This case concerned the constitutionality of provisions under the Criminal Code relating to abortion, and whether fetuses had rights under the Charter

LEAF intervened before the Supreme Court of Canada. 

Facts 

Joseph Borowski, an anti-choice activist in Saskatchewan, was granted public interest standing to file a constitutional challenge against the Criminal Code’s abortion provisions. He argued that the provisions violated fetuses’ ss. 7 and 15 Charter rights.  

The Saskatchewan Court of Queen’s Bench and the Saskatchewan Court of Appeal both held that fetuses did not have rights under ss. 7 and 15. By the time the case had made it to the Supreme Court of Canada, the abortion provisions in question had been struck down in R. v. Morgentaler. As a result, the primary issues before the Supreme Court were whether the appeal was moot and whether Mr. Borowski still had standing.   

LEAF’s arguments 

LEAF argued that Mr. Borowski no longer had standing to bring the case. 

LEAF also argued that, if Mr. Borowski did still have standing, fetuses did not have rights under ss. 7 and 15 of the Charter. To declare that the fetus had rights would significantly risk jeopardizing the rights of women. The social context of sex inequality had denied women control over the reproductive use of their bodies. Protecting their reproductive and other related rights was a response to that historic and ongoing disadvantage. 

Outcome 

The Court held that the appeal was moot, and that Mr. Borowski no longer had standing to pursue the appeal. It declined to hear the appeal. 

LEAF is grateful to Mary Eberts, counsel in this case. 

Download the factum here.

Read the Supreme Court of Canada’s decision here.