Tremblay v. Daigle
Encyclopedia
| Tremblay v. Daigle | ||||||
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 Supreme Court of Canada |
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| Argued August 8, 1989 Decided November 16, 1989 |
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| 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 | ||||||
| Court membership | ||||||
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| Case opinions | ||||||
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Tremblay v. Daigle [1989] 2 S.C.R. 530, was a decision of the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
in which it was found that a fetus
Fetus
A fetus is a developing mammal or other viviparous vertebrate after the embryonic stage and before birth.In humans, the fetal stage of prenatal development starts at the beginning of the 11th week in gestational age, which is the 9th week after fertilization.-Etymology and spelling variations:The...
has no legal status in Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
as a person
Person
A person is a human being, or an entity that has certain capacities or attributes strongly associated with being human , for example in a particular moral or legal context...
, either in Canadian common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
or in Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
. This, in turn, meant that men, while claiming to be protecting fetal rights
Fetal rights
Fetal rights is a term used in some countries in reference to legislation that grants legal rights to fetuses. The term is used most often in the context of the abortion debate, as the basis for an argument in support of the pro-life stance....
, cannot acquire injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
s to stop their partners from obtaining abortions in Canada
Abortion in Canada
Abortion in Canada is not limited by the law . While some non-legal obstacles exist, Canada is one of only a few nations with no legal restrictions on abortion. Regulations and accessibility vary between provinces....
.
Background
By the time the legal controversy began, Canadian abortion law had already been mostly invalidated, as the Therapeutic Abortion CommitteeTherapeutic Abortion Committee
A Therapeutic Abortion Committee refers to a Canadian committee of three medical doctors who would decide whether an abortion fit an exemption to the Criminal Code of Canada, which only permitted lawful abortion if continuation of a pregnancy would cause a woman medical harm...
s were found unconstitutional under section 7
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven 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, namely the right to life, liberty, and...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
in R. v. Morgentaler
R. v. Morgentaler
R. v. Morgentaler [1988] 1 S.C.R. 30 was a decision of the Supreme Court of Canada wherein the abortion provision in the Criminal Code of Canada was found to be unconstitutional, as it violated a woman's right under section 7 of the Canadian Charter of Rights and Freedoms to "security of person"...
(1988). That case, however, while finding the committees were unfair to women requiring therapeutic abortion
Therapeutic abortion
Therapeutic abortion is abortion induced following a medical diagnosis. Many therapeutic abortions are performed today, with some degree of controversy regarding the quality of life, if there is a genetic condition in the embryo or fetus which is incompatible with life Therapeutic abortion is...
s, had not resolved the issue of the status of fetal rights. Tremblay v. Daigle thus began with two Quebec individuals named Chantal Daigle and Jean-Guy Tremblay, who were involved in a sexual
Human sexuality
Human sexuality is the awareness of gender differences, and the capacity to have erotic experiences and responses. Human sexuality can also be described as the way someone is sexually attracted to another person whether it is to opposite sexes , to the same sex , to either sexes , or not being...
relationship in 1988 and 1989, with Daigle becoming pregnant
Pregnancy
Pregnancy refers to the fertilization and development of one or more offspring, known as a fetus or embryo, in a woman's uterus. In a pregnancy, there can be multiple gestations, as in the case of twins or triplets...
in 1989. Tremblay, however, 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
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
. 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
Psychology
Psychology is the study of the mind and behavior. Its immediate goal is to understand individuals and groups by both establishing general principles and researching specific cases. For many, the ultimate goal of psychology is to benefit society...
health
Health
Health is the level of functional or metabolic efficiency of a living being. In humans, it is the general condition of a person's mind, body and spirit, usually meaning to be free from illness, injury or pain...
. In response, Tremblay sought an injunction to halt the abortion, claiming to be protecting the fetus's right to life
Right to life
Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...
. 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
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
to terminate the pregnancy. Nevertheless, the issue was considered important enough that the Supreme Court declined to set aside the case for mootness
Mootness
In American law, a matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law...
