Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.)

Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.)
Collection
Supreme Court Judgments
Date
1997-10-31
Report
[1997] 3 SCR 925
Case number
25508
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Manitoba
Subjects
Courts
Torts
Notes
SCC Case Information: 25508
Decision Content
Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925
Winnipeg Child and Family Services (Northwest Area) Appellant
v.
D.F.G. Respondent
and
The Attorney General of Manitoba,
the Government of Yukon, the Evangelical Fellowship
of Canada, the Christian Medical and Dental Society,
the Catholic Group for Health, Justice and Life,
the Alliance for Life, the Association des Centres jeunesse
du Québec, the Southeast Child and Family Services,
the West Region Child and Family Services,
the Canadian Civil Liberties Association,
the Canadian Abortion Rights Action League,
the Women’s Legal Education and Action Fund,
the Women’s Health Clinic Inc., the Metis Women
of Manitoba Inc., the Native Women’s Transition Centre Inc.
and the Manitoba Association of Rights and Liberties Inc. Interveners
Indexed as: Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.)
File No.: 25508.
1997: June 18; 1997: October 31.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for manitoba
Torts ‑‑ Negligence ‑‑ Duty of care ‑‑ Mother and unborn child ‑‑ Pregnant mother addicted to glue sniffing ‑‑ Superior court judge ordering detention and treatment of mother to prevent harm to unborn child ‑‑ Whether law of tort should be extended to permit order ‑‑ Whether appropriate for court to change law of tort.
Courts ‑‑ Jurisdiction ‑‑ Parens patriae ‑‑ Pregnant mother addicted to glue sniffing ‑‑ Superior court judge ordering detention and treatment of mother to prevent harm to unborn child ‑‑ Whether parens patriae jurisdiction should be extended to protect unborn child ‑‑ Whether appropriate for court to change law of parens patriae.
In August 1996, the respondent was five months pregnant with her fourth child. She was addicted to glue sniffing, which may damage the nervous system of the developing fetus. As a result of her addiction, two of her previous children were born permanently disabled and are permanent wards of the state. On a motion by the appellant, a superior court judge ordered that the respondent be placed in the custody of the Director of Child and Family Services and detained in a health centre for treatment until the birth of her child. One of the grounds for the order was the court’s parens patriae jurisdiction. The superior court judge, while acknowledging that the courts have never exercised this power on behalf of an unborn child, saw no reason why the power should not be extended to protect unborn children. The order was later stayed and ultimately set aside on appeal. The Court of Appeal held that the existing law of tort and of parens patriae did not support the order and, given the difficulty and complexity entailed in extending the law to permit such an order, the task was more appropriate for the legislature than the courts.
Held (Sopinka and Major JJ. dissenting): The appeal should be dismissed.
Per Lamer C.J. and La Forest, L’Heureux‑Dubé, Gonthier, Cory, McLachlin and Iacobucci JJ.: The law of Canada does not recognize the unborn child as a legal person possessing rights. This is a general proposition applicable to all aspects of the law. Once a child is born, alive and viable, the law may recognize that its existence began before birth for certain limited purposes. But the only right recognized is that of the born person. Any right or interest the fetus may have remains inchoate and incomplete until the child’s birth. It follows that, under the law, the fetus on whose behalf the appellant purported to act in seeking the detention order was not a legal person and possessed no legal rights. There was thus no legal person in whose interests the appellant could act or in whose interests a court order could be made. Putting the matter in terms of tort, there was no right to sue, whether for an injunction or damages, until the child was born alive and viable. Since the action at issue was commenced and the injunctive relief sought before the child’s birth, under the law as it presently stands, it must fail.
As well, courts do not have parens patriae jurisdiction over unborn children. The power of the court in parens patriae, as it stands, does not therefore support an order for the detention and treatment of a pregnant woman for the purpose of preventing harm to the unborn child.
