Canada, House of Commons Debates, “Query Whether Charter of Rights Covers Unborn Children”, 32nd Parl, 1st Sess (5 March 1981)

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Date: 1981-03-05
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 7967-7969.
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COMMONS DEBATES — March 5, 1981


[Page 7967]

Mr. Douglas Roche (Edmonton South): Mr. Speaker, I have come here tonight to alert the House and the country to an issue which has not yet received attention. In my judgment, it is a sleeper issue and one which will have profound effects on the life of our country for decades to come. It is the abortion issue as it relates to the charter of rights, which is now before the House.

I want it understood that this brief presentation I am making tonight is not an attack on the charter, as such, and it is not a partisan appeal for any support. Rather, Sir, it is an effort to bring to the attention of the House my contention and my belief, supported by a legal opinion, that within the charter of rights, as it now stands before the House. Sections 7 and 15, contain therein not only the prospect but the likelihood of what will happen as a result of the entrenchment of Sections 7 and 15; that is, that in future any law on abortion will become unconstitutional.

I do not think this is what the public or members of the House want. I think we want a situation in which we can give a political response to the abortion issue, taking section 251 of the Criminal Code into consideration, which allows women to have abortions when the life or health of the mother is in danger. Since that amendment came into the Criminal Code in 1969, abortions have grown to the point where they now exceed 65,000 per year, and it is a very serious situation.

Tonight I only want to focus on what the charter of rights will do. I ask the parliamentary secretary to respond directly to the legal opinion which I will put before him and to draw this to the attention of the minister, because on February 20 I asked the minister whether the words “everyone and every individual”, as used in Sections 7 and 15, would apply to the unborn child. and the minister said the government did not

[Page 7968]

intend to affect the abortion question with respect to the charter.

The legal opinion I have is from the distinguished firm of Stephens, French, McKeown & Taylor, in Toronto. It was presented to the members of the all-party committee on pro-life. It is a non-partisan committee, and there are representatives from every political party. One of the co-chairmen is the distinguished hon. member for Brandon-Souris (Mr, Dinsdale), who is in the House tonight, and this opinion was presented to members yesterday. I cannot take the time of the House, at the moment, to go through it all.

I would like to point out to the parliamentary secretary and to the House that the operative law with respect to the rights of human beings today, connected to the abortion question, is a case from the Ontario Supreme Court, in which Mr. Justice Robins, in September, 1979, reiterated the law which has been upheld since then by the Ontario Court of Appeal and the Supreme Court of Canada. Mr. Justice Robins said:

—the law has selected birth as the point at which the foetus becomes a person with full and independent rights.

It will not be possible under the charter, as it is now written, given the context of the law under which we are now operating, for the foetus to be considered to be a human being and given rights. In order for the foetus to have rights, it must be born, and become capable of asserting its right to life under section 7. That is the part of my contention.

I point out that the only rights and freedoms which will exist in Canada after the charter becomes law are those presently in existence. I have already said that Mr. Justice Robins’ decision is the operative court decision. In order to make any change in that, if this charter of rights becomes entrenched, we will require a constitutional amendment. We know how difficult that will be to obtain. It will probably never come in our lifetime, and we will be entering a situation in which, under Section 15, which says the right of the woman is protected. there will be a conflict between the right of the mother and the right of the foetus.

I submit, and I believe a wide body of parliamentarians and the public would agree, that the day has come when the law must say that life begins in the womb, that the foetus is a potential human being, a human being in the process of formation, and should be afforded those rights.

I close by pointing out that if the government is sincere and does not want to upset the abortion question, it will accept an amendment that would specify, as the firm of Stephens, French, McKeown & Taylor has suggested, that everyone, including the unborn, has the right to life, that life begins at conception, and that right is assertable from conception. That is the amendment we seek.

I ask the parliamentary secretary to take this into very serious consideration. He will recognize that I have not given him any kind of a partisan argument tonight; I am giving him an argument which goes to the heart of the charter applied to the right to life.

What do the words “everyone has the right to life” actually mean? The government cannot get out from under by saying that it will not affect the abortion, because if we do not act to amend that charter, we will be entrenching abortion. I suggest that the members of the House do not recognize that this will happen. They do not wish it to happen, and certainly all those Canadians who are very concerned with the 65,000 abortions per year do not want that situation to occur.

Some hon. Members: Hear, hear!

Mr. Ron Irwin (Parliamentary Secretary to Minister of Justice and Minister of State for Social Development): Mr. Speaker, I wish to commend the hon. member for Edmonton South (Mr. Roche) for his concern about this very important issue.

During the hearings of the special joint committee, the views on the issue were very divided. The right to life advocates argued that the Charter of Rights and Freedoms should make it very clear that the unborn child has the right to life. The pro-choice groups contended the right of a woman to have an abortion should not be put in jeopardy.

Mr. J. Robert Kellerman, legal counsel, Canadian Abortion Rights Action League—CARAL—speaking of the right of life applying to the embryo or the foetus, stated the following to the special joint committee:

We have already expressed the opinion, and I think it is a fact, that the majority of the Canadian people do not subscribe to that belief. It is a minority view and it is a view which should not be allowed to express itself as if it is an entrenched right in the Constitution of Canada.

On the other hand, Major John J. H. Connors, LL.B., it health services consultant with Alliance for Life, spoke to the special joint committee along the following lines:

Consider, if you will, the stages of life as links in a chain. Canada’s pensioners. our infirmed and incapacitated, our labour force, our students. our children anti, even younger. our babies. are linked together, bccause all are human whatever might otherwise be their status. So, too, are unborn children a link in the same chain, similarly human and even more deserving of protection because of their vulnerability. Their very weakness dictates their need of the special protection of being named under section 7 of the Canadian Charter of Human Rights and Freedoms, which we respectfully request include a provision that everyone, from conception to natural death, has the right to life.

Because this is a matter on which there exist fundamentally differing views in Canada, the charter does not seek to take a position on the rights of the unborn and abortion, believing this is a question better left for determination by Parliament in the exercise of its ordinary legislative jurisdiction which can be adjusted from time to time as social and moral values evolve.

As long as abortion remains an evolving social issue with a divided public opinion it is best dealt with through the flexibility of legislation rather than entrenchment of one view or the other. The Canadian charter of rights and freedoms enjoys the support of the majority of Canadians because it protects our basic rights and liberties. With respect to the abortion issue, the charter will not in any way alter the right of Parliament to

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legislate concerning abortions but provide only that such legislation shall be consistent with principles of fundamental justice. The will of the people of Canada, as expressed through Parliament, shall continue to be the arbiter of the abortion question. The charter does not at all affect the current provisions of the Criminal Code respecting abortion: rather it provides a framework within which the question can be addressed by all Canadians.

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