CASE COMMENTS
CHRONIQUE DE JURISPRUDENCE
R. v. Sullivan and Lemay: A Case Comment
Martha Shaffer*
Introduction
The decision of the Supreme Court of Canada in R. v. Sullivan and Lemay’
adds yet another case to the mounting number of decisions stating that a foetus
is not a person in Canadian law. Two British Columbia midwives, Mary Sulli-
van and Gloria Lemay, were charged with criminal negligence causing bodily
harm and criminal negligence causing death to a person, following the death of
a foetus during a birth they were attending. Aside from the question of whether
the midwives were criminally negligent in the care they provided at the birth,
the main legal issue which arose in the case was the status of the foetus in the
criminal law. More specifically, the central question was whether criminal neg-
ligence leading to the death of a foetus should be characterized as negligence
causing bodily harm to the pregnant woman, or as negligence causing the death
of a distinct human being.
The decision in Sullivan and Lemay is significant in two respects. First, it
constitutes another unequivocal statement by the Supreme Court of Canada that
a foetus is not a person in Canadian law. On this point, the decision is significant
because of what it does not do –
it does not discuss the issue of the status of
the foetus under the Criminal Code2 at any length. The brevity of the Court’s
analysis of this issue3 demonstrates that the Court believes it has already deter-
mined that the foetus is not a legal person,4 and that there is no longer any room
for argument on this point. Second, the Court shows an openness to considering
the equality analysis put forward by the Women’s Legal Education and Action
Fund (L.E.A.F.),5 who intervened in the case. L.E.A.F. proposed a vision of
*Assistant Professor, Faculty of Law, University of Toronto.
McGill Law Journal 1991
Revue de droit de McGill
1(1991), 63 C.C.C. (3d) 97, 3 C.R. (4th) 277 [hereinafter Sullivan and Lemay cited to C.C.C.].
2R.S.C. 1970, c. C-34 (now R.S.C. 1985, c. C-46) [hereinafter Criminal Code].
3Supra, note 1 at 105-107, Lamer C.J.
4See infra, notes 23 & 29-33 and accompanying text.
5Supra, note 1 at 107.
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pregnancy that is more consistent with women’s experiences than the way preg-
nancy is typically depicted in law.6 After briefly reviewing the procedural his-
tory of the Sullivan and Lemay case, I will return to discuss each of these points
in greater detail.
I. Procedural History
A. The Facts
Mary Sullivan and Gloria Lemay were hired by Jewel Voth to assist in the
birth of her first child. Ms. Voth had initially intended to have a hospital birth,
under the care of her family physician, Dr. Morell. During the course of her
pregnancy, however, Ms. Voth had become increasingly disenchanted with the
hospital at which Dr. Morell had hospital privileges, and with Dr. Morell him-
self. Ms. Voth continued to see Dr. Morell regularly for pre-natal care, but
decided to seek out private pre-natal classes. In March 1985, she contacted
Mary Sullivan, who agreed to provide the classes and to act as a coach during
her labour. At their first meeting, Ms. Sullivan showed Ms. Voth pictures of both
hospital and home births. At a subsequent meeting, she offered to assist Ms.
Voth to find a new physician with hospital privileges at a different hospital from
that of Dr. Morell. Ms. Voth refused the offer, and began instead to plan a home
birth with the assistance of Ms. Sullivan. Ms. Sullivan agreed to attend the birth,
but stated that she would require the back up assistance of Gloria Lemay. Nei-
ther Ms. Sullivan nor Ms. Lemay had any formal training in midwifery,
although they did have some experience with home births.
At about 11:00 p.m., on the evening of May 7, 1985, Ms. Voth went into
labour. From that point on, she kept in contact with Ms. Sullivan by telephone
until Ms. Sullivan arrived at the Voth home at approximately 5:30 a.m. the next
morning. Ms. Sullivan examined Ms. Voth, and found that by approximately
6:00 a.m. Ms. Voth’s cervix was 70 to 80 percent dilated. Ms. Sullivan made
two phone calls to Ms. Lemay, who arrived at the Voth home at 7:00 a.m. At
the time she telephoned Ms. Lemay, Ms. Sullivan believed that the baby would
be born within two to three hours, or before 10:00 a.m.
