The Beginning of Human Rights

In this article we will try to answer a controversial question: at what moment does a person becomes protected under the Human Rights Law. In Canada the answer can be found in three cases: R. v. Sullivan in 1991, Borowski v. Canada (Attorney General) in1989, Tremblay v. Daigle in 1989.

In 1989 Joseph Borowski a pro-life activist who was against abortions challenged the abortion provisions under section 251 of the Criminal Code as violations of the Charter rights to life, security of person and equality of the fetus. The court refused to decide whether the fetus had a right to life under sections 7 and 15 of the Canadian Charter of Rights and Freedoms. As a verdict for the Borowski v. Canada (Attorney General) the court stated that the questions of whether the already unconstitutional section 251 of the Criminal Code violates fetal rights are moot.

The Tremblay v. Daigle case had the most interesting and controversial background. The case revolved around the right of men to acquire injunctions to stop their partners from obtaining abortions, while claiming to be protecting fetal rights. The whole case was closely tied to abortion issues and it was found that a fetus has no legal status in Canada under the Common Law and the Quebec Civil Law. The conflict began between two Quebec individuals named Chantal Daigle and Jean-Guy Tremblay. They were involved in a relationship in 1988 and in 1989 Daigle became pregnant. Shortly after, the relationship ended in a dramatic way and Daigle decided to obtain an abortion. Tremblay sought an injunction to halt the abortion and claimed that he was protecting the fetus's right to life, he also defended this right in claiming that fetus is indeed a person. The case reached the Supreme Court, but at that time Daigle left Quebec and went to the United States to terminate the pregnancy. Still the Supreme Court considered the case to be very important and decided to give an unanimous decision on it. The court ruled that there was no precedent for men's rights to protect their "potential progeny."

The R. v. Sullivan case revolves around a situation when two individuals without medical education were hired as midwives. During the childbirth that occurred in a home and not at hospital the contractions stopped after the child's head appeared and tragically the child died during birth. The midwives were charged with negligence regarding both the child and the mother. The charge itself became the argument that ended this case, the British Columbia Court of Appeal found that in the common law tradition negligence occurs only with respect to persons and to be legally considered a person, one must be fully outside the mother's body and must be alive at birth. In the aftermath of this case the two previous cases here were used by Professor Peter Hogg as argumentation of the fact that a fetus until the end of birth can not be considered a legal person.

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