Tremblay v. Daigle

Tremblay v. Daigle
Collection
Supreme Court Judgments
Date
1989-11-16
Report
[1989] 2 SCR 530
Case number
21553
Judges
Dickson, Robert George Brian; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley
On appeal from
Quebec
Subjects
Civil law
Civil procedure
Constitutional law
Notes
SCC Case Information: 21553
Decision Content
Tremblay v. Daigle, [1989] 2 S.C.R. 530
Chantal Daigle Appellant
v.
Jean-Guy Tremblay Respondent
and
The Attorney General of Canada,
the Attorney General of Quebec,
the Canadian Abortion Rights Action League (CARAL),
the Women's Legal Education and Action
Fund (LEAF), the Canadian Civil Liberties
Association, the Campaign Life Coalition,
the Canadian Physicians for Life,
the Association des médecins du Québec pour
le respect de la vie, and the REAL Women of Canada Interveners
indexed as: tremblay v. daigle
File No.: 21553.
1989: August 8 *.
Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal from the court of appeal for quebec
Injunction -- Injunction against abortion -- Foetal rights -- Father's rights -- Unmarried woman seeking abortion -- Father of unborn child granted an interlocutory injunction to stop abortion -- Whether injunction should have been granted -- Whether foetus has a right to life under Quebec legislation ‑‑ Whether potential father has a right to veto the mother's decision to have an abortion -- Code of Civil Procedure, R.S.Q., c. C-25, art. 752.
Civil rights -- Provincial human rights legislation -- Right to life ‑‑ Father of unborn child obtaining an injunction to prevent mother from having an abortion -- Whether foetus a "human being" under the Quebec Charter of Human Rights and Freedoms -- Charter of Human Rights and Freedoms, R.S.Q., c. C-12, preamble, ss. 1, 2.
Civil law -- Legal status of unborn child -- Father of unborn child obtaining an injunction to prevent mother from having an abortion -- Whether foetus recognized as a juridical person under the Civil Code -- Civil Code of Lower Canada, arts. 18, 338, 345, 608, 771, 838, 945, 2543.
Constitutional law -- Charter of Rights -- Application -- Injunction -- Father of unborn child seeking an injunction to prevent mother from having an abortion -- No state action involved -- Whether Canadian Charter of Rights and Freedoms can be invoked to support the injunction.
The parties ended their relationship after five months of cohabitation. The appellant was 18 weeks pregnant at the time of the separation and decided to terminate her pregnancy. The respondent, the father of the unborn child, obtained an interlocutory injunction from the Superior Court preventing her from having the abortion. The trial judge found that a foetus is a "human being" under the Quebec Charter of Human Rights and Freedoms and therefore enjoys a "right to life" under s. 1. This conclusion, he added, was in harmony with the Civil Code's recognition of the foetus as a juridical person. He then ruled that the respondent had the necessary "interest" to request the injunction. The trial judge concluded, after considering the effect of the injunction on the appellant's rights under s. 7 of the Canadian Charter of Rights and Freedoms and s. 1 of the Quebec Charter, that the foetus' right to life should prevail in the present case. The injunction was upheld by a majority of the Court of Appeal.
Held: The appeal should be allowed.
The injunction must be set aside because the substantive rights which are alleged to support it -- the rights accorded to a foetus or a potential father -- do not exist.
A foetus is not included within the term "human being" in the Quebec Charter and, therefore, does not enjoy the right to life conferred by s. 1. The Quebec Charter, considered as a whole, does not display any clear intention on the part of its framers to consider the status of a foetus. It is framed in very general terms and makes no reference to the foetus or foetal rights, nor does it include any definition of the term "human being" or "person". This lack of an intention to deal with a foetus's status is, in itself, a strong reason for not finding foetal rights under the Quebec Charter. If the legislature had wished to accord a foetus the right to life, it is unlikely that it would have left the protection of this right in such an uncertain state. As this case demonstrates, a foetus' alleged right to life will be protected only at the discretionary request of third parties.
The difficult issue of whether a foetus is a legal person cannot be settled by a purely linguistic argument that the plain meaning of the term "human being" includes foetuses. Like a purely scientific argument, a purely linguistic argument attempts to settle a legal debate by non‑legal means. What is required are substantive legal reasons which support a conclusion that the term "human being" has a particular meaning. As for the differing usage of the terms "human being" and "person" in the Quebec Charter, it does not lead to the conclusion that a foetus is included within the term "human being". The more plausible explanation is that different terms were used in order to distinguish between physical and moral persons.
