This case concerned the status and rights of a partially born fetus under the Criminal Code’s criminal negligence provisions.  

LEAF intervened before the Supreme Court of Canada 

Facts 

Mary Sullivan and Gloria Lemay, both midwives but with no medical training, went to the home of a pregnant mother to assist with the birthing process. The fetus they were attempting to deliver died while in the birth canal. After a trial, they were convicted of criminal negligence causing death of the fetus, but acquitted of criminal negligence causing bodily harm to the mother.  

Ms. Sullivan and Ms. Lemay appealed to the British Columbia Court of Appeal. The Court set aside their conviction for criminal negligence causing death, but convicted them of criminal negligence causing bodily harm. The two appealed to the Supreme Court of Canada. 

LEAF’s arguments 

LEAF argued that the interpretation of the Criminal Code’s criminal negligence provisions needed to be guided by the Charter’s sex equality guarantees, and taking into account the pregnant woman’s experience. LEAF argued that fetuses were not “persons” under the criminal negligence provisions of the Criminal Code. Instead, until they fully emerged in a living state from the mother’s body, fetuses were in and of the pregnant woman. As a result, the death of the pregnant woman’s full-term fetus meant that she suffered bodily harm. 

Outcome 

The Supreme Court of Canada held that a fetus was not a “person” under the criminal negligence provisions of the Criminal Code. As a result, it upheld the two women’s acquittals on the charge of criminal negligence causing death. 

A majority of the Court also held that, because the Crown had not appealed the original acquittal on criminal negligence causing bodily harm to the mother, the Court of Appeal should not have entered a conviction on that charge. As a result, the Court acquitted the midwives of that charge as well. 

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

Download LEAF’s factum here

Read the Supreme Court of Canada’s decision here

Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].