A fetus does not have a right to life under the Quebec Charter of Human Rights and Freedoms or the Civil Code of Quebec; there is no precedent for a man's right to protect his "potential progeny"
By the time the legal controversy began, Canadian abortion law had already been mostly invalidated, as the Therapeutic Abortion Committees were found unconstitutional under section 7 of the Canadian Charter of Rights and Freedoms in R v Morgentaler (1988). That case, however, while finding the committees were unfair to women requiring therapeutic abortions, had not resolved the issue of the status of fetal rights. Tremblay v Daigle thus began with two Quebec individuals named Chantale Daigle and Jean-Guy Tremblay, who were involved in a sexual relationship in 1988 and 1989, with Daigle becoming pregnant in 1989. Tremblay 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. 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 psychologicalhealth. In response, Tremblay sought an injunction to halt the abortion, statingrepla he was protecting the fetus's right to life. 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 to terminate the pregnancy. Nevertheless, the issue was considered important enough that the Supreme Court declined to set aside the case for mootness. They went on to give a decision, which was unanimous and which vindicated Daigle.
RulingEdit
The Court ruled that it was not necessary to deal with the issues of Canadian federalism 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, and the Civil Code of Quebec. 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 status, nor would it enter "philosophical and theological 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 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 situations where fetuses are recognized as juridical persons, the Court stated that 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. 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."
In 2000, 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, Alberta. He was sentenced to five years in prison plus a ten-year supervision order. Tremblay sought to appeal 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 fourteen attacks on women, most of whom were his former girlfriends.[7]
^SCC Case Information - Docket 21553 Supreme Court of Canada
^Canadian Supreme Court. 8 August 1989. Supreme Court Judgment: Tremblay v. Daigle
^Dunsmuir, Mollie. 1991 Reviewed 18 August 1998 Abortion: Constitutional and Legal Developments Library of Parliament, Research Branch, Law and Government Division. Current Issue Review 89-10E.
^Christopher P. Manfredi; Scott Lemieux, "Judicial Discretion and Fundamental Justice: Sexual Assault in the Supreme Court of Canada," The American Journal of Comparative Law, Vol. 47, No. 3. (Summer, 1999), p. 500.
^Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), 743.
^Rand Dyck, Canadian Politics: Critical Approaches, 3d ed. Scarborough, Ontario: Nelson Thomson Learning, 2000, page 437.
tremblay, daigle, this, article, needs, additional, citations, verification, please, help, improve, this, article, adding, citations, reliable, sources, unsourced, material, challenged, removed, find, sources, news, newspapers, books, scholar, jstor, january, . This article needs additional citations for verification Please help improve this article by adding citations to reliable sources Unsourced material may be challenged and removed Find sources Tremblay v Daigle news newspapers books scholar JSTOR January 2015 Learn how and when to remove this template message Tremblay v Daigle 1989 2 S C R 530 was a decision of the Supreme Court of Canada in which it was found that a fetus has no legal status in Canada as a person either in Canadian common law or in Quebec civil law 2 3 This in turn meant that men while stating they are protecting fetal rights cannot acquire injunctions to stop their partners from obtaining abortions in Canada Tremblay v DaigleSupreme Court of CanadaHearing August 8 1989 Judgment November 16 1989Full case nameChantale Daigle v Jean Guy TremblayCitations 1989 2 SCR 530 1989 CanLII 33 62 DLR 4th 634Docket No 21553 1 Prior historyJudgment for Mr Tremblay in the Quebec Court of Appeal HoldingA fetus does not have a right to life under the Quebec Charter of Human Rights and Freedoms or the Civil Code of Quebec there is no precedent for a man s right to protect his potential progeny Court membershipChief Justice Brian DicksonPuisne Justices Antonio Lamer Bertha Wilson Gerard La Forest Claire L Heureux Dube John Sopinka Charles Gonthier Peter Cory Beverley McLachlinReasons givenUnanimous reasons byThe Court Contents 1 Background 2 Ruling 3 Aftermath 4 See also 5 References 6 External linksBackground EditBy the time the legal controversy began Canadian abortion law had already been mostly invalidated as the Therapeutic Abortion Committees were found unconstitutional under section 7 of the Canadian Charter of Rights and Freedoms in R v Morgentaler 1988 That case however while finding the committees were unfair to women requiring therapeutic abortions had not resolved the issue of the status of fetal rights Tremblay v Daigle thus began with two Quebec individuals named Chantale Daigle and Jean Guy Tremblay who were involved in a sexual relationship in 1988 and 1989 with Daigle becoming pregnant in 1989 Tremblay 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 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 health In response Tremblay sought an injunction to halt the abortion statingrepla he was protecting the fetus s right to life 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 to terminate the pregnancy Nevertheless the issue was considered important enough that the Supreme Court declined to set aside the case for mootness They went on to give a decision which was unanimous and which vindicated Daigle Ruling EditThe Court ruled that it was not necessary to deal with the issues of Canadian federalism 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 and the Civil Code of Quebec 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 status nor would it enter philosophical and theological 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 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 situations where fetuses are recognized as juridical persons the Court stated that 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 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 EditSome scholars have noted that along with Borowski v Canada AG 1989 Tremblay v Daigle closed off litigation opportunities by anti abortion opponents of pro abortion rights Canadians 4 Another scholar notes that this case along with the Saskatchewan Court of Appeal s Borowski decision and the Supreme Court case R v Sullivan 1991 all probably indicate the fetus is not a person under the Canadian Charter 5 A comparable result to Daigle occurred in 1999 in Dobson Litigation guardian of v Dobson 6 In 2000 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 Alberta He was sentenced to five years in prison plus a ten year supervision order Tremblay sought to appeal 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 fourteen attacks on women most of whom were his former girlfriends 7 See also EditList of Supreme Court of Canada cases Dickson Court R v Morgentaler 1993 Fetal RightsReferences Edit SCC Case Information Docket 21553 Supreme Court of Canada Canadian Supreme Court 8 August 1989 Supreme Court Judgment Tremblay v Daigle Dunsmuir Mollie 1991 Reviewed 18 August 1998 Abortion Constitutional and Legal Developments Library of Parliament Research Branch Law and Government Division Current Issue Review 89 10E Christopher P Manfredi Scott Lemieux Judicial Discretion and Fundamental Justice Sexual Assault in the Supreme Court of Canada The American Journal of Comparative Law Vol 47 No 3 Summer 1999 p 500 Hogg Peter W Constitutional Law of Canada 2003 Student Ed Scarborough Ontario Thomson Canada Limited 2003 743 Rand Dyck Canadian Politics Critical Approaches 3d ed Scarborough Ontario Nelson Thomson Learning 2000 page 437 CBC News Top court won t hear repeat abuser s bid Last Updated Thu 21 Apr 2005 11 56 28 EDT URL accessed 22 August 2006 External links EditFull text of Supreme Court of Canada decision at LexUM and CanLII Retrieved from https en wikipedia org w index php title Tremblay v Daigle amp oldid 1175999273, wikipedia, wiki, book, books, library,
