Tremblay v. Daigle, [1989] 2 S.C.R. 530 (1989)
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Tremblay v. Daigle, [1989] 2 S.C.R. 530 (1989)
Tremblay v. Daigle, [1989] 2 S.C.R. 530
Chantal Daigle Appellant v.Jean-Guy Tremblay Respondent andThe Attorney General of Canada,the Attorney General of Quebec,the Canadian Abortion Rights Action League (CARAL),the Women's Legal Education and ActionFund (LEAF), the Canadian Civil LibertiesAssociation, 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. daigleFile 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 quebecInjunction -- 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 b...See the full content of this document
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