Although there was conflicting evidence on this point, the trial judge found
that Ms. Voth entered into second stage labour at approximately 9:00 a.m. Five
hours later, at approximately 2.00 p.m., the head of the foetus emerged. The foe-
tus was alive at this point. The birth did not proceed further, however, as Ms.
Voth’s contractions had ceased. For twenty minutes the midwives attempted to
remove the foetus, first by endeavouring to stimulate further contractions, and
6Factum of the Intervener Women’s Legal Education and Action Fund (L.E.A.F.). For further
discussion of this point, see infra, note 22 and accompanying text.
1991]
CASE COMMENTS
1371
subsequently by attempting to rotate the foetus’ shoulders.7 All efforts having
proved futile, the midwives called emergency health services. Under the instruc-
tions of Ms. Lemay, the emergency attendants applied pressure to Ms. Voth’s
uterus, again to no avail. By all accounts the pressure applied to Ms. Voth was
extreme. One of the ambulance attendants, described by the trial judge as a
“power lifter,”8 indicated that he was pushing as hard as he could. After
attempting for ten minutes to induce further contractions, the attendants trans-
ported Ms. Voth to the hospital. Upon her arrival, an intern, Dr. Matthews, deliv-
ered the foetus within two minutes using a “basic delivery technique.”9 The
child exhibited no signs of life, and could not be revived after half an hour of
attempted resuscitation. Ms. Voth exhibited signs of extreme exhaustion –
sunken eyes, a fever, and dry mucous membranes –
venous equipment.
and was placed on intra-
As a result of the death of the foetus, the midwives were charged with
criminal negligence causing death to a person contrary to s. 203 of the Criminal
Code (now s. 220), and criminal negligence causing bodily harm contrary to s.
204 (now s. 221) of the Criminal Code. The midwives were charged with both
offenses because of uncertainty as to whether a foetus at the stage of birth was
to be viewed as a person (in which case the midwives could be convicted under
s. 203 of the Criminal Code if they had caused its death) or as a part of the preg-
nant woman (in which case the midwives could only be convicted of causing
bodily harm to Ms. Voth).
B. The Decision at Trial
1.
The issue of the death of the foetus
The midwives were convicted at trial before the County Court of Vancou-
ver of criminal negligence causing the death of the foetus, but were acquitted
on the charge of criminal negligence causing bodily harm to Ms. Voth.’ God-
frey L.J.S.C. first considered the standard of care to which the midwives should
be held in determining whether their conduct amounted to criminal negligence.
She held that the midwives should be held to the standard of a competent child-
birth attendant, which she defined as a person “skilled in obstetrics whether
midwife or doctor.”” The trial judge rejected the submission of the midwives
7As in standard births, the foetus’ head emerged in a face downward position. Had the labour
continued, the next contraction would have rotated the foetus 90 degrees into a position in which
its shoulders could have proceeded to be born. This was a finding of fact at trial: see R. v. Sullivan
and Lemnay (1986), 31 C.C.C. (3d) 62 at 66, 55 C.R. (3d) 48 [hereinafter Sullivan and Lemay
(B.C.S.C.) cited to C.C.C.].
81bid. at 75.
91bid. at 66.
‘0Ibid. at 74.
“Ibid. at 68.
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that because they had no formal training, they should be held to a lower
standard.
