Borowski v. Attorney General of Canada

[1989] 1 S.C.R. 342
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The appellant, Mr Borowski, challenged the validity of s 251(4), (5) and (6) of the Canadian Criminal Code on the basis that the provisions contravened the rights of the fetus. He argued these provisions allowed for abortions to occur in circumstances that were too liberal, and, as such, they infringed a fetus’s rights to life, security of the person and equality, which are protected under ss 7 and 15 of the Canadian Charter of Rights and Freedoms.

The Canadian government argued that Mr. Borowski’s claim was moot because s 251 had been struck down in R v Morgentaler on the basis that the entire section unreasonably interfered with a woman’s right to security of the person.  In addition, the Canadian government asserted the Court should refuse to use its discretion to determine whether fetuses have rights under the Charter because any judgment would be made in isolation from the wider context in which the issue arises. Specifically, any judicial determination in the case would not consider how the rights of the fetus would be balanced against the rights of the pregnant woman, which are also protected under s 7.  The government further claimed that in any event Mr Borowski had no standing to bring the claim before the Court.

The Court held that Mr Borowski’s claim was rendered moot. The Court reasoned that his petition no longer contained a live controversy or concrete dispute in the wake of R v Morgentaler, which struck down the provision at the heart of his claim, namely s 251. To the extent that parts of Mr Borowski’s claim did not directly relate to s 251, they were nonetheless ancillary to the central constitutionality question and therefore were not severable.

The Court also concluded that it would not employ its discretion to hear the matter, regardless of it being moot. The Court believed that in the circumstances any pronouncement of the rights of the foetus would cause confusion as it would raise uncertainty about how such rights should be balanced against the rights of a woman, which are also protected under s 7 of the Charter.  Moreover, if the judiciary were to make a judgment in the absence of a concrete dispute affecting the rights of the parties, it would be encroaching on the role of the legislative branch.

The Court found that Mr. Borowski did not have standing to pursue the claim. The repeal of s 251 meant that Mr. Borowski could not rely on the expanded grounds for standing where a specific legislation is the subject of a constitutional challenge. In addition, he could not rely on traditional grounds for standing as it was the rights of the foetus, not his own rights, which were allegedly violated.

“In addition, an abstract pronouncement on foetal rights in this case would not necessarily promote judicial economy as it is very conceivable that the courts will be asked to examine specific legislation and governmental action in any event. Therefore, while I express no opinion as to foetal rights, it is far from clear that a decision on the merits will obviate the necessity for future repetitious litigation.” (p. 26)

“The appellant is asking for an interpretation of ss.7 and 15 of the Canadian Charter of Rights and Freedoms at large.  In a legislative context any rights of the feotus could be considered or at least balanced against the rights of women guaranteed by s 7…A pronouncement in favour of the appellant’s position that a feotus is protected by s 7 from the date of conception would decide the issue out of its proper context. Doctors and hospitals would be left to speculate as to how to apply such a ruling consistently with a woman’s rights under s 7.” (p. 26)