As a general rule, judicial change to common law principles is confined to incremental change based largely on the mechanism of extending an existing principle to new circumstances. Courts will not extend the common law where the revision is major and its ramifications complex. To extend the law of tort to permit an order for the detention and treatment of a pregnant woman for the purpose of preventing harm to the unborn child would require major changes, involving moral choices and conflicts between fundamental interests and rights. Recognition of a fetal action against the mother for lifestyle choices would affect women, who might find themselves incarcerated and treated against their will for conduct alleged to harm the fetus. The proposed changes to the law have complex ramifications impossible for a court to fully assess, giving rise to the danger that the proposed order might impede the goal of healthy infants more than it would promote it. Taken together, the changes to the law of tort that would be required to support the order at issue are of such magnitude, consequence, and difficulty in policy terms that they exceed the proper incremental law‑making powers of the courts. These are the sort of changes which should be left to the legislature.
Similarly, to extend the court’s parens patriae jurisdiction to permit protection of unborn children would require a major change to the law of parens patriae. The same problems encountered in relation to extending tort law to the unborn arise in relation to extending the parens patriae jurisdiction of the court. The ramifications of the change would be significant and complex, since such change involves conflicts of fundamental rights and interests and difficult policy issues. A pregnant woman and her unborn child are one and to make orders protecting fetuses would radically impinge on the fundamental liberties of the mother, both as to lifestyle choices and how and as to where she chooses to live and be. The invasion of liberty involved in making court orders affecting the unborn child is far greater than the invasion of liberty involved in court orders relating to born children. In the latter case, the only liberty interest affected is the parent’s interest in making decisions for his or her child. By contrast, extension of the parens patriae jurisdiction of the court to unborn children has the potential to affect a much broader range of liberty interests since the court cannot make decisions for the unborn child without inevitably making decisions for the mother herself. Such a change would not be an incremental change but a generic change of major impact and consequence. It would seriously intrude on the rights of women. If anything is to be done, the legislature is in a much better position to weigh the competing interests and arrive at a solution that is principled and minimally intrusive to pregnant women.
Per Sopinka and Major JJ. (dissenting): The superior court judge was within his jurisdiction under parens patriae to order the respondent to refrain from the consumption of intoxicating substances, and to compel the respondent to live at a place of safety until the birth of her child. The jurisdiction available under parens patriae to act in the best interests of a child should include the power to act in the best interests of a fetus. The parens patriae jurisdiction exists for the stated purpose of doing what is necessary to protect the interests of those who are unable to protect themselves. A fetus suffering from its mother’s abusive behaviour is particularly within this class and deserves protection.
The “born alive” rule is a legal anachronism and should be set aside, at least for the purposes of this appeal. This common law rule, which requires a fetus to be born alive before any legal rights of personhood can accrue, is an evidentiary presumption rooted in rudimentary medical knowledge not a substantive rule of law. The limited medical knowledge of the past could not determine whether a child in utero was alive at the time it was subjected to an injury unless the child was also born alive, suffering from that injury. Today’s medical technology has improved to the point of eliminating nearly all of the evidentiary problems from which the “born alive” rule sprang, and it no longer makes sense to retain the rule where its application would be perverse.
When a woman chooses to carry a fetus to term, she must accept some responsibility for its well‑being and the state has an interest in trying to ensure the child’s health. Since the pregnant woman has the right to decide her lifestyle, a court’s ability to intervene to protect the fetus must be limited to extreme cases where her conduct has, on proof to the civil standard, a reasonable probability of causing serious irreparable harm to the unborn child. The test for state intervention is set at a high threshold because, in order to protect the fetus, the exercise of the parens patriae jurisdiction will necessarily involve an overriding of some rights possessed by the mother. The least rights-diminishing option should always be sought and the remedy of confinement should be the final option. The severe step of ordering confinement should be taken only when, on a balance of probabilities, no other solution is workable or effective. In cases such as this, confinement must be for purposes of treatment, not punishment. The mother remains free to reject all suggested medical treatment. While the granting of a remedy of confinement interferes with a mother’s liberty interests, those interests must bend when faced with a situation where devastating harm and a life of suffering can so easily be prevented. In any event, this interference is always subject to the mother’s right to end it by deciding to have an abortion.
In sum, while there can be no general formula ‑‑ each case must be decided on its own facts ‑‑ as a minimum, to justify a state intervention the following thresholds have to be met: (1) the woman must have decided to carry the child to term; (2) proof must be presented to a civil standard that the abusive activity will cause serious and irreparable harm to the fetus; (3) the remedy must be the least intrusive option; and (4) the process must be procedurally fair. Here, the difficult test for state intervention is met. While the “slippery slope” argument has some merit, it cannot be raised as a principled bar to granting an injunction in this case. The appellant, as a governmental agency, had the requisite standing to apply for an order.