Next, Godfrey L.J.S.C. considered whether the actions of the midwives
caused the death of the foetus. The trial judge was of the view that the midwives
were to be held responsible for the death for two reasons. First, she held that the
foetus would have been born alive had the midwives taken Ms. Voth to the hos-
pital at least one hour before the labour stopped. She reached this conclusion
based on medical evidence presented concerning the recommended maximum
duration of a second stage labour.2 According to that evidence, she found that
the accepted traditional medical practice is that women not remain in second
stage labour longer than two hours. 3 The reason for this limitation is that after
two hours of second stage labour, the pregnant woman is likely to be physically
exhausted and continued labour becomes risky. Some midwives also accept two
hours as the appropriate limit for second stage labour. 4 Although this limit is
being extended in hospital births, 5 the evidence presented at trial indicated that
the maximum duration of second stage labour in a home birth should be three
hours. Ms. Voth had been in second stage labour for five hours and was showing
clear signs of exhaustion by the time the midwives called the hospital. The trial
judge found that the midwives were negligent in failing to recognize the symp-
toms of exhaustion, and in allowing the second stage of labour to continue to
the point where Ms. Voth became so exhausted her uterus stopped contracting. 6
Second, Godfrey L.J.S.C. found that the foetus would have lived if the
midwives had utilized the basic delivery technique that was ultimately used at
the hospital, once the foetus’ head emerged. The trial judge was satisfied that
either the midwives did not use the “traction” technique, or they used it ineffect-
ively. 7 Instead, the midwives used a number of ineffectual methods including
requiring Ms. Voth to alter her position in an attempt to stimulate contractions,
and applying pressure to Ms. Voth’s uterus. The failure of the midwives to use
the traction method was particularly troubling since timing is crucial once a foe-
tus’ head emerges. As Godfrey L.J.S.C. noted, all experts who appeared at the
trial agreed that once a foetus’ head has been born there is at most five minutes
in which to complete the birth before the foetus asphyxiates. 8 Instead of com-
12Second-stage labour “commences when the cervix is 100% dilated and the uterus is then able
to expel the child”: ibid. at 65.
31bid. at 69.
‘4Filippa Lutenberg, a Dutch midwife who had been responsible for or attended over 6,000
births, testified at trial that she abided by the two hour limit.
IsThe reason cited by the trial judge is that women labouring under the influence of an epidural
anaesthetic are less prone to exhaustion and can therefore continue in second stage labour for a
longer period of time. Sullivan and Lemay (B.C.S.C.), supra, note 7 at 69.
‘ 6 bid. at 73.
171bid. at 72.
‘ 8lbid. at 66.
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CHRONIQUE DE JURISPRUDENCE
1373
pleting the delivery quickly, the midwives spent twenty minutes employing
futile techniques before deciding to call the emergency health services. Another
ten minutes elapsed before the midwives agreed to allow the attendants to trans-
port Ms. Voth to the hospital. In all, over half an hour elapsed between the time
the foetus’ head emerged and the time the foetus was delivered at the hospital.
An effective use of the traction delivery technique would have taken approxi-
mately two minutes. Godfrey L.J.S.C. held that the midwives were negligent in
wasting precious time employing ineffective delivery methods and in failing to
utilize a basic delivery technique.19
Finally, Godfrey L.J.S.C. turned to a consideration of whether the foetus
was a person for the purposes of the Criminal Code, and thus whether the mid-
wives could be convicted of criminal negligence causing the death of a person.
The trial judge noted that s. 206 (now s. 223) of the Criminal Code defines
“human being” for the purposes of the Criminal Code. That section provides:
206(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.
(2) a person commits homicide when he causes injury to a child before or dur-
ing its birth as a result of which the child dies after becoming a human being. 20
Godfrey L.J.S.C. did not find this definition conclusive of the question, how-
ever, since s. 203 of the Criminal Code (now s. 220) refers to “criminal negli-
gence causing death to another person’ 2 and does not use the term “human
being.” The issue, as she saw it, was whether the word “person” as employed
in s. 203 was to be construed as having a wider meaning than the definition of
human being in s. 206. The trial judge concluded that “person” was a broader
term, and that a foetus in the process of being born was a person within the
meaning of s. 203 even if it would not fall within the narrower definition in s.
206. She relied on the decision of the British Columbia County Court in R. v.
Marsh,22 which had reached the same result. Based on her conclusion that a foe-
tus was a person, Godfrey L.J.S.C. convicted the midwives of criminal negli-
gence causing the death of a person.
2.
The issue of bodily harm to the mother
The midwives were acquitted at trial of the charge of criminal negligence
causing bodily harm to Ms. Voth. Godfrey L.J.S.C. reasoned that the midwives
191bid. at 73.
20Crininal Code, supra, note 2.
217bid.
22(1979), 2 C.C.C. (3d) 1, 31 C.R. (3d) 363.
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could be found guilty of this charge in two ways: first, if they had caused Ms.
