R. v. Sullivan
Encyclopedia
| R. v. Sullivan | ||||||
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 Supreme Court of Canada |
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| Argued October 30, 1990 Decided March 21, 1991 |
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| Holding | ||||||
| A fetus is not a person regarding the negligence law in the Criminal Code of Canada. | ||||||
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| Case opinions | ||||||
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R. v. Sullivan, [1991] 1 S.C.R. 489 was a decision by the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
on negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
and whether a partially born fetus
Fetus
A fetus is a developing mammal or other viviparous vertebrate after the embryonic stage and before birth.In humans, the fetal stage of prenatal development starts at the beginning of the 11th week in gestational age, which is the 9th week after fertilization.-Etymology and spelling variations:The...
is a person
Person
A person is a human being, or an entity that has certain capacities or attributes strongly associated with being human , for example in a particular moral or legal context...
.
Background
Two individuals were hired as midwives, though they were not members of the medical profession. During the childbirthChildbirth
Childbirth is the culmination of a human pregnancy or gestation period with the birth of one or more newborn infants from a woman's uterus...
, 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
British Columbia Court of Appeal
The British Columbia Court of Appeal is the highest appellate court in the province of British Columbia, Canada. The BCCA hears appeals from the Supreme Court of British Columbia and a number of boards and tribunals. The BCCA also hears criminal appeals from the Provincial Court of British...
, examining the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, 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
Women's Legal Education and Action Fund, referred to by the acronym LEAF, is a Canadian legal organization that performs legal research and intervenes in appellate and Supreme Court of Canada cases on women's issues...
and REAL Women of Canada
REAL Women of Canada
REAL Women of Canada is a socially conservative lobby 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 Canadian society, and that the fragmentation of the Canadian...
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
Women's rights are entitlements and freedoms claimed for women and girls of all ages in many societies.In some places these rights are institutionalized or supported by law, local custom, and behaviour, whereas in others they may be ignored or suppressed...
. 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 JusticeChief Justice of Canada
The Chief Justice of Canada, like the eight puisne Justices of the Supreme Court of Canada, is appointed by the Governor-in-Council . All nine are chosen from either sitting judges or barristers who have at least ten years' standing at the bar of a province or territory...
Antonio Lamer
Antonio Lamer
Joseph Antonio Charles Lamer, PC, CC, CD was a Canadian lawyer, jurist and Chief Justice of the Supreme Court of Canada.-Personal life:...
, addressed the definition of a person under the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
. 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, 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 FreedomsCanadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
, Professor Peter Hogg
Peter Hogg
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....
points partially to this case to say not. He also points to Tremblay v. Daigle
Tremblay v. Daigle
Tremblay v. Daigle [1989] 2 S.C.R. 530, was a decision of the Supreme Court of Canada in which it was found that a fetus has no legal status in Canada as a person, either in Canadian common law or in Quebec civil law...
(1989), and a lower-court decision in Borowski v. Canada (Attorney General)
Borowski v. Canada (Attorney General)
Borowski v. Canada , [1989] 1 S.C.R. 342 is the leading Supreme Court of Canada decision on mootness of an appealed legal issue. The Court declined to decide whether the fetus had a right to life under sections 7 and 15 of the Canadian Charter of Rights and Freedoms...
.