






Citation:


R. v. Demers


Date: 20030117







2002 
          BCCA 28


Docket:


CA026297




COURT 
          OF APPEAL FOR BRITISH COLUMBIA




BETWEEN:




REGINA




RESPONDENT




AND:




JAMES ROGER DEMERS




APPELLANT










Before:


The 
          Honourable Madam Justice Newbury







The 
          Honourable Madam Justice Huddart







The 
          Honourable Mr. Justice Low










J.C. 
          Tuomala


Agent 
          for the Appellant




R. 
          Cutler, L. Mrozinski


Counsel 
          for the Respondent




N. 
          Iyer, A. Zwack, K. Bayne


Counsel 
          for the Intervenor




Place 
          and Dates of Hearing:


Vancouver, 
          British Columbia




December 
          10 and 11, 2002




Place 
          and Date of Judgment:


Vancouver, 
          British Columbia




January 17, 2003








Written 
    Reasons by:

The 
    Honourable Mr. Justice Low



Concurred 
    in by:

The 
    Honourable Madam Justice Newbury

The 
    Honourable Madam Justice Huddart


Reasons for Judgment of the Honourable 
    Mr. Justice Low:






[1]

This is an appeal of an order of Hood J. dismissing a summary conviction 
    appeal from convictions of the appellant, James Demers, by McGivern P.C.J. 
    of the following offences created by s. 2(1) of the
Access to Abortion Services Act
, R.S.B.C. 1996, c. 1:

Count 
    1

JAMES 
    ROGER DEMERS, between the 5
th
day of December, 1996, and the 12
th
day of December, 1996, at or near the City of Vancouver, in the Province of 
    British Columbia, did, while in an access zone, protest, contrary to Section 
    2(1)(b) and 14(2) of the Access to Abortion Services Act.



Count 
    2

JAMES 
    ROGER DEMERS, between the 5
th
day of December, 1996, and the 12
th
day of December, 1996, at or near the City of Vancouver, in the Province of 
    British Columbia, did, while in an access zone, beset a building in which 
    abortion services are provided, contrary to Section 2(1)(c) and Section 14(2) 
    of the Access to Abortion Services Act.



Count 
    3

JAMES 
    ROGER DEMERS, between the 5
th
day of December, 1996, and the 12
th
day of December, 1996, at or near the City of Vancouver, in the Province of 
    British Columbia, did, while in an access zone, engage in sidewalk interference, 
    contrary to Section 2(1)(a) and Section 14(2) of the Access to Abortion Services 
    Act.





On 
    the hearing of this appeal, we granted leave for Professor J. Tuomala to make 
    submissions as agent for Mr. Demers.  Professor Tuomala teaches law at the 
    Thomas Goode Jones Law School at Faulkner University in Montgomery, Alabama, 
    U.S.A. and is licenced to practice law in the State of Ohio.

[2]

Mr. Demers does not dispute that he committed the prohibited acts alleged 
    in the charges.  He says that the statute, particularly s. 2(1), infringes 
    his right of free expression under s. 2(b) of the
Canadian 
    Charter of Rights and Freedoms
.  The Crown agrees that s. 2(1) of the 
    statute infringes the right of free expression of Mr. Demers and others, but 
    says that the section is saved by s. 1 of the
Charter
.  The case comes down to a s. 1 analysis but, as 
    argued on behalf of Mr. Demers, includes consideration of s. 7 of the
Charter
as an essential part of that analysis.

[3]

Section 2(1) of the
Access to Abortion Services 
    Act
reads:

2(1) 
    While in an access zone, a person must not do any of the following:



(a)  
    engage in sidewalk interference;



(b)  
    protest;



(c)  
    beset;



(d)  
    physically interfere with or attempt to interfere with a service provider, 
    a doctor who provides abortion services or a patient;



(e)  
    intimidate or attempt to intimidate a service provider, a doctor who provides 
    abortion services or a patient.





[4]

Sections 2(b), 7 and 1 of the
Charter
read:

2.   
    Everyone has the following fundamental freedoms:



...



