-foot radius of physicians’ offices and, at any time, within 500 feet of their homes.

R. v. Lewis – British Columbia Supreme Court, 1996
The accused was charged under the Access to Abortion Services Act for protesting against abortion and engaging in sidewalk interference within an access zone area. The BC Supreme Court (the “Court), on appeal, held that while the Act did violate Lewis’s freedom of expression, this was justified under section 1. The Court found that the objective of the Act – to facilitate access to abortion– was a valid objective.

R. v. Whatcott – Saskatchewan Court of Queen’s Bench, 2004
Whatcott and other pro-life activists were showing large photographs of aborted fetuses to passing motorists. A police officer, concerned about distracting motorists during rush hour traffic, asked Whatcott to take down the picture. Whatcott handed over the photograph, but went to retrieve another. He was charged, and later convicted, of wilfully obstructing a police officer. The Saskatchewan Court of Queen’s Bench (the “Court”) allowed Whatcott’s appeal. The Court found that his freedom of expression had been infringed and that this was not justified under section 1 of the Charter.

Discrimination on the Basis of Pro-Life Views

If an individual can establish that his/her pro-life views are religious and were the reason behind a negative decision made about him/her, the law seems to suggest that religious discrimination will be made out. If, however, there were other legitimate reasons behind the decision, the claim for discrimination will likely not be upheld.

Nachbaur v. PFW Publications Ltd – BC Human Rights Tribunal, 2011
Pennywise, a family-oriented community shopping newspaper, refused Nachbaur’s pro-life advertisement because it was sensationalistic and negative. It had published pro-life and Catholic ads in the past, but they had not been controversial. Nachbaur claimed that its refusal to publish this particular ad was religious discrimination. The BC Human Rights Tribunal (the “Tribunal”) found that Pennywise never published controversial advertisements, and it was on this basis that they had refused to publish Nachbaur’s advertisement. The Tribunal found that there was no discrimination.

C v. Dr. A, Dr. B and Dr. C. – BC Human Rights Tribunal, 2002
The complainant worked for a medical clinic. She had had some disagreements with one of the doctors previously about her pro-life views. She also had conflict with a different doctor over the way the office was run. The complainant was eventually terminated. She argued that her termination was because of her pro-life views and was religious discrimination. The BC Human Rights Tribunal (the “Tribunal”) held that if she had been let go because of her pro-life views, it would have been religious discrimination. The Tribunal found, however, that it was the conflict with the second doctor that instigated her termination. There was, therefore, no religious discrimination.

Kealey v. Almonte General Hospital Ontario Court of Justice – General Division 1991
Kealey was the recording secretary for all committees and boards of the Almonte General Hospital. Following the Morgentaler decision, there was conflict at the hospital as to what course it should take. Confidential information about meetings concerning abortion and mail sent to the hospital was leaked, and the evidence pointed to Kealey as the one who disclosed it. She was eventually terminated, and she claimed it was because of her pro-life views. The Ontario Court of Justice (the “Court”) found that Kealey was one of many who opposed abortion at the hospital, but was the only one terminated. She was terminated not because of her pro-life views but because of the breach of confidentiality and insubordination. There was, therefore, no religious discrimination.