. 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 federalismCanadian federalism
Canada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...
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
Quebec Charter of Human Rights and Freedoms
The Charter of Human Rights and Freedoms is a statutory bill of rights and human rights code passed by the National Assembly of Quebec on June 27, 1975...
, and the Civil Code of Quebec
Civil Code of Quebec
The Civil Code of Quebec is the civil code in force in the province of Quebec, Canada. The Civil Code of Quebec came into effect on January 1, 1994, except for certain parts of the book on Family Law which were adopted by the National Assembly in the 1980s...
. 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
Biology
Biology is a natural science concerned with the study of life and living organisms, including their structure, function, growth, origin, evolution, distribution, and taxonomy. Biology is a vast subject containing many subdivisions, topics, and disciplines...
status, nor would it enter "philosophical
Philosophy
Philosophy is the study of general and fundamental problems, such as those connected with existence, knowledge, values, reason, mind, and language. Philosophy is distinguished from other ways of addressing such problems by its critical, generally systematic approach and its reliance on rational...
and theological
Theology
Theology is the systematic and rational study of religion and its influences and of the nature of religious truths, or the learned profession acquired by completing specialized training in religious studies, usually at a university or school of divinity or seminary.-Definition:Augustine of Hippo...
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
National Assembly of Quebec
The National Assembly of Quebec is the legislative body of the Province of Quebec. The Lieutenant Governor and the National Assembly compose the Parliament of Quebec, which operates in a fashion similar to those of other British-style parliamentary systems.The National Assembly was formerly the...
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 places where fetuses are recognized as juridical persons, the Court claimed 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
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
. 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 (Attorney General)Borowski v. Canada (Attorney General)
Borowski v. Canada , [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...
(1989), Tremblay v. Daigle "closed off litigation opportunities by pro-life
Pro-life
Opposition to the legalization of abortion is centered around the pro-life, or anti-abortion, movement, a social and political movement opposing elective abortion on moral grounds and supporting its legal prohibition or restriction...
opponents" of pro-choice
Pro-choice
Support for the legalization of abortion is centered around the pro-choice movement, a sociopolitical movement supporting the ethical view that a woman should have the legal right to elective abortion, meaning the right to terminate her pregnancy....
Canadians. Another scholar notes that this case, along with the Saskatchewan Court of Appeal's Borowski decision and the Supreme Court case R. v. Sullivan
R. v. Sullivan
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.-Background:Two individuals were hired as midwives, though they were not members of the medical profession...
(1991), all probably indicate the fetus is not a person under the Canadian Charter. A comparable result to Daigle occurred in 1999 in Dobson (Litigation Guardian of) v. Dobson
Dobson (Litigation Guardian of) v. Dobson
Dobson v. Dobson, [1999] 2 S.C.R. 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...
.
In 2000, Jean-Guy 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
Calgary
Calgary is a city in the Province of Alberta, Canada. It is located in the south of the province, in an area of foothills and prairie, approximately east of the front ranges of the Canadian Rockies...
. He was sentenced to five years in prison plus a ten-year supervision order. Tremblay took his fight against 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 14 attacks on women, most of whom were his former girlfriends. In 2004, the National Parole Board declined to name him a dangerous offender
Dangerous offender
In Canada and England and Wales, certain convicted persons may be designated as dangerous offenders and subject to a longer, or indefinite, term of preventive detention in order to protect the public.-Canada:...
.
See also
- List of Supreme Court of Canada cases (Dickson Court)
- R. v. Morgentaler (1993)R. v. Morgentaler (1993)R. v. Morgentaler [1993] 3 S.C.R. 463, was a decision by the Supreme Court of Canada invalidating a provincial attempt to regulate abortions in Canada. This followed the 1988 decision R. v. Morgentaler, which had struck down the federal abortion law as a breach of section 7 of the Canadian Charter...