Supreme Court sees no judicial role in protecting the unborn.

• Author: Bowal, Peter

One of the noble overarching purposes of law is to protect the weak from the powerful. Power may manifest itself in several ways: intellectual, social, economic and physical. For example, in theory at least, we call on the highest income earners to part with more, in both absolute and relative terms, of their income for taxes than we ask of others. Some tax revenue is dedicated to improve the conditions of the poor.

Abuse of physical power is particularly discouraged by the law. The longest standing legal traditions in society seek to prevent and compensate for acts of physical violence in criminal and civil justice. Injuring someone physically, especially where it could be prevented, is almost never tolerated by the law.

With respect to children, child protective agencies of government intervene on a broad range of safety concerns for the children, such as physical, sexual, and emotional abuse. There is legislation against child labour. The parents have a legal duty under the Criminal Code to provide the necessities of life to their children. We protect children's identity when they run afoul of the law, and approach sentencing for them with the presumption that they can, and will, be rehabilitated. We have strict special rules protecting children in the event of abandonment; abduction; injury before or during birth causing death; murder; prostitution; and incest.

Parents, especially mothers, might be surprised to learn that they even have legal duties during childbirth. A Criminal Code provision requires one to obtain assistance during childbirth. All of this special attention to childbirth and children recognizes the vulnerability in the delivery of babies and children.

What about the instance of the most vulnerable developmental stage: the fetus? One exception to the intervention of the law to prevent physical injury, recently approved by the Supreme Court of Canada, is the case of the fetus. Most detectable fetuses which are not aborted are eventually born alive, and the injurious impact of alcohol and drug use on their development is well known. The question for the Court was whether any principle of common law would apply to intervene for the protection of fetal development.

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In Winnipeg Child and Family Services v. G., the Supreme Court of Canada had occasion to consider whether a pregnant woman can be compelled to take measures designed to protect her fetus from her own self-destructive impulses. Could...