A consideration of the status of the foetus under the Civil Code supports the conclusion that a foetus is not a "human being" under the Quebec Charter. The provisions of the Code providing for the appointment of a curator for an unborn child and the provisions granting patrimonial interests to such child do not implicitly recognize that a foetus is a juridical person. Articles 338 and 345, like art. 945, simply provide a mechanism whereby the interests of the foetus described elsewhere in the Code can be protected. They do not accord the foetus any additional rights or interests. In addition, the realization of the patrimonial interests of the foetus under arts. 608, 771, 838 and 2543 of the Code is subject to a suspensive condition that the foetus be born alive and viable. The recognition of the foetus' juridical personality is only a "fiction of the civil law" which is utilized in order to protect the future interests of the foetus. In view of the treatment of the foetus in the remainder of the Code, the term "human being" in art. 18 of the Code, which provides that "Every human being possesses juridical personality", cannot be construed as including foetuses. The Civil Code, therefore, does not generally accord a foetus legal personality. A foetus is treated as a person only where it is necessary to do so in order to protect its interests after it is born.
While Anglo-Canadian law is not determinative in establishing the meaning to be given to general terms in the Quebec Charter, it is instructive to consider the legal status of a foetus in that body of jurisprudence. In Anglo‑Canadian law, a foetus must be born alive to enjoy rights. In light of the treatment of foetal rights in civil law and, in addition, the consistency to be found in the common law jurisdictions, it would be wrong to interpret the vague provisions of the Quebec Charter as conferring legal personhood upon the foetus.
The Canadian Charter cannot be invoked in this case to support the injunction. This is a civil action between two private parties and there is no state action which is being impugned. The respondent pointed to no "law" of any sort which he can claim is infringing his rights or anyone else's rights. The issue as to whether s. 7 of the Canadian Charter could be used to ground an affirmative claim to protection by the state was not raised. This Court should generally avoid making any unnecessary constitutional pronouncement.
Finally, there is nothing in the Quebec legislation or case law, to support the argument that the father's interest in a foetus he helped create gives him the right to veto a woman's decisions in respect of the foetus she is carrying. The lack of legal basis is fatal to this argument.
Cases Cited
Referred to: R. v. Morgentaler, [1988] 1 S.C.R. 30; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, aff'g on other grounds (1987), 33 C.C.C. (3d) 402; Morgentaler v. The Queen, [1976] 1 S.C.R. 616; Montreal Tramways Co. v. Léveillé, [1933] S.C.R. 456; Allard v. Monette (1927), 66 C.S. 291; Lavoie v. Cité de Rivière‑du‑Loup, [1955] C.S. 452; Langlois v. Meunier, [1973] C.S. 301; Assurance‑automobile ‑‑ 9, [1984] C.A.S. 489; Paton v. British Pregnancy Advisory Service Trustees, [1979] Q.B. 276; C. v. S., [1987] 1 All E.R. 1230; Attorney‑General v. T (1983), 46 A.L.R. 275; F. v. F., Fam. Ct. Australia, July 12, 1989 (Lindenmayer J.), unreported; Dehler v. Ottawa Civic Hospital (1979), 101 D.L.R. (3d) 686 (Ont. H.C.), aff'd (1980), 117 D.L.R. (3d) 512 (Ont. C.A.); Medhurst v. Medhurst (1984), 9 D.L.R. (4th) 252; Diamond v. Hirsch, Man. Q.B., July 6, 1989 (Hirschfield J.), unreported; Duval v. Seguin, [1972] 2 O.R. 686; Steeves v. Fitzsimmons (1975), 66 D.L.R. (3d) 203; Earl of Bedford's Case (1587), 7 Co. Rep. 7b, 77 E.R. 421; Thellusson v. Woodford (1805), 11 Ves. Jun. 112, 32 E.R. 1030; Elliot v. Lord Joicey, [1935] A.C. 209; K. v. K., [1933] 3 W.W.R. 351; Solowan v. Solowan (1953), 8 W.W.R. 288; Re Baby R (1988), 15 R.F.L. (3d) 225; Re Children's Aid Society of the City of Belleville and T (1987), 59 O.R. (2d) 204; Re Children's Aid Society for the District of Kenora and J.L. (1981), 134 D.L.R. (3d) 249; Re F (in utero), [1988] 2 W.L.R. 1288; Paton v. United Kingdom, (1980), 3 E.H.R.R. 408; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Whalley v. Whalley (1981), 122 D.L.R. (3d) 717; Mock v. Brandanburg (1988), 61 Alta. L.R. (2d) 235; Doe v. Doe, 314 N.E.2d 128 (1974); Jones v. Smith, 278 So.2d 239 (1973); John Deere Plow Co. v. Wharton, [1915] A.C. 330; Winner v. S.M.T. (Eastern) Ltd., [1951] S.C.R. 887.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 7 .
Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, preamble, ss. 1 [repl. 1982, c. 61, s. 1], 2, 3, 4, 5, 6, 7, 8, 9, 9.1 [ad. 1982, c. 61, s. 2].
Civil Code of Lower Canada, arts. 18, 338, 345, 608, 771, 772, 838, 945, 2543.
Code of Civil Procedure, R.S.Q., c. C‑25, art. 752.
Authors Cited
Baudouin, Jean‑Louis et Yvon Renaud. Code civil annoté, vol. 1. Montréal: Wilson & Lafleur, 1989.
Canada. Law Reform Commission. Crimes Against the Foetus (Working Paper 58). Ottawa: Law Reform Commission, 1989.
Delaporte J. B. et P. N. Riffé-Caubray. Les pandectes françaises, t. 6. Paris: Riffé-Caubray, 1804.
Garant, Patrice. "Fundamental Rights and Fundamental Justice". In The Canadian Charter of Rights and Freedoms , 2nd ed. Edited by Gérald‑A. Beaudoin and Ed Ratushny. Toronto: Carswells, 1989.
Keyserlingk, Edward W. "A Right of the Unborn Child to Prenatal Care -- The Civil Law Perspective" (1982), 13 R.D.U.S. 49.
Keyserlingk, Edward W. The Unborn Child's Right to Prenatal Care: A Comparative Law Perspective. Montréal: Quebec Research Centre of Private & Comparative Law, 1983.
Knoppers, Bartha Maria. Conception artificielle et responsabilité médicale: une étude de droit comparé. Cowansville: Yvon Blais Inc., 1986.
Kouri, Robert P. "Réflexions sur le statut juridique du f{oe}tus" (1980‑81), 15 R.J.T. 193.
Lorimier de, Charles Chamilly et Charles Albert Vilbon. La bibliothèque du Code civil de la Province de Québec, t. 3. Montréal: Presses à vapeur de la Minerve, 1874.
Mayrand, Albert. L'inviolabilité de la personne humaine. Montréal: Wilson & Lafleur, 1975.
Rivet, Michèle. "The Legal Position of the Unborn Child in Canada (Civil Law)". In Proceedings of the Thirteenth International Symposium on Comparative Law (held in Ottawa (Canada) October 3‑4, 1975). Ottawa: University of Ottawa Press, 1978.
APPEAL from a judgment of the Quebec Court of Appeal, [1989] R.J.Q. 1735, 59 D.L.R. (4th) 609, affirming a judgment of the Superior Court, [1989] R.J.Q. 1980. Appeal allowed.
Daniel Bédard, Ginette Beattey and Robert Décary, Q.C., for the appellant.
Henri Kélada, for the respondent.
Bernard Laprade, Edward Sojonky, Q.C., and René LeBlanc, for the intervener the Attorney General of Canada.
Jean Bouchard and Alain Gingras, for the intervener the Attorney General of Quebec.
Clayton C. Ruby and Dan Brodsky, for the intervener the Canadian Abortion Rights Action League (CARAL).
Suzanne P. Boivin, Lucie Lamarche, Guy Cournoyer and Michelle Boivin, for the intervener the Women's Legal Education and Action Fund (LEAF).
John B. Laskin, for the intervener the Canadian Civil Liberties Association.
Edward L. Greenspan, Q.C., for the intervener the Campaign Life Coalition.
John P. Nelligan, Q.C., for the interveners the Canadian Physicians for Life and the Association des médecins du Québec pour le respect de la vie.
Angela M. Costigan and Karla Gower, for the intervener REAL Women of Canada.