Voth harm independent of the harm to the foetus, and second, if the foetus was
found not to be a person but instead a part of Ms. Voth, by causing the death
of the foetus. The trial judge first considered whether Ms. Voth had suffered any
severe bodily harm independent of the harm she suffered as a result of the death
of the foetus. She rejected the submissions of the Crown that Ms. Voth suffered
bodily harm in the form of pain arising from the lengthy period during which
she was squatting, pain due to the fundal pressure applied by the emergency ser-
vices attendant, and the cut made when Ms. Lemay began to perform an episi-
otomy, 3 holding that Ms. Voth “miraculously suffered only what in effect would
be bruising.”’24 The trial judge reached this conclusion notwithstanding her find-
ing that in light of the extreme pressure exerted by the ambulance attendant on
Ms. Voth’s uterus, it was “astonishing that nothing ruptured. ‘ Thus, with
respect to the issue of independent harm suffered by Ms. Voth, the trial judge
held, somewhat surprisingly, that the midwives were not guilty of criminal neg-
ligence causing bodily harm.
Godfrey L.J.S.C. also dismissed the argument that the midwives could be
convicted of criminal negligence causing bodily harm to Ms. Voth by virtue of
having caused the death of the foetus. She stated:
I should comment that had I reached the opposite conclusion with respect to the
“persons” argument above, then I would have found the accused guilty on this
count because I would have concluded that the child was a part of Jewel Voth at
the time of its death. 26
Thus, Godfrey L.J.S.C. held that the death of the foetus could not constitute
bodily harm to the pregnant woman, because the foetus was an independent per-
son and not a part of the pregnant woman. This portion of Godfrey L.J.S.C.’s
reasons becomes significant in light of the Supreme Court of Canada’s discus-
sion of this point.
C. The Court of Appeal
Ms. Sullivan and Ms. Lemay appealed their convictions to the British
Columbia Court of Appeal.27 The Court unanimously held that the midwives
should not have been convicted of criminal negligence causing death but instead
should have been convicted of criminal negligence causing bodily harm. Speak-
ing for the Court of Appeal, Nemetz C.J.B.C. reviewed the jurisprudence
2One of Ms. Lemay’s last acts before allowing Ms. Voth to be taken to the hospital was to
attempt to perform an episiotomy on Ms. Voth. After creating a two to three centimetre incision,
Ms. Lemay stopped, realizing that an episiotomy would not be effective. Supra, note 7 at 74-75.
24Ibid. at 75.
25Ibid.
261 bid.
27R. v. Sullivan (1988), 43 C.C.C. (3d) 65, 65 C.R. (3d) 256 (B.C.C.A.).
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regarding the status of the foetus in England, in the United States, and in Can-
ada, and held that Godfrey L.J.S.C. had erred when she concluded that a foetus
in the process of birth was a person. The Court noted that at common law a foe-
tus was not considered a person until it had completely proceeded, in a living
state, from the body of the pregnant woman; the Criminal Code definition of
human being in s. 206 was consistent with this common law definition. The
court held that in using the term “person” in s. 203, rather than “human being,”
Parliament did not intend to depart from the common law understanding of
when a foetus becomes a person. The court thus concluded that a foetus is not
a person within the meaning of s. 203 of the Criminal Code, and therefore that
the midwives should not have been convicted of criminal negligence causing
death.
The Court of Appeal next considered the acquittal of the midwives on the
charge of criminal negligence causing bodily harm. The Court held that its deci-
sion that a foetus does not become a person until it is born alive led to the con-
clusion that, as a matter of law, the foetus is to be considered a part of the preg-
nant woman. The Crown had not appealed the acquittal on this charge; the court
stated that the normal procedure would therefore be to send the issue back to
the trial judge for adjudication. The court noted, however, that the trial judge
had clearly stated that she would have found the midwives guilty of criminal
negligence causing bodily harm had she not held that a foetus was a person. As
a result, the Court of Appeal decided to acquit the midwives of criminal negli-
gence causing death, and substitute a conviction on the charge of criminal neg-
ligence causing bodily harm.