(b)
freedom of thought, belief, opinion and expression, including the 
    freedom of the press and other media of communication;



...



7.   
    Everyone has the right to life, liberty and security of the person and the 
    right not to be deprived thereof except in accordance with the principles 
    of fundamental justice.



...



1.   
    The
Canadian Charter of Rights and Freedoms
guarantees 
    the rights and freedoms set out in it subject only to such reasonable limits 
    prescribed by law as can be demonstrably justified in a free and democratic 
    society.





[5]

Mr. Demers contends that a foetus in the womb of a woman is included 
    in the word everyone in s. 7 of the
Charter
, 
    that his protest conduct was for the purpose of protecting the right to life 
    of foetuses, and that this purpose renders the impugned legislation unconstitutional 
    on a s. 1 balancing analysis.

[6]

Mr. Demers holds sincere and strong views against abortion.  He wants 
    the law of this country changed to reflect those views.  To that end, and 
    to attempt to save the lives of unborn children whose mothers attend at abortion 
    clinics, he wishes to be able to verbally express his views outside such clinics 
    without restrictions.  There is no doubt that the statute imposes restrictions 
    that can be justified only under s. 1 of the
Charter
.

[7]

Since the decision of the Supreme Court of Canada in
Morgentaler 
    v. The Queen
, [1988] 1 S.C.R. 30 abortion has been legal in Canada.  
    Women now have the right to abortion as a medical service.  In British Columbia, 
    there has been extensive anti-abortion protest outside abortion clinics, particularly 
    outside Everywomans Health Centre in Vancouver.  Tactics employed by abortion 
    protesters eventually moved the Provincial Legislature to pass the statute.  
    The statute is an attempt to ensure safe access by women to clinics so they 
    can obtain therein the medical service to which they are entitled by law, 
    should they choose so to do.  Within prescribed boundaries, the statute makes 
    it unlawful for the conduct set out in s. 2(1) to take place.  Section 14(2) 
    makes it an offence to contravene s. 2(1).

[8]

Other than a transcript of brief oral evidence given by Mr. Demers, 
    the trial record in Provincial Court consists entirely of an admission of 
    facts.  This was because of an earlier case in which Maurice Lewis had been 
    convicted of offences under the statute similar to those faced by Mr. Demers.  
    For the purposes of defining and addressing the
Charter
issues, the facts between the Lewis case and the Demers case are indistinguishable.

[9]

Cronin P.C.J. dismissed the charges against Mr. Lewis on the basis 
    that the infringement by the statute of Mr. Lewis s. 2(b)
Charter
rights was not justified under s. 1.  On a summary 
    conviction appeal brought by the Crown, Saunders J. (as she then was) overturned 
    the Provincial Court decision: (1996), 24 B.C.L.R. (3d) 247.  She found that 
    the infringement of the s. 2(b) rights of Mr. Lewis was saved by s. 1.  She 
    allowed the appeal and recorded convictions against Mr. Lewis.  Following 
    this decision, Mr. Lewis died and this court, on the basis that the matter 
    was moot, refused to hear an appeal of the order of Saunders J.

[10]

Mr. 
    Lewis argued that the statute infringed his rights under
Charter
sections 2(a), 2(b) and 2(d).  He did not seriously 
    base his
Charter
challenge on foetal rights under 
    s. 7.

[11]

Mr. 
    Demers based his defence at trial and on the summary conviction appeal on 
    s. 2(b), s. 7 and s. 15(1) of the
Charter
.  He 
    does not pursue the s. 15(1) argument in this court.  It seems that it was 
    common ground that both McGivern P.C.J. and Hood J. were bound to follow the 
    decision in the
Lewis
case on the s. 2(b)
Charter
issue as framed in that case.  Because of that decision, neither party called 
    evidence in Provincial Court on the s. 1 analysis.  However, with the consent 
    of both parties, Levine J. (as she then was) made an order on the summary 
    conviction appeal, before the appeal was argued, appending the record in the
Lewis
case to the record in the Demers case.  If Mr. Lewis had not 
    died, this court would have considered that record and would have decided 
    the s. 2(b) issue, although on a different basis than now argued on behalf 
    of Mr. Demers.