//The Court//
The following is the judgment delivered by
THE COURT -- The issue in this appeal is the validity of an interlocutory injunction prohibiting Chantal Daigle from having an abortion. The injunction was granted at the request of Ms. Daigle's former boyfriend, Jean‑Guy Tremblay. Because of the urgency and importance of the case, Ms. Daigle being some 21 weeks pregnant at the time, the Court agreed to hear the application for leave to appeal, and then heard the appeal itself, on short notice during the Court's summer recess. According to the medical evidence, generally no hospital centre in the province of Quebec would permit a voluntary abortion after 20 weeks of pregnancy; patients would be required to go to the United States if they wished to terminate a pregnancy after 20 weeks, each week adding to the surgical risk. A decision in the appeal was delivered from the bench on the day of the hearing, August 8, 1989. The Court was unanimous in the view that the appeal should be allowed. It was also stated that the reasons for the decision would be rendered at a later date. The following are those reasons.
I - Facts and Procedural History
The factual record in this appeal consists solely of the affidavits of the parties and the affidavit of Claude Poulin, a doctor from Sherbrooke, Quebec.
Chantal Daigle, age 21 years, and Jean‑Guy Tremblay, age 25 years, began to see one another near the end of November, 1988 and commenced having sexual relations toward the end of December of that year. In January of 1989 Mr. Tremblay proposed marriage to Ms. Daigle. At the same time, he requested that she cease using contraceptives. Ms. Daigle was reluctant to do so, but at Mr. Tremblay's insistence she agreed to cease using contraceptive pills. The parties began to live together at the beginning of February, 1989, and arrangements were made for their marriage to take place on July 29, 1989. In March of this year Ms. Daigle was informed by her doctor that she was pregnant. The paternity of Mr. Tremblay is not questioned.
Shortly after commencing cohabitation the parties' relationship began to deteriorate. In her affidavit Ms. Daigle alleges that Mr. Tremblay became dominant, jealous and possessive and that he abused her physically. The factum of the appellant reads:
[TRANSLATION] Even though he knew the appellant was pregnant, he pushed her on to the floor, threatening to "bring her into line once and for all".
In May of 1989, as a result of this change in their relationship, Ms. Daigle says she began to contemplate having an abortion and ending her relationship with Mr. Tremblay. On July 1, the relationship deteriorated further. Ms. Daigle alleges that Mr. Tremblay, during a quarrel, seized her by the throat, and that she found refuge with the landlord, who had to call the police. Ms. Daigle left Mr. Tremblay, and on July 4 she arranged to have an abortion in Sherbrooke, Quebec. Her reasons for seeking an abortion are set out in her affidavit:
[TRANSLATION] 31. My decision is freely taken, it was taken without duress, threats or promises from anyone whatsoever and after much reflexion;
32. I do not wish to have Jean‑Guy Tremblay's child;
33. I do not wish to have a child at the present time in light of my age, my social situation as a single person and my moral values as I want to provide for a child in a serene stable family environment in which there is no violence;
34. I do not want any contact whatsoever with Jean‑Guy Tremblay;
35. I believe that to carry this pregnancy to term would cause me irreparable psychological and moral harm in the future;
36. In my view, Jean‑Guy Tremblay has no reason or interest in the present case except in order to maintain his hold on me.
On July 7, 1989 Mr. Tremblay, invoking the provisions of art. 752 of the Code of Civil Procedure, R.S.Q., c. C‑25, brought an application for a provisional injunction restraining Ms. Daigle from proceeding with the abortion. The application was granted on the same day by Richard J. of the Quebec Superior Court. On July 8, while in transit to Sherbrooke, Ms. Daigle heard of the injunction and did not carry through with the abortion.
The provisional injunction was valid until July 17, 1989, on which date Mr. Tremblay brought an application for an interlocutory injunction before Viens J. of the Quebec Superior Court. In his affidavit, Mr. Tremblay gave the following reason for seeking to prevent the abortion:
[TRANSLATION] 12. The order for an interlocutory injunction is necessary to prevent an abortion by respondent that would cause serious and irreparable harm both to me and to the human being carried by respondent;
He further stated that Ms. Daigle was in good health and that the pregnancy was progressing normally. The affidavit submitted by Dr. Claude Poulin stated that Ms. Daigle would be approximately 20 weeks pregnant as of July 20, 1989.