II. The Supreme Court of Canada Decision
Both the Crown and the midwives appealed this decision to the Supreme
Court of Canada. The midwives appealed their conviction on the charge of crim-
inal negligence causing bodily harm, arguing that the foetus is neither a person
nor a part of the pregnant woman. As a result, the midwives argued, causing the
death of a foetus is not a harm recognizable in law and acquittals should be
entered on both charges. The Crown appealed the midwives’ acquittal on the
charge of criminal negligence causing death, while at the same time defending
the decision of the Court of Appeal that the midwives should be convicted of
criminal negligence causing bodily harm. The Crown thus took contradictory
positions: it had to argue on the one hand that a foetus is not a legal person, so
that the convictions for criminal negligence causing bodily harm could be sus-
tained, and on the other that the foetus is a legal person, so that the midwives
could be convicted of criminal negligence causing the death of a person. The
Crown defended its position by arguing that the midwives were guilty of some
offence for causing the death of the foetus, and that because the Supreme Court
had never pronounced on the status of the foetus in the criminal law, it was nec-
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essary to advance both arguments. The Supreme Court also heard argument
from two interveners, L.E.A.F. and Realistic, Equal and Active for Life Women
[R.E.A.L. Women], who offered opposing submissions on the status of the foe-
tus. L.E.A.F. submitted that the Criminal Code must be interpreted in a way that
is consistent with women’s equality, which would mean that a foetus is not to
be considered a person. 8 R.E.A.L. Women advanced the argument rejected by
the Court of Appeal, that by using the term “person” in s. 203 of the Criminal
Code, Parliament intended to enlarge the definition of human being in the Crim-
inal Code to include a foetus.29
In an uncharacteristically brief judgment, the majority of the Supreme
Court of Canada in an 8 to 1 decision acquitted the midwives of both charges.
The Court first considered the charge of criminal negligence causing death.
Writing for a unanimous court on this point, Lamer C.J. held that the midwives
could not be convicted of criminal negligence causing death because a foetus is
not a legal person.3″ Lamer C.J. agreed with the analysis of the Court of Appeal
on this issue, holding that the term “person” in s. 203 of the Criminal Code is
synonymous with the term “human being” as defined in s. 206. 3′ The Court held
that because of this conclusion, it did not have to consider the argument put for-
ward by L.E.A.F. that an approach based on women’s equality would also lead
to the conclusion that a foetus is not a person.
The Court next turned its attention to the question of whether the Court of
Appeal was correct in entering a verdict of guilty on the charge of criminal neg-
ligence causing bodily harm, after acquitting the midwives of criminal negli-
gence causing death. This issue was problematic because the Crown had not
appealed the verdict of acquittal on the charge of criminal negligence causing
bodily harm, and an appellate court generally does not have jurisdiction to dis-
turb an acquittal unless the Crown has appealed from the verdict.32 There is an
exception to this rule where a verdict of acquittal is entered at trial because of
the operation of the Kienapple principle,33 which applies where a person has
been charged with more than one offence for what is in substance the same sub-
ject matter. If the accused is found guilty, he or she is convicted of only one of
the offenses because of the principle that a person should not be punished twice
for the same offence.’ A conditional stay of proceedings is entered on the other
charges, which for the purposes of appeal is akin to an acquittal. This is not,
28Factum of the Intervener Women’s Legal Education and Action Fund.
29Factum of the Intervener R.E.A.L. Women of Canada.
30Supra, note 1 at 13.
311bid.
32See Rickard v. R., [1970] S.C.R. 1022, 13 D.L.R. (3d) 591; Guillemette v. R., [1986] 1 S.C.R.
33The principle was articulated in Kienapple v. R. (1974), [1975] 1 S.C.R. 729, 44 D.L.R. (3d)
356, 27 D.L.R. (4th) 682.
351 [hereinafter Kienapple cited to S.C.R.].
34Ibid. at 745.
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however, a true acquittal which involves a finding that the accused is not guilty,
but an acquittal based on the policy against multiple convictions for the same
delict.35
Speaking for eight members of the Court, Lamer C.J. held that the jurisdic-
tion of an appellate court to interfere with a verdict of acquittal from which the
Crown has not appealed is confined to situations in which the Kienapple rule
arises. 36 He then considered whether the two offenses with which the midwives
were charged gave rise to a Kienapple situation. In an extremely confusing pas-
sage, Lamer C.J. concluded that they did not. Lamer C.J. seems to have arrived
at this conclusion for two reasons. First, he held that there was “an insufficient
legal nexus between the two offences; [since] one requires proof of the death of
the foetus while the other requires proof of bodily harm to the mother.”’37 As the
two charges involved “two separate consequences,” they were not to be seen as
having the same subject matter, even though they involved the “same general
conduct. ‘ 3 Second, Lamer C.J. rejected the contention of the Crown that the
trial judge believed she could not have convicted the midwives on both counts.