[12]

In 
    the present appeal, the Crown relies on the evidence contained in the
Lewis
record to sustain its argument, apart from the s. 7 consideration, that s. 
    2(1) of the statute is saved by s. 1 of the
Charter
.  
    Mr. Demers made no argument in his factum about the justification evidence 
    in the
Lewis
case.  In his factum and in the oral hearing, he argued 
    that this court cannot address his s. 2(b)
Charter
rights without first deciding the s. 7 foetal-rights issue.  However, in response 
    to a question from the court, Professor Tuomala made a brief submission concerning 
    the effect of the
Lewis
evidence on the s. 1 issue should this court 
    reject the s. 7 argument.  I will discuss that submission later in these reasons.

[13]

As 
    is already apparent, Mr. Demers casts his argument  somewhat differently than 
    did Mr. Lewis.  Rather than confining his argument to either s. 7 (the right 
    of the foetus to life) or to s. 2(b) (his own right to freedom of expression), 
    he makes the s. 2(b) argument dependant on the s. 7 argument.  He says that 
    because the foetus has a right to life under s. 7, s. 2(1) of the
Access 
    to Abortion Services Act
cannot survive the s. 1 analysis that follows 
    the Crown concession that the statute infringes his
Charter
right to freedom of expression.  He says that the court must declare that 
    a foetus has the right to life under s 7, rule s. 2(1) of the statute to be 
    unconstitutional as a result, and acquit him of the charges.  The ruling he 
    wants on s. 7 would have the effect of declaring abortion constitutionally 
    unlawful.

[14]

The 
    intervenor argues that any discussion of the constitutionality of the
Access 
    to Abortion Services Act
does not engage s. 7 of the
Charter

because the statute is concerned 
    only with regulating protest and not with any foetal rights that might exist 
    in law
.  Both Mr. Demers and the Crown argue to the contrary 
    and I agree with them.  There are many cases in which litigants attack the 
    constitutional validity of statutory provisions on the basis that the provisions 
    affect the
Charter
rights of third parties.  For 
    example, in
Morgentaler
, supra, the abortion-clinic doctors 
    successfully raised the s. 7 rights of the pregnant mother, not their own
Charter
rights.  Similarly, in
R v. Big M Drug Mart Ltd.
,
[1985] 1 S.C.R. 295
, 
    the corporate retailer successfully argued that the
Lords 
    Day (
Alberta) Act
was 
    unconstitutional because it infringed
Charter
rights to freedom of conscience and religion.  The court held that nobody 
    could be convicted under an unconstitutional law.   In my opinion, it is open 
    to Mr. Demers to argue that the statute unduly restricts his freedom of expression 
    because, as he contends, the purpose of his public speech is to protect the 
    rights of those who cannot protect themselves.  This is particularly so when 
    it is said that the right to life is involved.  The statute is directly related 
    to the abortion issue and that is sufficient to engage s. 7 on the basis argued 
    by Mr. Demers.

[15]

On 
    behalf of Mr. Demers, Professor Tuomala bases the s. 7 argument on divine 
    law.  He says that Gods law dictates that the human foetus is a person with 
    a right to life confirmed by s. 7 of the
Charter
.  
    It is implicit in this argument that the god referred to is the Christian 
    god.  In support of his argument, he refers to the preamble to the
Charter
: Whereas Canada is founded upon principles that 
    recognize the supremacy of God and the rule of law.  He says that this means 
    that certain inherent or inalienable rights, including foetal rights, 
    are a gift of God, not a state creation.  That, he says, cannot be changed 
    by secular law, whether common law or statutory law.

[16]

Professor 
    Tuomala drew our attention to specific foreign and international law that 
    he says supports his basic argument.  It is apparent to me, however, that 
    the foreign laws referred to do not give the human foetus the constitutional 
    or juridical status of a person.  Also, none of the international conventions 
    and declarations referred to go nearly that far.  Indeed, the laws and conventions 
    cited avoid stating the basic premise asserted on this appeal.  I see no need 
    to discuss this aspect of the argument further.