Viens J. granted the injunction on July 17: [1989] R.J.Q. 1980. The relevant part of his order reads as follows:
[TRANSLATION] ORDERS the respondent to abstain, under pain of all legal penalties, from undergoing an abortion or voluntarily having recourse to any method which, directly or indirectly, may result in the death of the foetus that she is carrying at the present time;
Ms. Daigle applied for leave to appeal this order to the Court of Appeal of Quebec. This application was granted by Chouinard J.A. on July 19. Her further application for a suspension of the interlocutory injunction pending the Court of Appeal decision was refused. On July 20 the Court of Appeal heard the appeal and, on July 26, the court delivered its majority judgment upholding the injunction: [1989] R.J.Q. 1735, 59 D.L.R. (4th) 609 (hereinafter cited to D.L.R.) The appellant immediately applied for leave to appeal to this Court, which application was heard and granted by a panel of five judges of the Court on August 1. The appeal was heard on August 8 before the entire Court.
Despite the short notice, intervener status was granted to a number of interested parties. The Canadian Civil Liberties Association (CCLA), the Canadian Abortion Rights Action League (CARAL), the Women's Legal Education and Action Fund (LEAF), and the Attorney General of Canada argued on behalf of allowing the appeal. REAL Women of Canada, the Campaign Life Coalition, and the Canadian Physicians for Life and the Association des médecins du Québec pour le respect de la vie, supported the respondent. The Attorney General of Quebec intervened to argue in support of the government of Quebec's power to legislate with respect to certain aspects of abortion, but, as we understand his argument, he did not take an explicit position on whether or not the appeal should be allowed.
The hearing before this Court was interrupted just after the lunch recess by Mr. Bédard, counsel for Ms. Daigle, who informed the Court that he had just learned that his client had had an abortion. Mr. Bédard stated that he was informed of this fact after the adjournment by a representative of the Attorney General of Quebec, and that he had subsequently confirmed that it was true. He was unable to offer any information as to when or under what circumstances the abortion occurred. Mr. Bédard did indicate that because of the continued importance of a decision in this appeal for his client and for other women in Quebec and Canada that he wished to continue. The Court then took a recess before hearing arguments from the parties and the interveners on whether or not the appeal should continue. After hearing these arguments, the Court decided that the appeal should continue. As indicated earlier, the Court delivered a unanimous judgment at the end of the hearing allowing the appeal and stating that the reasons for the decision would be rendered at a later date.
II - Relevant Legislation
Reference will be made later in these reasons to the several relevant sections of the Civil Code of Lower Canada and it is not necessary to repeat them here.
The Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, reads in part as follows:
WHEREAS every human being possesses intrinsic rights and freedoms designed to ensure his protection and development;
Whereas all human beings are equal in worth and dignity, and are entitled to equal protection of the law;
Whereas respect for the dignity of the human being and recognition of his rights and freedoms constitute the foundation of justice and peace;
Whereas the rights and freedoms of the human person are inseparable from the rights and freedoms of others and from the common well‑being;
Whereas it is expedient to solemnly declare the fundamental human rights and freedoms in a Charter, so that they may be guaranteed by the collective will and better protected against any violation;
Therefore, Her Majesty, with the advice and consent of the National Assembly of Québec, enacts as follows:
PART I
HUMAN RIGHTS AND FREEDOMS
CHAPTER I
FUNDAMENTAL FREEDOMS AND RIGHTS
1. Every human being has a right to life, and to personal security, inviolability and freedom.
He also possesses juridical personality.
2. Every human being whose life is in peril has a right to assistance.
Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person, or he has another valid reason.
3. Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.
4. Every person has a right to the safeguard of his dignity, honour and reputation.
5. Every person has a right to respect for his private life.
6. Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law.
7. A person's home is inviolable.
8. No one may enter upon the property of another or take anything therefrom without his express or implied consent.
9. Every person has a right to non‑disclosure of confidential information.
No person bound to professional secrecy by law and no priest or other minister of religion may, even in judicial proceedings, disclose confidential information revealed to him by reason of his position or profession, unless he is authorized to do so by the person who confided such information to him or by an express provision of law.
The tribunal must, ex officio, ensure that professional secrecy is respected.
9.1. In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well‑being of the citizens of Québec.
In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.
