Tremblay v Daigle

Tremblay v Daigle
Tremblay v Daigle
	Supreme Court of Canada
Hearing: August 8, 1989 ; Judgment: November 16, 1989
Full case name	Chantale Daigle v Jean-Guy Tremblay
Citations	[1989] 2 SCR 530, 1989 CanLII 33, 62 DLR (4th) 634
Docket No.	21553
Prior history	Judgment for Mr. Tremblay in the Quebec Court of Appeal.
Holding
	A fetus does not have a right to life under the Quebec Charter of Human Rights and Freedoms or the Civil Code of Quebec; there is no precedent for a man's right to protect his "potential progeny"
Court membership
	Chief Justice: Brian Dickson ; Puisne Justices: Antonio Lamer, Bertha Wilson, Gérard La Forest, Claire L'Heureux-Dubé, John Sopinka, Charles Gonthier, Peter Cory, Beverley McLachlin
Reasons given
Unanimous reasons by	The Court

Last updated December 03, 2023

Tremblay v Daigle [1989] 2 S.C.R. 530, was a decision of the Supreme Court of Canada in which it was found that a fetus has no legal status in Canada as a person, either in Canadian common law or in Quebec civil law.^[2]^[3] This, in turn, meant that men, while stating they are protecting fetal rights, cannot acquire injunctions to stop their partners from obtaining abortions in Canada.

Background

By the time the legal controversy began, Canadian abortion law had already been mostly invalidated, as the Therapeutic Abortion Committees were found unconstitutional under section 7 of the Canadian Charter of Rights and Freedoms in R v Morgentaler (1988). That case, however, while finding the committees were unfair to women requiring therapeutic abortions, had not resolved the issue of the status of fetal rights. Tremblay v Daigle thus began with two Quebec individuals named Chantale Daigle and Jean-Guy Tremblay, who were involved in a sexual relationship in 1988 and 1989, with Daigle becoming pregnant in 1989. Tremblay beat Daigle, despite being aware of her pregnancy, and afterwards the relationship came to an end and Daigle developed an interest in obtaining an abortion. Among other things, Daigle cited a desire to raise children in peaceful and stable circumstances, an interest in never seeing Tremblay again, and concern for her own psychological health. In response, Tremblay sought an injunction to halt the abortion, arguing he was protecting the fetus's right to life. Tremblay defended the existence of this fetal right by saying that the fetus is indeed a person.

When the case reached the Supreme Court, Daigle left the province for the United States to terminate the pregnancy. Nevertheless, the issue was considered important enough that the Supreme Court declined to set aside the case for mootness. They went on to give a decision, which was unanimous and which vindicated Daigle.

Ruling

The Court ruled that it was not necessary to deal with the issues of Canadian federalism raised by the appeal; the issue of fetal rights would suffice to solve this particular dispute and prevent similar legal incidents in the future. The fetal rights were said to be anchored in the rights to life in the Canadian Charter, the Quebec Charter of Human Rights and Freedoms, and the Civil Code of Quebec. Moreover, it was argued Tremblay had a right to protect his "potential progeny." The Supreme Court considered and rejected all these arguments. As the Court noted, its role was to consider the fetus's legal status; it would not rule on its biological status, nor would it enter "philosophical and theological debates." As far as the Court could tell, there was no legal precedent for fetal rights under the Quebec Charter, and this Charter is written in "very general terms" and does not specify whether the rights within it were available to fetuses. Although the Charter does say its rights belong to humans, whether the fetus is a human is a merely "linguistic" question that would not solve the issue of what the National Assembly of Quebec actually meant in the Charter. Moreover, if the National Assembly had meant for the Quebec Charter to apply to fetuses, it seemed questionable as to why they would not explicitly state this, rather than leave "the protection of this right in such an uncertain state."

Regarding the Civil Code, the Court considered the argument that since the Code deals with fetuses as "juridical" persons, fetuses must legally be human beings. Human beings, under the Code, have rights. Once again, the Court expressed skepticism as to the nature of the term "human being", noting the linguistic nature of the argument. While the Code does give fetuses some similar treatment to legal persons, the Court replied that this does not necessarily imply other fetal rights exist. In the situations where fetuses are recognized as juridical persons, the Court stated that this is a "fiction of the civil law".

The case next turned to Canadian law and common law. With some historical review, it was noted that while fetuses have usually had some protection under the law, abortion has not usually been viewed as being comparable to murder. Thus, a fetus is not a person under common law. The Court also declined to address the question of fetal rights under the Canadian Charter of Rights and Freedoms, noting that the Charter applies to government; it has no force in legal disputes between private citizens, which was the case in Tremblay v Daigle.

Finally, the Court ruled that there was no precedent for men's rights to protect their "potential progeny."