Cases Cited
By McLachlin J.
Referred to: F (in utero), Re, [1988] 2 All E.R. 193; Tremblay v. Daigle, [1989] 2 S.C.R. 530; Montreal Tramways Co. v. Léveillé, [1933] S.C.R. 456; Paton v. British Pregnancy Advisory Service Trustees, [1979] Q.B. 276; Elliot v. Lord Joicey, [1935] A.C. 209; Dehler v. Ottawa Civic Hospital (1979), 101 D.L.R. (3d) 686, aff’d (1980), 117 D.L.R. (3d) 512; Medhurst v. Medhurst (1984), 9 D.L.R. (4th) 252; Diamond v. Hirsch, [1989] M.J. No. 377 (QL); Watkins v. Olafson, [1989] 2 S.C.R. 750; R. v. Salituro, [1991] 3 S.C.R. 654; Duval v. Seguin, [1972] 2 O.R. 686, aff’d (1973), 1 O.R. (2d) 482; Cherry (Guardian ad litem of) v. Borsman, [1992] 6 W.W.R. 701; Watt v. Rama, [1972] V.R. 353; Paton v. United Kingdom (1980), 3 E.H.R.R. 408; Dobson (Litigation Guardian of) v. Dobson (1997), 148 D.L.R. (4th) 332; Lynch v. Lynch (1991), 25 N.S.W.L.R. 411; Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2; E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388; A., Re (1990), 28 R.F.L. (3d) 288; New Brunswick (Minister of Health and Community Services) v. Hickey, N.B.Q.B., November 4, 1996, unreported; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315.
By Major J. (dissenting)
E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388; Wellesley v. Wellesley (1828), 2 Bli. N.S. 124, 4 E.R. 1078; X (a minor), Re, [1975] 1 All E.R. 697; F (in utero), Re, [1988] 2 All E.R. 193; Hughes v. State of Oklahoma, 868 P.2d 730 (1994); Commonwealth v. Cass, 467 N.E.2d 1324 (1984); State v. Horne, 319 S.E.2d 703 (1984); R. v. Sullivan, [1991] 1 S.C.R. 489; Montreal Tramways Co. v. Léveillé, [1933] S.C.R. 456; Duval v. Seguin, [1972] 2 O.R. 686, aff’d (1973), 1 O.R. (2d) 482; Paton v. British Pregnancy Advisory Service Trustees, [1979] Q.B. 276; Tremblay v. Daigle, [1989] 2 S.C.R. 530; R. v. Morgentaler, [1988] 1 S.C.R. 30; Edwards v. Attorney‑General for Canada, [1930] A.C. 124, rev’g [1928] S.C.R. 276; Dobson (Litigation Guardian of) v. Dobson (1997), 148 D.L.R. (4th) 332.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms .
Congenital Disabilities (Civil Liability) Act 1976 (U.K.), 1976, c. 28, ss. 1, 2.
Court of Queen’s Bench Act, C.C.S.M., c. C280.
Court of Queen’s Bench Rules, Man. Reg. 553/88.
Declaration of the Rights of the Child (1959), preamble.
Authors Cited
Canada. Health Canada. Joint Statement: Prevention of Fetal Alcohol Syndrome (FAS) and Fetal Alcohol Effects (FAE) in Canada. Ottawa: Health Canada, October 1996.
Canada. Parliament. House of Commons. Standing Committee on Health and Welfare, Social Affairs, Seniors and the Status of Women. Report. Foetal Alcohol Syndrome: A Preventable Tragedy. Ottawa: Queen’s Printer, June 1992.
Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples, vol. 3, Gathering Strength. Ottawa: The Commission, 1996.
Canada. Royal Commission on New Reproductive Technologies. Final Report. Proceed with Care, vol. 2. Ottawa: The Commission, 1993.
Forsythe, Clarke D. “Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms” (1987), 21 Val. U. L. Rev. 563.
Hanigsberg, Julia E. “Power and Procreation: State Interference in Pregnancy” (1991), 23 Ottawa L. Rev. 35.