Section 7 of the Canadian Charter of Rights and Freedoms reads as follows:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
III - Judgments of the Courts of Quebec
Superior Court
In arriving at his conclusion that an interlocutory injunction was justified, Viens J. first considered the legal status of the foetus. In this regard, he examined the Canadian Charter of Rights and Freedoms , the Quebec Charter of Human Rights and Freedoms and the Civil Code. With respect to the Canadian Charter , he held that, in light of the Saskatchewan Court of Appeal's decision in Borowski v. Attorney General of Canada (1987), 33 C.C.C. (3d) 402 (Sask. C.A.), aff'd on other grounds, [1989] 1 S.C.R. 342, the applicant could not rely on the argument that a foetus has a right to "life, liberty and security" under s. 7 of the Canadian Charter . Viens J. then turned to the Quebec Charter. He noted that Professor Bartha Maria Knoppers in her work entitled Conception artificielle et responsabilité médicale: une étude de droit comparé (1986), at p. 182, wrote:
[TRANSLATION] . . . the rights of every human being, guaranteed by sections 1 and 2 of the Quebec Charter, to life, to security, inviolability and freedom of the person, and to aid when life is endangered, must be interpreted according to the law of Quebec.
Under the Quebec Charter, Viens J. found that a foetus is an "être humain", in English, "human being", and therefore enjoys a "right to life" under s. 1 as well as a "right to assistance" under s. 2. Viens J. held that the fact that the term "être humain" is used in the preamble and in ss. 1 and 2 of the Quebec Charter, while the term "personne", in English "person", is used in the subsequent provisions, is significant and leads to the conclusion that a foetus should be included in the former term. He further held that this interpretation is supported by a consideration of the status of the foetus under the Civil Code. Viens J. referred to arts. 338 and 345 (dealing with the appointment of curators), art. 608 (dealing with inheritance rights), and arts. 771, 838 and 945 (dealing with inter vivos gifts and wills), and said they show that a foetus is recognized as a juridical person under the Civil Code.
Viens J. then turned to consider whether the applicant had the necessary "interest" to request the injunction. He concluded that the applicant had a sufficient interest, both on his own and on behalf of the foetus.
Finally, Viens J. considered the effect of an injunction on Ms. Daigle's rights under s. 7 of the Canadian Charter and s. 1 of the Quebec Charter. After discussing her reasons for seeking an abortion, he acknowledged that she would be inconvenienced by the injunction, but held that the foetus' right to life should prevail in this situation. He added that even if his conclusions about the applicant's right to an injunction or the foetus' right to life were in doubt, the balance of convenience was clearly in favour of the applicant because denying the injunction would result in the loss of a life.
Court of Appeal
Each of the five judges in the Court of Appeal who heard the appeal wrote a judgment: LeBel, Nichols and Bernier JJ.A., for the majority, argued for dismissing the appeal while Tourigny and Chouinard JJ.A. argued for allowing it. LeBel J.A.'s reasoning was similar to that of Viens J. in the Superior Court. He first held that because the judgment of this Court in R. v. Morgentaler, [1988] 1 S.C.R. 30 ("Morgentaler (No. 2)"), did not state that women have an absolute right to have an abortion, and, further, because the Morgentaler (No. 2) judgment did not consider the question of foetal rights, the court was not precluded from finding that foetal rights were conferred by provincial legislation. LeBel J.A. then discussed the Quebec Charter and concluded that it is difficult to deny that a foetus, and, in particular, a foetus at this stage in its development, is a "human being" and thus protected under the Quebec Charter. He added that this conclusion is in harmony with the Civil Code's recognition of the foetus as a partial juridical person. In this regard, LeBel J.A. referred to the same articles of the Code mentioned by Viens J., emphasizing the significance of art. 338.
LeBel J.A. acknowledged that the recognition of foetal rights leads to a conflict between these rights and the rights of pregnant women guaranteed under s. 7 of the Canadian Charter . After reciting the reasons for which the appellant desired an abortion, and noting the stage of development of the foetus, LeBel J.A. concluded that in this case the balance of convenience clearly favoured the rights of the foetus. In closing, LeBel J.A. said that while an injunction might be a draconian remedy it is a necessary one, and, furthermore, it is one which the respondent, as the potential father, had the necessary legal interest to request.
Nichols J.A. came to the same conclusion, although he disagreed with LeBel J.A.'s interpretation of the Quebec Charter. He found that neither the Quebec nor the Canadian Charter recognizes foetal rights, stating (at p. 615):
[TRANSLATION] I have difficulty convincing myself that the Canadian or Quebec Charter recognize fundamental rights in the foetus. On this point, I would be more disposed to agree with the appellant.
adding:
[TRANSLATION] But the absence of constitutional guarantees in favour of the foetus do not translate into a total negation of its rights nor an unrestricted exercise of liberty.
