Borowski v. Canada (Attorney General)

Joe Borowski, an anti-choice activist, attacked the validity of sections 251(4), (5) and (6) of the Criminal Code (“CC”) relating to abortion on the ground that they contravened the life and security and the equality rights of the foetus, as a person, protected by sections 7 and 15 of the Canadian Charter of Rights and Freedoms (“Charter”). The Court of Queen’s Bench found sections 251(4), (5) and (6) of the CC did not violate the Charter as a foetus was not protected by either s. 7 or s. 15 of the Charter.  The Court of Appeal concluded that neither s. 7 nor s. 15 of the Charter applied to a foetus.

LEAF intervened and its arguments included that: “the focus of rights concerns during pregnancy must be on the woman. A pregnant woman is a live, independent and autonomous person who is unquestionably intended and entitled to benefit from the Charter’s guarantees of constitutionally entrenched rights and freedoms. The legal rights of a woman, who is a person, cannot be sacrificed to a foetus which may or may not become a person.”

Please find LEAF’s Factum here.

The appeal was dismissed because it was moot. Section 251 of the CC had already been struck down subsequent to the Court of Appeal’s decision (but before this appeal reached the Supreme Court of Canada) as a result of the Supreme Court of Canada’s decision in R. v. Morgentaler (No. 2), [1988] 1 S.C.R. 30.

Please find the Supreme Court of Canada’s decision here.