''R v Sullivan'',

991 Year 991 (Roman numerals, CMXCI) was a common year starting on Thursday of the Julian calendar. Events * March 1: In Rouen, Pope John XV ratifies the first Peace and Truce of God, Truce of God, between Æthelred the Unready and Richard I o ...

1 S.C.R. 489 was a decision by the

Supreme Court of Canada The Supreme Court of Canada (SCC; , ) is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to between 40 and 75 litigants eac ...

negligence Negligence ( Lat. ''negligentia'') is a failure to exercise appropriate care expected to be exercised in similar circumstances. Within the scope of tort law, negligence pertains to harm caused by the violation of a duty of care through a neg ...

and whether a partially born

fetus A fetus or foetus (; : fetuses, foetuses, rarely feti or foeti) is the unborn offspring of a viviparous animal that develops from an embryo. Following the embryonic development, embryonic stage, the fetal stage of development takes place. Pren ...

is a

person A person (: people or persons, depending on context) is a being who has certain capacities or attributes such as reason, morality, consciousness or self-consciousness, and being a part of a culturally established form of social relations suc ...

Background

Two individuals were hired as

midwives A midwife (: midwives) is a health professional who cares for mothers and newborns around childbirth, a specialisation known as midwifery. The education and training for a midwife concentrates extensively on the care of women throughout their ...

, though they were not members of the medical profession. During the childbirth, which took place in a home rather than a hospital, the mother's contractions stopped after the child's head appeared. The midwives tried to induce further contractions but failed, and after the mother was bruised, she was taken to a hospital, and the child was removed from her but was not alive. The midwives were charged with negligence regarding both the child and the mother. The

British Columbia Court of Appeal The British Columbia Court of Appeal (BCCA) is the highest appellate court in the Provinces and territories of Canada, province of British Columbia, Canada. It was established in 1910 following the 1907 Court of Appeal Act. Jurisdiction The ...

, examining the

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

, found that in order to be legally considered a person, one must be fully outside the mother's body and must be alive at birth. Thus, the midwives could not be guilty of negligence regarding the fetus, as negligence occurs only with respect to persons. The

Women's Legal Education and Action Fund Women's Legal Education and Action Fund, referred to by the acronym LEAF, is a women's rights organization based in Toronto, Canada. History ''Canadian Lawyer'' magazine describes LEAF as a "non-profit organization that works to advance gender eq ...

and

REAL Women of Canada REAL Women of Canada () is a socially conservative advocacy group in Canada. The organization was founded in 1983. REAL stands for "Realistic, Equal, Active, for Life". The group believes that the nuclear family is the most important unit in Can ...

became involved in the case as intervenors. LEAF argued against a fetus being recognized as a person, for purposes of

women's rights Women's rights are the rights and Entitlement (fair division), entitlements claimed for women and girls worldwide. They formed the basis for the women's rights movement in the 19th century and the feminist movements during the 20th and 21st c ...

. Meanwhile, the midwives alleged that it was REAL Women, and not the government, that primarily saw the fetus as a person and drove the issue. The majority of the Supreme Court replied the Crown pursued the issue with its own belief that if a fetus is not a component of its mother's body, it must be a person.

Decision

The majority opinion, written by Chief Justice

Antonio Lamer Joseph Antonio Charles Lamer (July 8, 1933 – November 24, 2007) was a Canadian lawyer and jurist who served as the 16th Chief Justice of Canada from 1990 to 2000. Career Lamer practised in partnership at the firm of Cutler, Lamer, Bellemare ...

, addressed the definition of a person under the

Criminal Code A criminal code or penal code is a document that compiles all, or a significant amount of, a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that might ...

. While the Criminal Code indicated a fetus is not a "human being," REAL Women replied that it is still a person, if personhood is taken to be a wider category than human beings. Lamer said that there was no proof of this interpretation. Furthermore, the negligence law, enacted in 1954, seemed to have been developed with no debate regarding the difference between a person and a human being. A person and a human being would be the same thing. With this evidence of legislative history favouring the view that the fetus is not a person, the Court declined to decide that the fetus is not a person on the sole basis of

sexual equality Gender equality, also known as sexual equality, gender egalitarianism, or equality of the sexes, is the state of equal ease of access to resources and opportunities regardless of gender, including economic participation and decision-making, an ...

, as argued by LEAF. Instead, Lamer briefly wrote that "The result reached above is consistent with the 'equality approach' taken by L.E.A.F."

Aftermath

On the question of whether a fetus is a legal person and thus has rights under the

Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part of the '' Constitution Act, 1982''. The ''Char ...

, Professor

Peter Hogg Peter Wardell Hogg (12 March 1939 – 4 February 2020) was a New Zealand–born Canadian legal scholar and lawyer. He was best known as a leading authority on Canadian constitutional law, with the most academic citations in Supreme Court jurisp ...

points partially to this case to say not. He also points to '' Tremblay v Daigle'' (1989), and a lower-court decision in '' Borowski v Canada (AG)''.Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), 743.

References

External links

* {{DEFAULTSORT:Sullivan (Canada) Supreme Court of Canada cases 1991 in Canadian case law Canadian criminal case law

Background

Decision

Aftermath

See also

Further reading

References

External links