Aftermath

Some scholars have noted that along with Borowski v Canada (AG) (1989), Tremblay v Daigle "closed off litigation opportunities by anti-abortion opponents" of pro-abortion rights Canadians.^[4] Another scholar notes that this case, along with the Saskatchewan Court of Appeal's Borowski decision and the Supreme Court case R v Sullivan (1991), all probably indicate the fetus is not a person under the Canadian Charter.^[5] A comparable result to Daigle occurred in 1999 in Dobson (Litigation guardian of) v Dobson .^[6]

In 2000, Tremblay was convicted of two counts of assault in the violent beating of his former girlfriend and her close friend which had taken place the year before in Calgary, Alberta. He was sentenced to five years in prison plus a ten-year supervision order. Tremblay sought to appeal the supervision order to the Supreme Court, but the Court decided against hearing his appeal in 2005. At the time it was revealed that he had been convicted of fourteen attacks on women, most of whom were his former girlfriends.^[7]

Related Research Articles

Intact dilation and extraction is a surgical procedure that removes an intact fetus from the uterus. The procedure is used both after miscarriages and for abortions in the second and third trimesters of pregnancy.

The abortion debate is a longstanding, ongoing controversy that touches on the moral, legal, medical, and religious aspects of induced abortion. In English-speaking countries, the debate most visibly polarizes around adherents of the self-described "pro-choice" and "pro-life" movements. Pro-choice emphasizes a woman's right to bodily autonomy, while the pro-life position argues that a fetus is a human deserving of legal protection, separate from the will of the mother. Both terms are considered loaded in mainstream media, where terms such as "abortion rights" or "anti-abortion" are generally preferred.

<span class="mw-page-title-main">Henry Morgentaler</span> Canadian champion of womens right to safe, legal abortion

Henekh "Henry" Morgentaler, was a Polish-born Canadian physician and abortion rights advocate who fought numerous legal battles aimed at expanding abortion rights in Canada. As a Jewish youth during World War II, Morgentaler was imprisoned at the Łódź Ghetto and later at the Dachau concentration camp.

Abortion in Canada is legal throughout pregnancy and is publicly funded as a medical procedure under the combined effects of the federal Canada Health Act and provincial health-care systems. However, access to services and resources varies by region. While some restrictions exist, Canada is one of the few nations with no criminal restrictions on abortion. Abortion is subject to provincial healthcare regulatory rules and guidelines for physicians. No provinces offer abortion on request at 24 weeks and beyond, although there are exceptions for certain medical complications.

The Charter of Human Rights and Freedoms, also known as the "Quebec Charter", is a statutory bill of rights and human rights code passed by the National Assembly of Quebec on June 27, 1975. It received Royal Assent from Lieutenant Governor Hugues Lapointe, coming into effect on June 28, 1976. Introduced by the Liberal government of Robert Bourassa, the Charter followed extensive preparatory work that began under the Union Nationale government of Daniel Johnson.

The Unborn Victims of Violence Act of 2004 is a United States law that recognizes an embryo or fetus in utero as a legal victim, if they are injured or killed during the commission of any of over 60 listed federal crimes of violence. The law defines "child in utero" as "a member of the species Homo sapiens, at any stage of development, who is carried in the womb."

Abortion laws vary widely among countries and territories, and have changed over time. Such laws range from abortion being freely available on request, to regulation or restrictions of various kinds, to outright prohibition in all circumstances. Many countries and territories that allow abortion have gestational limits for the procedure depending on the reason; with the majority being up to 12 weeks for abortion on request, up to 24 weeks for rape, incest, or socioeconomic reasons, and more for fetal impairment or risk to the woman's health or life. As of 2022, countries that legally allow abortion on request or for socioeconomic reasons comprise about 60% of the world's population.

R v Morgentaler, [1988] 1 SCR 30 was a decision of the Supreme Court of Canada which held that the abortion provision in the Criminal Code was unconstitutional because it violated women's rights under section 7 of the Canadian Charter of Rights and Freedoms ("Charter") to security of the person. Since this ruling, there have been no criminal laws regulating abortion in Canada.

Therapeutic Abortion Committees were committees established under the Canadian Criminal Code. Each committee consisted of three medical doctors who would decide whether a request for an abortion fit within the exception to the criminal offence of procuring a miscarriage, i.e. performing an abortion. The Criminal Code only permitted lawful abortion if continuation of a pregnancy would cause a woman medical harm, as certified by a TAC. The TACs were almost always composed of men, due to fewer women practicing medicine and even fewer having these types of high level positions. These restrictions on abortion were struck down as unconstitutional by the Supreme Court of Canada in its decision in R v Morgentaler in 1988.

The Court of Appeal of Quebec is the highest judicial court in Quebec, Canada. It hears cases in Quebec City and Montreal.

Section 7 of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section: the right to life, liberty and security of the person. Denials of these rights are constitutional only if the denials do not breach what is referred to as fundamental justice.

The paternal rights and abortion issue is an extension of both the abortion debate and the fathers' rights movement. Abortion can be a factor for disagreement and lawsuit between partners.

Quebec law is unique in Canada because Quebec is the only province in Canada to have a juridical legal system under which civil matters are regulated by French-heritage civil law. Public law, criminal law and federal law operate according to Canadian common law.