Holmes, Oliver Wendell. “The Path of the Law” (1897), 10 Harv. L. Rev. 457.
Johnsen, Dawn E. “The Creation of Fetal Rights: Conflicts with Women’s Constitutional Rights to Liberty, Privacy, and Equal Protection” (1986), 95 Yale L.J. 599.
Kyres, Catherine A. “A ‘Cracked’ Image of My Mother/Myself? The Need for a Legislative Directive Proscribing Maternal Drug Abuse” (1991), 25 New Eng. L. Rev. 1325.
Manitoba. Children and Youth Secretariat. Strategy Considerations for Developing Services for Children and Youth. Winnipeg: Children and Youth Secretariat, March 1997.
Moffatt, Michael E. K., A. E. Chudley, D. Kowlessar and J. Evans. Fetal Alcohol Syndrome, Fetal Alcohol Effects and the Impact of Alcohol Exposure during Pregnancy on School Performance and Behavior in School‑age Children in a First Nation Community, November 1996.
University of Washington School of Medicine. Department of Psychiatry and Behavioral Sciences. Understanding the Occurrence of Secondary Disabilities in Clients with Fetal Alcohol Syndrome (FAS) and Fetal Alcohol Effects (FAE). Prepared by Ann P. Streissguth, Helen M. Barr, Julia Kogan and Fred L. Bookstein. Seattle, Wash.: University of Washington School of Medicine, August 1996.
APPEAL from a judgment of the Manitoba Court of Appeal (1996), 113 Man. R. (2d) 3, 131 W.A.C. 3, 138 D.L.R. (4th) 254, [1996] 10 W.W.R. 111, [1996] M.J. No. 398 (QL), setting aside an order of Schulman J. (1996), 111 Man. R. (2d) 219, 138 D.L.R. (4th) 238, [1996] 10 W.W.R. 95, [1996] M.J. No. 386 (QL), requiring the respondent to enter a treatment program for her substance addiction until the birth of her child. Appeal dismissed, Sopinka and Major JJ. dissenting.
Heather Leonoff, Q.C., and Norman Cuddy, for the appellant.
David A. W. Phillips, Joe Aiello and Darren Sawchuk, for the respondent.
Shawn Greenberg, for the intervener the Attorney General of Manitoba.
Howard Kushner and Thomas Ullyett, for the intervener the Government of Yukon.
David M. Brown and Danielle Shaw, for the interveners the Evangelical Fellowship of Canada and the Christian Medical and Dental Society.
William J. Sammon, for the intervener the Catholic Group for Health, Justice and Life.
Angela M. Costigan and Marcelle Crouse, for the intervener the Alliance for Life.
Hugues Létourneau and Viviane Primeau, for the intervener the Association des Centres jeunesse du Québec.
Jeffrey F. Harris and Edward J. Gilson, for the interveners the Southeast Child and Family Services and the West Region Child and Family Services.
John B. Laskin and Cynthia L. Tape, for the intervener the Canadian Civil Liberties Association.
Beth Symes and Lucy K. McSweeney, for the intervener the Canadian Abortion Rights Action League.
Sheilah Martin and Sharon McIvor, for the intervener the Women’s Legal Education and Action Fund.
Arne Peltz and John A. Myers, for the interveners the Women’s Health Clinic Inc., the Metis Women of Manitoba Inc., the Native Women’s Transition Centre Inc. and the Manitoba Association of Rights and Liberties Inc.
//McLachlin J.//
The judgment of Lamer C.J. and La Forest, L’Heureux-Dubé, Gonthier, Cory, McLachlin and Iacobucci was delivered by
1 McLachlin J. -- In August 1996, a judge of the Manitoba Court of Queen’s Bench ordered that the respondent, five months pregnant with her fourth child, be placed in the custody of the Director of Child and Family Services and detained at the Health Sciences Centre until the birth of her child, there to follow a course of treatment prescribed by the Director. The purpose of the order was to protect the respondent’s unborn child. The respondent was addicted to glue sniffing which may damage the nervous system of the developing fetus.
2 The order was stayed two days later and ultimately set aside on appeal. The respondent voluntarily remained at the Health Sciences Centre until discharged August 14. She stopped sniffing glue and in December gave birth to an apparently normal child, which she is now raising.
