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ABSTRACT
This paper reconsiders the Supreme Court of Canada (SCC) judgment in Dobson v. Dobson.Footnote1 Dobson addressed the issue of whether a born alive child should have a judicially recognised legal right to sue the mother in tort for damages based on her negligence in causing him/her permanent disabilities that originated in prenatal harms. The SCC in Dobson denied the child legal capacity in the aforementioned context relying primarily on purported public policy grounds framed, for the most part, in terms of a pregnant woman’s Canadian Charter rights to liberty and security of the person. A re-examination of just what Canadian Charter values and human rights are at stake in such cases and for whom is a prime focus of the current discussion and analysis. Also addressed is the problem with using the ‘born alive rule’ to contemplate either a ‘continuing tort’ (a foetal rights view) or a ‘tort perfected in law upon the live birth of the child’ perspective in considering whether tort liability should attach for the injuries suffered by the born alive child due to maternal conduct that predated the existence of the child as a legal person under Canadian law.
Disclosure statement
No potential conflict of interest was reported by the author.
Note on contributor
Dr Sonja Grover is an Associate Editor with the International Journal of Human Rights and a full professor with the Faculty of Education at Lakehead University. She also holds the rank of full professor with the Northern Ontario School of Medicine where she has contributed to facilitating case based teaching modules for small groups of medical students. Her area of research is international law with a particular emphasis on promoting the fundamental rights of children and other highly vulnerable groups. Her latest book (2017) was previously an edited special issue of the IJHR and is titled R2P: Perspectives on the Concept’s Meaning, Proper Application and Value published by Routledge. She has recently contributed a rewritten judgement (as a dissenting opinion) on the Canadian Supreme Court decision Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) 2004 SCC 4 for the book Rewriting Children’s Rights Judgments: From Academic Vision to New Practice, Hart Publishing, forthcoming in fall 2017.
Notes
1 Dobson v. Dobson [1999] 2 S.C.R. 753.
2 Dobson v. Dobson, 760, para 4.
3 Dobson v. Dobson, 795, para 72 (emphasis added).
4 J. Feinberg, ‘The Rights of Animals and Unborn Generations’, in Philosophy and Environmental Crisis, ed. William T. Blackstone (Athens GA: University of Georgia Press, 1974), 43–68, 62–3 (emphasis in original).
5 Dobson v. Dobson, 805, para 98.
6 Dobson v. Dobson, 805, para 99 and para 105 (emphasis added).
7 Dobson v. Dobson, 754 (emphasis added).
8 Dobson v. Dobson, 756 (emphasis added).
9 Dobson v. Dobson, 807–08, para 108 (citing the reasons of Cory, J. at para 31) (emphasis added).
10 The ‘morning after pill’ is legal in Canada as its mechanism operates before embryo implantation in the uterine wall and hence is not one of abortion.
11 Convention on the Rights of the Child, entered into force 2 September 1990 UN office of the High Commissioner on Human Rights, www.ohchr.org/en/professionalinterest/pages/crc.aspx (accessed 3 May, 2017) (hereafter CRC).
12 CRC (Article 1).
13 Criminal Code of Canada Criminal Code (R.S.C., 1985, c. C-46)(current to 2016-8-29)
http://laws-lois.justice.gc.ca/eng/acts/C-46/section-223.html (accessed 3 May, 2017): ‘When child becomes human being 223 (1) A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether or not
(a) it has breathed;
(b) it has an independent circulation; or
c) the navel string is severed
Killing child
(2) A person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being.’
14 It is here recognised that all human beings have inherent legal personality according to international human rights law but that they sometimes are denied that recognition by certain State regimes.
15 CRC (preamble, emphases added).
16 Duval v. Seguin [1972] 2 OR 686 at p. 701, affirmed (1973) 1 OR (2d) 482 (C.A.) (emphasis added).
17 International Covenant on Civil and Political Rights, entered into force 23 March 1976 (Article 2(3)) www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (accessed 3 May, 2017) (hereafter ICCPR).
18 Criminal Code of Canada Criminal Code (R.S.C. 1985, c. C-46) (current to 2016-8-29) http://laws-lois.justice.gc.ca/eng/acts/C-46/: ‘Woman procuring her own miscarriage 287 (2) Every female person who, being pregnant, with intent to procure her own miscarriage, uses any means or permits any means to be used for the purpose of carrying out her intention is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.’
19 Dobson v. Dobson, 808, para 109.
20 Watt v. Rama [1972] V.R. 353.
21 Dobson v. Dobson, 979, para 76 (emphasis added).
22 CRC (Article 23).
23 CRC (Article 24).
24 In fact under Canadian law there can be no ‘prenatal negligence’ as the foetus is not considered a legal entity. If the injuries to the foetus are devastating and cause a stillbirth then the injuries are to an abstraction in law (the foetus) and not a member of a foreseeable legal class (contrary to what is required to establish tort liability); namely a live born disabled child injured as a born alive child through a prenatal mechanism.