[17]

The 
    current law of this country supports the position of the Crown (and the conclusion 
    reached by McGivern P.C.J. and Hood J.) that a foetus is not included in the 
    word everyone in s. 7 of the
Charter
.  The appellants argument 
    ignores the decisions in
Borowski v. Attorney General for Canada

(1987), 39 D.L.R. (4th) 731 (Sask. C.A.);

Winnipeg Child and Family 
    Services v. D.F.G.
, [1997] 3 S.C.R. 925 and

Tremblay v. Daigle
, 
    [1989] 2 S.C.R. 530.

[18]

The 
    Saskatchewan Court of Appeal addressed the issue directly in
Borowski
,
supra
.  Mr. Borowski challenged the abortion law then in the
Criminal Code of Canada
on the basis that it permitted limited 
    abortions thereby infringing on the
Charter
s. 
    7 right of a foetus to life.  The court discussed the common law and foreign 
    jurisprudence.  It concluded that a foetus is not a person in law and is not 
    included in the
Charter
terms everyone in s. 
    7 or every individual in s. 15.  Against the common law background in which 
    abortion has been lawful to some extent, according the foetus status as a 
    person would be a major departure from legal tradition.  To interpret the
Charter
in that manner would require clear and unambiguous 
    language within the
Charter
itself and no such 
    language is to be found in the
Charter
.  Further, 
    the use of the term everyone in other sections of the
Charter
(such as sections 8, 9 and 10) that clearly could 
    not apply to the foetus, illustrates that the use of the term in s. 7 does 
    not include the foetus.

[19]

Because 
    the decision in
Morgentaler
,
supra
, for reasons diametrically 
    opposed to Mr. Borowskis contention, struck down the law Mr. Borowski challenged, 
    the Supreme Court of Canada decided that the
Borowski
appeal was moot and that he no longer had status 
    to argue the point:
Borowski v. Canada (Attorney General)
,
[1989] 
    1 S.C.R. 342.  The Supreme Court of Canada has not directly addressed the 
    s. 7 issue argued by Mr. Borowski or by Mr. Demers in the present case.

[20]

However, 
    the Supreme Court has dealt with issues of foetal rights and status in other 
    areas of the law.  In
Tremblay v. Daigle
,
supra
, the 
    court considered the legal status of the foetus in the context of the
Quebec Charter of Human Rights and Freedoms
.  The father 
    of an unborn child obtained an interlocutory injunction preventing the mother 
    from having an abortion.  The Quebec Court of Appeal upheld the order.  The 
    Supreme Court held that the term human being in the
Quebec

Charter
did not include a foetus.  Similar to 
    the statement of the law in
Borowski
, under Anglo-Canadian law 
    a foetus must be born alive to have rights.  Under the
Quebec 
    Civil Code
, the foetus is treated as a person only as a legal fiction 
    where it is necessary to do so to protect its interests after birth.  The
Canadian Charter
did not have to be considered because the 
    case was a civil dispute between private parties and neither party was challenging 
    a statute on constitutional grounds.

[21]

In 
    the more recent case of
Winnipeg Child & Family Services
,
supra
, a child-welfare agency obtained an order placing in hospital 
    custody a pregnant mother with a history of glue-sniffing that had caused 
    permanent injury to three other children to whom she had given birth.  The 
    Manitoba Court of Appeal set aside the order.  The Supreme Court dismissed 
    a further appeal.  The case turned on the juridical status of the foetus.  
    In that regard, McLachlin J. (as she then was) said the following:

11   
    Before dealing with the cases treating the issue in tort law, I turn to the 
    general proposition that the law of Canada does not recognize the unborn child 
    as a legal or juridical person. Once a child is born, alive and viable, the 
    law may recognize that its existence began before birth for certain limited 
    purposes. But the only right recognized is that of the born person.
This 
    is a general proposition, applicable to all aspects of the law,
including 
    the law of torts.



...