3 While the problem that gave rise to these proceedings has been resolved, the legal issues it raised have not. Hence this appeal. Winnipeg Child and Family Services (the “agency”) asks this Court to overturn the order of the Manitoba Court of Appeal striking down the original order for detention. The respondent argues that the courts have no power to order a mother into custody against her will for the purpose of protecting her unborn child, and that such a radical departure from the existing law is best made, if it is to be made at all, by the legislature.
4 I would dismiss the appeal on the ground that an order detaining a pregnant woman for the purpose of protecting her fetus would require changes to the law which cannot properly be made by the courts and should be left to the legislature.
I. History of Proceedings
5 Since the outcome of this case has been resolved by events and the passage of time, there is little point in minutely canvassing the facts and allegations. The agency stresses that of the three children that the respondent had previously given birth to, two had been injured by her glue-sniffing addiction, and that in these circumstances it felt driven to take steps to protect her fourth unborn child. The respondent points out that damage to the fetal nervous system occurs in the early stages of pregnancy long before the order was sought or made, that at an earlier stage of her pregnancy she had voluntarily sought treatment but had been turned away due to lack of facilities, that when asked to take treatment she agreed and only later refused because she had fallen into a state of intoxication, and that once taken to hospital, she remained until discharged, although the custodial order requiring her to remain had been stayed. This is not a story of heros and villains. It is the more prosaic but all too common story of people struggling to do their best in the face of inadequate facilities and the ravages of addiction. This said, the legal question remains: assuming evidence that a mother is acting in a way which may harm her unborn child, does a judge, at the behest of the state, have the power to order the mother to be taken into custody for the purpose of rectifying her conduct? It is on this footing that I approach the case.
6 Schulman J. based the order for detention on two grounds. The first, that the respondent was suffering from a mental disorder within the meaning of the Manitoba Mental Health Act, R.S.M. 1987, c. M110, was not pursued in this Court. The second ground for the order was the court’s parens patriae jurisdiction -- that is, the power of the court to act in the stead of a parent for the protection of a child. Schulman J. acknowledged that the courts have never exercised this power on behalf of an unborn child. However, he saw no reason why the power should not be extended to the protection of the child prior to birth: (1996), 111 Man. R. (2d) 219, 138 D.L.R. (4th) 238, [1996] 10 W.W.R. 95, [1996] M.J. No. 386 (QL).
7 The Court of Appeal held that the evidence did not establish incompetency under the Mental Health Act. The trial judge had wrongly relied on the court’s parens patriae jurisdiction in lunacy. This power exists only where a finding of incompetency is made on the evidence, and exists moreover only for the purpose of benefiting the patient. Nor, in the view of the court, could the order be supported on the ground of an extension of the court’s parens patriae jurisdiction to protect the child. At common law, the court’s parens patriae jurisdiction is only exercisable after the child is born: Re F (in utero), [1988] 2 All E.R. 193 (C.A.). Finally, the order could not be supported as an injunction to restrain tortious conduct. Tort law recognizes that an action brought by or on behalf of a child once born may vest prior to birth. But it does not recognize an unborn child as a legal person. There is thus no one at common law who can sue to restrain the mother from a course of action potentially harmful to the child. Having concluded that the existing law of judicial parens patriae powers and tort did not support the order, the Court of Appeal asked whether it could or should extend the law. Citing a host of difficulties, it concluded that it could not. Any restraint would involve moral choices and difficult conflicts between the rights of the mother and the interests of the unborn child. Extending the power of the courts to make this sort of order could have adverse effects; for example expectant mothers fearing state intervention might avoid detection by not seeking desirable prenatal care. The difficulty of enforcement and incompleteness of the remedy presented obstacles. Given the difficulty and complexity entailed in extension of the law, the task was more appropriate for the legislature than the courts. For these reasons, the Court of Appeal set aside the order for detention.
8 The agency asks this Court to reverse the decision of the Court of Appeal and restore the order for detention.
II. Issues
9 This appeal raises two legal issues:
(1) Does tort law, as it exists or may properly be extended by the Court, permit an order detaining a pregnant woman against her will in order to protect her unborn child from conduct that may harm the child?
