Issue: does abortion section of Crim Code (251) violate s. 7?
5 to 2: yes, but 3 different opinions:
Dickson, Lamer: 251 violates sec of person; inadequate procedural safeguards.
No Dn of “health.” S1 Obj: “life and health” of preg women.
Fails rational connection test.
Beetz, Estey: Violates sec of person; hosp requirement unnecessary;
committee too restrictive. “Health” Dn not a problem. S1 Obj:
“protection of fetus.” Fails rational connection test.
Wilson: Violates sec of person, and defects substantive.
Also, violates “liberty.” No fundamental justice. S.1 Obj:
protect fetus. Can’t limit fr of conscience during first trimester.
McIntyre: defer to Parliament (LeDain agrees).
Issue: Does s. 251 violate the rights of the fetus? B. wanted
declaration that “everyone” in s. 7 and “every indiv” in s.15 includes
Unanimous decision written by Sopinka:
Borowski’s case is moot. Developed a test for mootness:
is there a live controversy? If not, should court hear case anyway?
Traditional role of jud.
Issue of standing: Borowski no longer had it
Winnipeg Child & Family Services (1997)
Issue: can a judge use a common law remedy to protect a fetus who
7 to 2: no. A fetus is not a legal person. Only the
legislature can change this.
Dissenting judges: Common law out of date; courts must fix it
to bring into line with current medical knowledge. The “slippery
slope” can be avoided.