THE HISTORY OF ABORTION LAW IN CANADA

1892 Canada's first Criminal Code includes a prohibition against procuring a miscarriage.

May 14, 1969 Pierre Trudeau's omnibus Bill C-150 passes, allowing abortion if a hospital panel states that the mother's life or health are threatened - a criterion that is not defined. The homicide definition is also amended so that homicide only takes place if a child dies "after becoming a human being". Becoming a human being is defined as having the umbilical cord severed, having independent circulation, or having had breathed.

January 1988 Criminal restrictions on performing abortions are effectively removed with the Supreme Court of Canada's ruling in R. v. Morgentaler. The abortion law is struck down on the basis of section 7 of the Charter of Rights and Freedoms which is the right to "life, liberty, and security of the person". The court states that the Trudeau's abortion law had created a situation in which access to abortion was not equal across the country: women in some areas could more easily receive an abortion than could those in other areas.

1989 The Daigle case removes another barrier to abortion. All nine Supreme Court of Canada judges rule in favour of Chantal Daigle who wants to abort her child while the child's father is opposed. The result is that a father has no legal say in whether a woman aborts his child.

1989-1991 Bill C-43 is debated in the House of Commons and the Senate. The bill would have made abortion illegal unless a physician determines a women's physical or psychological health is threatened. While the bill passes in the House of Commons, it is defeated in the Senate by a tie vote.

1996 R. v. Drummond, Ontario Provincial Court
Brenda Drummond is acquitted of murder after shooting a pellet gun into her birth canal two days before her full-term son is born. The charge of attempted murder is dismissed by the court on the basis that the child is not legally a person and therefore not included in the Criminal Code. The Attorney General of Ontario decides not to appeal this decision.

1997 Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.) 3 S.C.R.
A woman identified as 'G' is five months pregnant with her fourth child and is addicted to glue sniffing. Two of G's other children were born disabled due to her addiction. Child and Family Services is permitted by the Manitoba Superior Court to detain G in a health care centre for treatment until her child's birth. The Manitoba Court of Appeal overturns this ruling, saying that child protection laws cannot be extended to unborn children. The Supreme Court of Canada agrees with this ruling saying that G's child is not a legal person possessing rights. "Any right or interest the fetus may have remains inchoate and incomplete until the child's birth."

1999 Dobson (Litigation Guardian of) v. Dobson 2 S.C.R.
Cynthia Dobson is in a vehicle accident while pregnant with her son Ryan. The accident leads to Ryan having mental and physical disabilities. Ryan's grandfather sues Ryan's mother on Ryan's behalf, saying that the accident was due to her negligence. While the lower courts rule that it is possible to sue for damage caused while in utero, the Supreme Court of Canada overturns this decision saying that courts should not impose a legal obligation on pregnant mothers to provide certain conditions for her child. The court states, "First and foremost, for reasons of public policy, the Court should not impose a duty of care upon a pregnant woman towards her foetus or subsequently born child. To do so would result in very extensive and unacceptable intrusions into the bodily integrity, privacy and autonomy rights of women."

2003 Zhang and Fung v. Kan, BCSC 5
A disturbing area of civil law has been that of 'wrongful birth'. Lydia Zhang was in her mid-30s when she gave birth to a girl with Down's Syndrome. During her pregnancy, Zhang and her doctor discussed amnioscentesis (a test which shows whether a child has Down's Syndrome), and Zhang claims the doctor told her the test was not necessary. In the case, Zhang states that if she had known the child was disabled, she would have aborted her. The doctor is found to be negligent for not encouraging the test, and is made to pay more than $300,000 in damages.


October 2003

 

2003 Focus on the Family (Canada) Association. All rights reserved.
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