(2) Alternatively, does the power of a court to make orders for the protection of children (its parens patriae jurisdiction), as it exists or may properly be extended by the Court, permit an order detaining a pregnant woman against her will in order to protect her unborn child from conduct that may harm the child?
10 The appellant agency does not request that the order for mandatory treatment be upheld. At the same time, treatment, at least in the minimal sense of abstention from substance abuse, emerged as the only justification for the order for detention. Without mandatory treatment, the order for detention would lack any foundation. Thus the question of whether a judge may order detention of a pregnant woman at the request of the state encompasses the issue of whether a judge may make an order for mandatory treatment.
III. Analysis
A. Does the Law of Tort Permit an Order for the Detention and Treatment of a Pregnant Woman for the Purpose of Preventing Harm to the Unborn Child?
1. Does the Existing Law of Tort Support the Order?
11 Before dealing with the cases treating the issue in tort law, I turn to the general proposition that the law of Canada does not recognize the unborn child as a legal or juridical person. Once a child is born, alive and viable, the law may recognize that its existence began before birth for certain limited purposes. But the only right recognized is that of the born person. This is a general proposition, applicable to all aspects of the law, including the law of torts.
12 By way of preamble, two points may be made. First, we are concerned with the common law, not statute. If Parliament or the legislatures wish to legislate legal rights for unborn children or other protective measures, that is open to them, subject to any limitations imposed by the Constitution of Canada. Further, the fact that particular statutes may touch on the interests of the unborn need not concern us. Second, the issue is not one of biological status, nor indeed spiritual status, but of legal status. As this Court put it in Tremblay v. Daigle, [1989] 2 S.C.R. 530, at p. 553:
The task of properly classifying a foetus in law and in science are different pursuits. Ascribing personhood to a foetus in law is a fundamentally normative task. It results in the recognition of rights and duties -- a matter which falls outside the concerns of scientific classification. In short, this Court’s task is a legal one. Decisions based upon broad social, political, moral and economic choices are more appropriately left to the legislature.
13 What then is the status of the fetus at common law? In Tremblay v. Daigle, the father of a fetus sought an injunction to prevent the mother from terminating the pregnancy. He argued that a fetus was a “human being” entitled to the “enjoyment of life” under s. 1 of the Charter of Human Rights and Freedoms, R.S.Q., c. C-12. This Court unanimously rejected that contention on the ground that neither the Quebec civil law nor the common law of England and Canada recognize the fetus as a juridical person. While injury to a fetus due to the negligence of third parties is actionable, the right to sue does not arise until the infant is born. See Montreal Tramways Co. v. Léveillé, [1933] S.C.R. 456; Paton v. British Pregnancy Advisory Service Trustees, [1979] Q.B. 276, at p. 279, citing Lord Russell of Killowen in Elliot v. Lord Joicey, [1935] A.C. 209 (H.L.), at p. 233; 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 (Ont. H.C.); and Diamond v. Hirsch, [1989] M.J. No. 377 (Q.B.).
14 The Court summarized the law at p. 569 and concluded that the Quebec Charter confers no rights on the unborn child:
The treatment of a foetus in tort law, property law and family law reveals a similar situation as found under the Civil Code, namely, that the foetus has no rights in private law. In the field of tort, it is in fact the Quebec case of Montreal Tramways, supra, which is most often relied upon for authority in other jurisdictions in Canada (see, e.g., Duval v. Seguin, [1972] 2 O.R. 686 (H.C.); Steeves v. Fitzsimmons (1975), 66 D.L.R. (3d) 203 (Ont. H.C.)). As stated earlier, the Montreal Tramways decision does not recognize foetuses as legal persons. In the field of property law, Anglo-Canadian law, like Quebec law, has allowed a foetus to be a beneficiary of a will or a donation but it has only protected a foetus’ interests where the foetus has been born alive and viable (see 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, and Elliot v. Lord Joicey, [1935] A.C. 209). In family law, a foetus appears to receive some protection, but, as elsewhere in the law, the rights take effect and are perfected by birth (see K. v. K., [1933] 3 W.W.R. 351 (Man. K.B.), and Solowan v. Solowan (1953), 8 W.W.R. 288 (Alta. S.C.)).