15   
    The position is clear. Neither the common law nor the civil law of Quebec 
    recognizes the unborn child as a legal person possessing rights. This principle 
    applies generally, whether the case falls under the rubric of family law, 
    succession law or tort. Any right or interest the fetus may have remains inchoate 
    and incomplete until the birth of the child.



16   
    It follows that under the law as it presently stands, the fetus on whose behalf 
    the agency purported to act in seeking the order for the respondents detention 
    was not a legal person and possessed no legal rights. If it was not a legal 
    person and possessed no legal rights at the time of the application, then 
    there was no legal person in whose interests the agency could act or in whose 
    interests a court order could be made.

[my 
    emphasis]

[22]

The 
    phrase all aspects of the law in para. 11 must include
Charter
law.

[23]

These 
    cases leave no room for this court to entertain the constitutional argument 
    advanced on behalf of Mr. Demers.  The courts have made it clear that any 
    preference of foetal rights over the rights of pregnant women as addressed 
    in
Morgentaler
,
supra, is a matter best left to the careful 
    consideration of the legislators.  In this regard, McLachlin J. in
Winnipeg 
    Child & Family Services,
supra,
made the following comments:

20   
    The proposed changes to the law of tort are major, affecting the rights and 
    remedies available in many other areas of tort law. They involve moral choices 
    and would create conflicts between fundamental interests and rights. They 
    would have an immediate and drastic impact on the lives of women as well as 
    men who might find themselves incarcerated and treated against their will 
    for conduct alleged to harm others. And, they posses complex ramifications 
    impossible for this Court to fully assess, giving rise to the danger that 
    the proposed order might impede the goal of healthy infants more than it would 
    promote it. In short, these are not the sort of changes which common law courts 
    can or should make. These are the sort of changes which should be left to 
    the legislature.





[24]

These 
    comments echo what the court said in
Tremblay v. Daigle
,
supra
at p. 553:





The 
    task of properly classifying a foetus in law and in science are different 
    pursuits. Ascribing personhood to a foetus in law is a fundamentally normative 
    task. It results in the recognition of rights and duties -a matter which 
    falls outside the concerns of scientific classification. In short, this Courts 
    task is a legal one. Decisions based upon broad social, political, moral and 
    economic choices are more appropriately left to the legislature.





[25]

As 
    noted above, we asked Professor Tuomala to state the appellants position 
    on the s. 1 analysis in the
Lewis
case should we not accept his submission 
    concerning foetal rights under s. 7.  After consideration, the only argument 
    he advanced was that Saunders J. in
Lewis
should have deferred to the 
    findings of fact made at trial by Cronin P.C.J. and upheld his decision.

[26]

I 
    find no merit in this submission.  The trial judge in
Lewis
did not 
    make any findings of fact with respect to the evidence presented by the Crown 
    to support its position under s. 1.  After reviewing some of the evidence 
    presented as to the history of abortion protest locally, he merely stated 
    that (t)he Crown has not proven on the balance of probability that the impugned 
    Section of the Act meets the proportionality test.  Saunders J. did a thorough 
    analysis of the evidence and the balancing arguments presented by both parties.  
    An appeal court is in just as good a position as the trial court to do this 
    analysis.  This is not an area in which ordinary deference with respect to 
    findings of fact is required: see
RJR-MacDonald Inc. 
    v. Attorney General of Canada
, [1995] 3 S.C.R. 199, at p. 285 to 287 
    and at p. 333 to 335.

[27]

Because 
    the appellant made no further submission with respect to the correctness of 
    the s. 1 analysis in
Lewis
, I do not propose to comment further 
    on the reasoning in that case.  We are not asked to overturn that case except 
    on the narrow basis I have discussed and rejected above.  The appellant has 
    otherwise framed his argument in such a way that does not permit us to interfere 
    with the order appealed from.

[28]

I 
    would dismiss the appeal.





The 
    Honourable Mr. Justice Low





I AGREE:





The Honourable Madam 
    Justice Newbury







I AGREE:





The Honourable Madam 
    Justice Huddart