Nichols J.A. held that foetal rights are recognized by custom and, implicitly, by our laws. In support of this argument, he referred to the review in the Law Reform Commission's Working Paper 58, Crimes Against the Foetus (1989), of the history of legal restrictions on abortion. Nichols J.A. stated that the framers of the Civil Code assumed that foetal rights exist and, therefore, found it unnecessary to give such rights explicit recognition in the Code. Nichols J.A. held that foetal rights were implicitly recognized in the articles which protect various legal interests of a foetus: [TRANSLATION] "They have also been recognized by custom and implicitly consecrated in our laws" (p. 618). He found that the only right of the appellant at issue in this case was her right to liberty, a right which is not absolute. Like LeBel J.A., Nichols J.A. went on to conclude that in the specific circumstances of this case, the foetus' right to life outweighed this right and therefore the injunction should be upheld.
Bernier J.A. came to the same conclusion as LeBel J.A., but, again, for different reasons. He began by noting that a woman's right to an abortion, if it exists, is not absolute and it was therefore necessary to consider the civil status of the foetus. In examining the status of a foetus, Bernier J.A. did not take a position on LeBel J.A.'s finding that a foetus is a person under the Quebec Charter. He said (at pp. 613‑14):
[TRANSLATION] Given the conclusion that I have arrived at, I do not believe that it is necessary to rule on the application of the provisions of the Quebec Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C‑12, as amended. I have certain reservations in this regard with giving a broad interpretation to the terms "human being" and "person" in ss. 1 and 2 of this Charter. The term "person" is not restricted in any manner, and one could conclude from that that in private law, anyone, without any family ties, a pure stranger could, as a result of s. 2 of this Charter, have the legal interest required in order to intrude into the private life of a couple.
Nor did he discuss the provisions of the Civil Code. Instead, he argued that a foetus has a "natural right" to be carried to term and that this right can only be overridden for a just reason. He stated (at p. 613):
[TRANSLATION] I am therefore of the opinion that the child conceived but not yet born, regardless of the stage of the pregnancy, possesses a civil status. In principle, he is entitled to be carried to term. He cannot be deprived of his natural right to life without cause which is just, sufficient, and acceptable in a free and democratic society.
On the facts of this case, he agreed with Nichols and LeBel JJ.A. that the appellant's reasons for wanting an abortion were not serious enough and, therefore, the right of the foetus must prevail.
Tourigny J.A. dissented, on the ground that the injunction could not be upheld because the foetal rights asserted by Viens J. do not exist. With respect to the Quebec Charter, Tourigny J.A. said that the foetus is not a person and, therefore, the Quebec Charter cannot confer rights upon it. She added that in respect of this issue the Quebec Charter and Canadian Charter are the same and therefore she could rely on the Saskatchewan Court of Appeal's judgment in Borowski, supra, which decided that a foetus is not a person under the Canadian Charter . As for the distinction between "human being" and "person" in the Quebec Charter, Tourigny J.A. said that at most this was meant to distinguish between physical and moral persons. She then stated that there was nothing in the Civil Code which would lead to a different conclusion. The articles referred to by Viens J. do not create foetal rights: rather, they conserve rights for future children. Tourigny J.A. added that Viens J.'s decision that a foetus is a person would have the effect of totally denying a woman's right to an abortion which was contrary to this Court's decision in Morgentaler (No. 2). Such a denial was something which, in her view, could only be accomplished by specific legislation, and not through judicial interpretation of general legislation.
Tourigny J.A. stated (at p. 642):
[TRANSLATION] I therefore cannot, with respect, share the view of the judge of first instance that a human being can be anything other that a physical person. The judge of first instance moreover agreed that "it would be difficult to include the human foetus in the expression person . . .".
In my view, the foetus is not a person and cannot enjoy rights accorded to persons by the Charter. The interpretation of this word cannot be different depending on whether the Quebec Charter or the Canadian Charter is concerned, and I believe the decision of the Saskatchewan Court of Appeal in Borowski v. Can. (A.‑G.) . . . on the protection of the rights of the foetus under the Canadian Charter is well‑founded.