15 The position is clear. Neither the common law nor the civil law of Quebec recognizes the unborn child as a legal person possessing rights. This principle applies generally, whether the case falls under the rubric of family law, succession law or tort. Any right or interest the fetus may have remains inchoate and incomplete until the birth of the child.
16 It follows that under the law as it presently stands, the fetus on whose behalf the agency purported to act in seeking the order for the respondent’s detention was not a legal person and possessed no legal rights. If it was not a legal person and possessed no legal rights at the time of the application, then there was no legal person in whose interests the agency could act or in whose interests a court order could be made.
17 Putting the matter in terms of tort, there was no right to sue, whether for an injunction or damages, until the child was born alive and viable. The law of tort as it presently stands might permit an action for injury to the fetus to be brought in the child’s name after its birth. But there is no power in the courts to entertain such an action before the child’s birth. The action at issue was commenced and the injunctive relief sought before the child’s birth. It follows that under the law as it presently stands, it must fail.
2. Should the Law of Tort Be Extended to Permit the Order?
18 It is necessary at the outset to consider the principles that govern judicial extension of common law principles. As a general rule, judicial change is confined to incremental change “based largely on the mechanism of extending an existing principle to new circumstances”; courts will not extend the common law “where the revision is major and its ramifications complex”: Watkins v. Olafson, [1989] 2 S.C.R. 750, at pp. 760-61; approved in R. v. Salituro, [1991] 3 S.C.R. 654, at pp. 668-69, per Iacobucci J. As I stated in Watkins:
There are sound reasons supporting this judicial reluctance to dramatically recast established rules of law. The court may not be in the best position to assess the deficiencies of the existing law, much less problems which may be associated with the changes it might make. The court has before it a single case; major changes in the law should be predicated on a wider view of how the rule will operate in the broad generality of cases. Moreover, the court may not be in a position to appreciate fully the economic and policy issues underlying the choice it is asked to make. Major changes to the law often involve devising subsidiary rules and procedures relevant to their implementation, a task which is better accomplished through consultation between courts and practitioners than by judicial decree. Finally, and perhaps most importantly, there is the long-established principle that in a constitutional democracy it is the legislature, as the elected branch of government, which should assume the major responsibility for law reform.
Considerations such as these suggest that major revisions of the law are best left to the legislature. Where the matter is one of a small extension of existing rules to meet the exigencies of a new case and the consequences of the change are readily assessable, judges can and should vary existing principles. But where the revision is major and its ramifications complex, the courts must proceed with great caution.
19 The changes which the agency asks this Court to make to the law of tort may be summarized as follows:
1. Overturn the rule that rights accrue to a person only at birth (the “live-birth” rule);
2. Recognize a fetal right to sue the mother carrying the fetus;
3. Recognize a cause of action for lifestyle choices which may adversely affect others;
4. Recognize an injunctive remedy which deprives a defendant of important liberties, including her involuntary confinement.
20 The proposed changes to the law of tort are major, affecting the rights and remedies available in many other areas of tort law. They involve moral choices and would create conflicts between fundamental interests and rights. They would have an immediate and drastic impact on the lives of women as well as men who might find themselves incarcerated and treated against their will for conduct alleged to harm others. And, they possess complex ramifications impossible for this Court to fully assess, giving rise to the danger that the proposed order might impede the goal of healthy infants more than it would promote it. In short, these are not the sort of changes which common law courts can or should make. These are the sort of changes which should be left to the legislature.
(a) Overturning the Rule that Rights Accrue only at Birth
21 A child may sue in tort for injury caused before birth. However, only when the child is born does it have the legal status to sue and damages are assessed only as of the date of birth: see Montreal Tramways, supra; Duval v. Seguin, [1972] 2 O.R. 686 (H.C.), aff’d (1973), 1 O.R. (2d) 482 (C.A.); Cherry (Guardian ad litem of) v. Borsman, [1992] 6 W.W.R. 701 (B.C.C.A.).