Morgentaler v R is a decision of the Supreme Court of Canada where physician Henry Morgentaler unsuccessfully challenged the prohibition of abortion in Canada under the Criminal Code. The Court found the abortion law was appropriately passed by Parliament under the laws of federalism. This was the first of three Supreme Court decisions on abortion that were brought by Morgentaler.

Borowski v Canada (AG), [1989] 1 S.C.R. 342 is the leading Supreme Court of Canada decision on mootness of an appealed legal issue. The Court declined to decide whether the fetus had a right to life under sections 7 and 15 of the Canadian Charter of Rights and Freedoms. Had they found in favour of Borowski, laws against abortion in Canada would have to have been again enacted. Thus, along with the later Supreme Court case Tremblay v Daigle (1989), Borowski "closed off litigation opportunities" by anti-abortion activists.

Fetal rights are the moral rights or legal rights of the human fetus under natural and civil law. The term fetal rights came into wide usage after Roe v. Wade, the 1973 landmark case that legalized abortion in the United States. The concept of fetal rights has evolved to include the issues of maternal substance use disorders, including alcohol use disorder and opioid use disorder. Most international human rights charters "clearly reject claims that human rights should attach from conception or any time before birth." While international human rights instruments lack a universal inclusion of the fetus as a person for the purposes of human rights, the fetus is granted various rights in the constitutions and civil codes of several countries.

Dobson v Dobson, [1999] 2 SCR 753 was a landmark decision by the Supreme Court of Canada on a pregnant woman's legal duties in tort law. It was the first time the Supreme Court of Canada had to consider this issue. The majority of the Court found that tort claims cannot be brought against women for negligence toward the fetus during pregnancy.

R v Sullivan, [1991] 1 S.C.R. 489 was a decision by the Supreme Court of Canada on negligence and whether a partially born fetus is a person.

Azoulay v R, [1952] 2 S.C.R. 495 was a decision by the Supreme Court of Canada on abortion in Canada. The court found that with evidence so complicated, a judge should summarize it to a jury.

The legality of abortion in the United States and the various restrictions imposed on the procedure vary significantly depending on the laws of each state or other jurisdiction. Some states prohibit abortion at all stages of pregnancy with few exceptions, others permit it up to a certain point in a woman's pregnancy, while others allow abortion throughout a woman's pregnancy. In states where abortion is legal, several classes of restrictions on the procedure may exist, such as parental consent or notification laws, requirements that patients be shown an ultrasound before obtaining an abortion, mandatory waiting periods, and counselling requirements.

References

↑ SCC Case Information - Docket 21553 Supreme Court of Canada
↑ Canadian Supreme Court. 8 August 1989. Supreme Court Judgment: Tremblay v. Daigle
↑ Dunsmuir, Mollie. 1991 Reviewed 18 August 1998 Abortion: Constitutional and Legal Developments Library of Parliament, Research Branch, Law and Government Division. Current Issue Review 89-10E.
↑ Manfredi, Christopher P.; Lemieux, Scott (1999). "Judicial Discretion and Fundamental Justice: Sexual Assault in the Supreme Court of Canada". The American Journal of Comparative Law. 47 (3): 500. doi:10.2307/840940. ISSN 0002-919X.
↑ Hogg, Peter W. (2003). Constitutional law of Canada (Student ed.). Scarborough, ON: Carswell. p. 743. ISBN 978-0-459-24085-1.
↑ Dyck, Rand (1996). Bickerton, James (ed.). Canadian politics : critical approaches (3 ed.). Scarborough, Ontario: Nelson Canada. p. 437. ISBN 978-0-17-604930-0.
↑ "Top court won't hear repeat abuser's bid". CBC News. April 21, 2005.

External links

Full text of Supreme Court of Canada decision at LexUM and CanLII

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.

[1] SCC Case Information - Docket 21553 Supreme Court of Canada

[2] Canadian Supreme Court. 8 August 1989. Supreme Court Judgment: Tremblay v. Daigle

[Dunsmuir-3] Dunsmuir, Mollie. 1991 Reviewed 18 August 1998 Abortion: Constitutional and Legal Developments Library of Parliament, Research Branch, Law and Government Division. Current Issue Review 89-10E.

[4] Manfredi, Christopher P.; Lemieux, Scott (1999). "Judicial Discretion and Fundamental Justice: Sexual Assault in the Supreme Court of Canada". The American Journal of Comparative Law. 47 (3): 500. doi:10.2307/840940. ISSN 0002-919X.

[5] Hogg, Peter W. (2003). Constitutional law of Canada (Student ed.). Scarborough, ON: Carswell. p. 743. ISBN 978-0-459-24085-1.

[6] Dyck, Rand (1996). Bickerton, James (ed.). Canadian politics : critical approaches (3 ed.). Scarborough, Ontario: Nelson Canada. p. 437. ISBN 978-0-17-604930-0.

[7] "Top court won't hear repeat abuser's bid". CBC News. April 21, 2005.

[1]

[2]

[3]

[4]

[5]

[6]

[7]