Secondly, the judge of first instance found in the provisions of the Civil Code of Lower Canada, support for his interpretation of the Quebec Charter. He held that the Civil Code of Lower Canada gave rights to the child conceived but not yet born.
With respect, I am not of this opinion. What the Civil Code of Lower Canada provides are rights which a child when born not only alive but viable, may enjoy. They are essentially conservatory measures which, pending birth, will protect the interests of the child who is born alive and viable.
Tourigny J.A. concluded (at p. 643):
[TRANSLATION] In this context, I am of the view that the judgment of first instance is not founded in law and that in the absence of precise legislation on this issue, the general provisions of Quebec laws cannot be interpreted as restricting and, even more importantly, preventing the application of rights guaranteed by the Canadian Constitution.
. . .
I must point out, however, that I am not going so far as to say that it is impossible for the legislator to impose an infringement which might be justified within the framework of a free and democratic society should he adopt specific legislative provisions on this question. This is not in issue in this case which rather concerns the interpretation of the existing provisions which would give to the foetus "a right to life as of the date of its conception", as mentioned by the judge of first instance.
Chouinard J.A. agreed with Tourigny J.A. His reasons were similar, although he did make a few additional comments. He explicitly stated that he disagreed with Viens J.'s balancing of the rights of the foetus and the appellant. Chouinard J.A. did acknowledge that at a certain stage in its development a foetus may have rights in respect of which the legislature may legislate. He held, however, that such rights cannot be inferred from general legislation such as the Quebec Charter or the Civil Code. He said (at p. 621):
[TRANSLATION] Nor do I share his [the trial judge] interpretation of the Quebec Charter of Human Rights and Freedoms, . . . in particular the terms of its preamble concerning the ideas of "human being" or of "person", as well as the patrimonial or other non "substantive" rights found in the Civil Code of Lower Canada relating to rights of an unborn child on the condition that it be born alive and viable. For my part, I cannot find a serious issue of law in favour of the respondent in the present state of our legislation.
Chouinard J.A. added (at pp. 622 and 621):
[TRANSLATION] However, I consider that in the present state of our law, such limit does not exist. Neither a certain interpretation of the Quebec Charter of Human Rights and Freedoms nor the recognition of certain rights which are mostly patrimonial in nature, in the unborn child (conditional upon his birth and viability) appear to me to form a real basis for the respondent's right in the present case so as to be able to oppose the fundamental right of the appellant set out in s. 7 of the Canadian Charter of Rights and Freedoms , as interpreted in the Morgentaler case.
. . .
There is no doubt that the importance of the right to life of the foetus, at least as of a certain stage of development, may be recognized by the legislature and even given precedence over the right of the mother to deal with her body in the absence of sufficiently serious reasons yet to be determined.
In closing, Chouinard J.A. said that he would not discuss the legal interest of the respondent but added that, without undertaking a serious study of the matter, an injunction seemed inappropriate in a private dispute where the fundamental rights of the parties are at issue.
IV - Analysis
This appeal raises a number of issues, not all of which need be addressed in this judgment. Before turning to the particular issues which will be discussed, it may be helpful to describe in brief the contentions of the parties.
The position of the respondent, and the interveners who argued on his behalf, can be summarized as follows:
(1) under Quebec law a foetus has a right to life, and, in addition, a potential father has a right of veto with respect to a decision to abort his "potential progeny";
(2) the appellant would infringe each of these rights by having an abortion;
(3) an injunction is an appropriate remedy by which these rights can be protected.
The position of the appellant and the interveners who argued in her support may be summarized as presenting the following three arguments for setting aside the injunction:
(1) the substantive rights which are alleged to support the injunction do not exist;
(2) regardless of the Court's position on the above argument, an injunction is an inappropriate remedy in this case;
(3) the injunction amounts to an improper encroachment of provincial law into the federal power over criminal law.
The thesis of the first of the three arguments set out immediately above is that the respondent lacks the substantive rights on which an injunction could possibly be founded. The right which the respondent relies upon is, primarily, an alleged right to life for a foetus. This right is said to exist by virtue of the fact that a foetus is a person. There is also some argument, although it is mostly found in the judgments below and in the arguments of certain interveners, to the effect that a potential father has an independent right on his own behalf to veto any decision to abort his potential progeny. In response to this position, the appellant and the interveners who argued on her behalf argue, first, that there is no basis in law to support an assertion of foetal rights or "father's" rights. This is