22 The rule that a fetus does not have a cause of action for prenatal injuries until “born alive” also governs in other common law countries such as England and Australia. In England, the Congenital Disabilities (Civil Liability) Act 1976 (U.K.), 1976, c. 28, s. 1, creates the basis of civil liability where a child is born disabled in consequence of tortious action of some person before the child’s birth. In Australia, the Supreme Court of Victoria in Watt v. Rama, [1972] V.R. 353 (Full Ct.), in permitting a claim for a prenatal injury resulting from an accident to the mother during pregnancy, explained why the right to sue does not exist before birth as follows (at pp. 360-61):
On the birth the relationship crystallized and out of it arose a duty on the defendant in relation to the child. On the facts which for present purposes must be assumed, the child was born with injuries caused by the act or neglect of the defendant in the driving of his car. But as the child could not in the very nature of things acquire rights correlative to a duty until it became by birth a living person, and as it was not until then that it could sustain injuries as a living person, it was, we think, at that stage that the duty arising out of the relationship was attached to the defendant, and it was at that stage that the defendant was, on the assumption that his act or omission in the driving of the car constituted a failure to take reasonable care, in breach of the duty to take reasonable care to avoid injury to the child. On this view the fact that damage was done to the embryo or foetus before birth, if such was sought to be established, was not an independent element in the plaintiff’s cause of action, but merely an evidentiary fact relevant to the issue of causation. [Emphasis added.]
23 To permit intervention prior to birth in recognition of a duty of care owed to the fetus in utero would constitute a major departure from the common law as it has stood for decades. It would reverse the long-standing principle of tort law that remedies for negligent behaviour cannot be pursued until a cause of action is brought by a juridical person.
24 This change to the law of tort is fraught with complexities and ramifications, the consequences of which cannot be precisely foretold. At what stage would a fetus acquire rights? Could women who choose to terminate a pregnancy face injunctive relief prohibiting termination, relief which this Court rejected in Tremblay v. Daigle? Alternatively, could they face an action for damages brought on behalf of the fetus for its lost life? If a pregnant woman is killed as a consequence of negligence on the highway, may a family sue not only for her death, but for that of the unborn child? If it is established that a fetus can feel discomfort, can it sue its mother (or perhaps her doctor) and claim damages for the discomfort? If the unborn child is a legal person with legal rights, arguments can be made in favour of all these propositions. Some might endorse such changes, others deplore them. The point is that they are major changes attracting an array of consequences that would place the courts at the heart of a web of thorny moral and social issues which are better dealt with by elected legislators than by the courts. Having broken the time-honoured rule that legal rights accrue only upon live birth, the courts would find it difficult to limit application of the new principle to particular cases. By contrast, the legislature, should it choose to introduce a law permitting action to protect unborn children against substance abuse, could limit the law to that precise case.
25 Two arguments are made in favour of this Court abolishing the rule that no legal rights accrue before live birth. The first is that there is no defensible difference between a born child and an unborn child. This is essentially a biological argument. As noted above, the inquiry before this Court is not a biological one, but a legal one: Tremblay v. Daigle, supra. The common law has always distinguished between an unborn child and a child after birth. The proposition that biologically there may be little difference between the two is not relevant to this inquiry. For legal purposes there are great differences between the unborn and the born child, differences which raise a host of complexities.
26 The second argument is that the court should overturn the “live-birth” rule because the present law does not provide a remedy for situations like the case at bar. This argument suffers from two flaws. First, it can be made in every case where a court is asked to make a major and complex change to the law. If there were a remedy, the major change would not be required. The Court rejected this argument in Watkins v. Olafson, supra, and Salituro, supra. Nor can it avail in this case. Second, the argument begs the questions of whether a remedy is required, and if so, what remedy and how finely tailored a remedy is best able to achieve the desired social consequence. It is not every evil which attracts court action; some evils remain for the legislature to correct.
(b) Recognizing a Fetal Right to Sue the Mother Carrying the Fetus
27 Before birth the mother and unborn child are one in the sense that “[t]he ‘life’ of the foetus is intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman”: Paton v. United Kingdom (1980), 3 E.H.R.R. 408 (Comm.), at p. 415, applied in Re F (in utero), supra. It is only after birth that the fetus assumes a separate personality. Accordingly, the law has always treated the mother and unborn child as one. To sue a pregnant woman on behalf of her unborn fetus therefore posits the anomaly of one part of a legal and physical entity suing itself.
28 It is therefore not surprising that no case has been cited to us from any jurisdiction in the world where a pregnant woman has been sued on behalf of her fetus. A few cases have accepted that a child, once born, may bring an action against his/he