25 Dobson v. Dobson per Cory J (Majority Opinion), 767, para 20.
26 Dobson v. Dobson per Cory J (Majority Opinion), 767, para 20 (emphasis added): ‘Thus, on the basis of the assumption of separate legal identities, it is possible to proceed to the more relevant analysis for the purposes of the present appeal...’
27 What is referenced here is legal necessity in terms of legal coherence and is not a statement on whether such a duty to the unborn recognised in law is or is not advisable in light of certain considerations.
28 Dobson v. Dobson, 760, para 2.
29 Dobson v. Dobson, 798, para 80 (emphases added).
30 Dobson v. Dobson, 769, para 25 (emphases added).
31 Dobson v. Dobson, 780, para 45 (emphases added).
32 Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143, 171.
33 Universal Declaration of Human Rights proclaimed by the United Nations General Assembly in Paris on 10 December 1948, General Assembly resolution 217(III) A (Article 6) www.un.org/en/universal-declaration-human-rights/ (accessed 3 May, 2017).
34 ICCPR (Article 16).
35 Inter-American Court of Human Rights Advisory Opinion OC-17/2002, 28 August 2002, Juridical Condition and Human Rights of the Child, p. 13 (emphases added).
36 Inter-American Court of Human Rights Advisory Opinion OC-17/2002, p. 5.
37 Dobson v. Dobson, 814, para 130 (emphases added).
38 ICCPR (Article 24).
39 Dobson v. Dobson, 806, para 102.
40 Watt v. Rama [1972] VicRp 40; [1972] VR 353 (14 December 1971) (emphases added).
41 Dobson v. Dobson, 788, para 59 (emphases added).
42 Lord MacMillan in Donoghue v. Stevenson at (AC) p. 618; (All ER Rep.) p. 29 cited in Watt v. Rama at p. 12.
43 The question of whether the viable foetus injured due to a preventable act ought to have a cause of action as foetus is beyond the scope of the current paper.
44 The matter of whether ‘foetal rights’ should be recognised in Canadian law in some or all circumstances/legal contexts is beyond the scope of this paper.
45 Dobson v. Dobson, 806, para 104 (emphases added).
46 Dobson v. Dobson, 773, para 31 (emphases added).
47 Dobson v. Dobson, 806, para 103 (emphasis in original).
48 Watt v. Rama, p. 8 (emphasis added).
49 Dobson v. Dobson, 808, para 109 (emphasis added).
50 Watt v. Rama, p. 8 (emphases added).
51 Watt v. Rama, pp. 16 and 20 (emphases added).
52 Watt v. Rama, p. 21 (emphases added).
53 L. Westra, Child Law (Heidelberg: Springer, 2014).
54 Westra, Child Law.
55 Dobson v. Dobson, 753–4 (emphases added).
56 Dobson v. Dobson, 799, para 83 (emphases added).
57 Dobson v. Dobson, 795, para 73.
58 CRC (Article 3(1)) (emphases added).
59 The CRC was ratified by Canada in 1991 but is not part of Canadian constitutional law. The Canadian Courts are not bound by its provisions though they sometimes take guidance from the Convention in interpreting the proper scope of Canadian Charter rights and freedoms in respect of children (persons under 18).
60 Winnipeg Child and Family Services v. G(D.F.) [1997] 3 S.C.R.
61 Tremblay v. Daigle [1989] 2 S.C.R. 530.
62 Winnipeg Child and Family Services v. G(D.F.).
63 Winnipeg Child and Family Services v. G(D.F.), 927 (emphases added).
64 Tremblay v. Daigle [1989] 2 S.C.R. 530.
65 Winnipeg Child and Family Services v. G(D.F.).
66 Winnipeg Child and Family Services v. G(D.F.).
67 Tremblay v. Daigle [1989] 2 S.C.R. 530.
68 Dobson v. Dobson, 805, para 100.
69 Winnipeg Child and Family Services v. G(D.F.).
70 Tremblay v. Daigle [1989] 2 S.C.R. 530.
71 Dobson v. Dobson, 768, para 23 (emphases added).
72 Dobson v. Dobson, 768, para 22 (emphases added).
73 Analogous Grounds: University of Alberta Centre for Constitutional Studies, http://ualawccsprod.srv.ualberta.ca/ccs/index.php/constitutional-keywords/490-analogous-grounds (accessed 3 May, 2017) (emphasis added).
74 Brooks v. Canada Safeway Ltd. [1989] 1 S.C.R 1219.
75 Brooks v. Canada Safeway Ltd., 1221.
76 See Westra, Child Law.
77 Dobson v. Dobson, 756.
78 K. Savell, ‘The Legal Significance of Birth’, UNSW Law Journal 29, no. 2 (2006): 200–206, 204 (emphasis added).