He noted that Godfrey L.J.S.C. had considered whether Ms. Voth had suffered
bodily harm independent of the death of the foetus, and had concluded that she
had not. Had the trial judge reached the opposite conclusion, “she may well
have convicted Sullivan and Lemay on both counts.”39 Thus, Lamer C.J. held
that the trial judge had acquitted the midwives of criminal negligence causing
bodily harm to Ms. Voth on the merits. In addition, Lamer C.J. held that the trial
judge could have convicted the midwives of causing bodily harm to Ms. Voth
even if she had suffered no bodily harm independent of the death of the foetus.
He reasoned that
it would not have been illogical to find that bodily harm was done to Jewel Voth
through the death of the foetus which was inside of and connected to her body and,
at the same time, to find that the foetus was a person who could be the victim of
criminal negligence causing death.40
Lamer C.J. held that on the law as she understood it, the trial judge could have
convicted the midwives of both criminal negligence causing death and criminal
negligence causing bodily harm: she could have viewed the foetus as being both
a person and a part of the pregnant woman. The death of the foetus could there-
fore be seen as creating two offenses: an offence against the foetus as a person
S.C.R. 3 at 16-17, 49 C.C.C. (3d) 417, quoted in part in Sullivan and Lemay at 107-108.
35For a clear explanation of this principle, see Wilson J.’s discussion in R. v. Provo, [1989] 2
36Supra, note 1 at 108.
371bid.
381bid.
391bid. at 108-109.
40Ibid. at 109.
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in its own right, and an offence against the pregnant woman, of whom the foetus
was a part.
L’Heureux-Dub6 J. dissented on the jurisdictional point. In her view, the
Court of Appeal had correctly analyzed its jurisdiction to substitute a conviction
for an acquittal on the charge of criminal negligence causing bodily harm,
despite the fact that the Crown had not appealed the acquittal. Under s. 613(8)
(now s. 686(8)) of the Criminal Code, an appellate court “may make any order
… that justice requires.” She would therefore have held that the midwives were
guilty of criminal negligence causing bodily harm and dismissed their appeal.4
1I. Analysis
Two aspects of the Supreme Court decision are worthy of note. The first
is the brevity with which the Court dealt with the claim that a foetus is a person.
Lamer C.J. disposed of this argument in four short paragraphs of analysis. This
should be viewed as an unambiguous statement that the status of the foetus is
no longer a debatable issue in Canadian law at least outside of the Charter.42
The Supreme Court relied on the discussion of the issue by the British Columbia
Court of Appeal which was based on an analysis of the status of the foetus in
Canadian, English and American common law. The Court of Appeal concluded
that in all three legal systems, a foetus was not considered a person until it was
born alive. The Supreme Court of Canada reached the same conclusion in 1989
in Tremblay v. Daigle,” a decision it rendered after the Court of Appeal decision
in Sullivan and Lemay. In Daigle, the Court held that a foetus is not a legal per-
son at common law or in the civil law.” The willingness of the Supreme Court
of Canada to accept the Court of Appeal’s analysis of the issue, without engag-
ing in any further discussion or reiterating its analysis in Daigle, can only be
interpreted as a pronouncement that the status of the foetus is no longer open
to debate.
Second, although the Supreme Court did not expressly rule on L.E.A.F.’s
argument based on women’s equality, the judgment indicates a receptiveness to
equality concerns. Although in the result, the midwives were acquitted of crim-
inal negligence causing bodily harm to Jewel Voth, the majority of the Supreme
4’11Ibid. at 109-10.
421 would also argue that in light of the decision of the Supreme Court in Tremblay v. Daigle,
[1989] 2 S.C.R. 530, 62 D.L.R. (4th) 634 [hereinafter Daigle cited to S.C.R.], it is very unlikely
that the Court will hold that a foetus is a person under the Charter. An exposition of this argument
is beyond the scope of this comment.
431bid. The Daigle case arose when Jean-Guy Tremblay attempted to have his former girlfriend,
Chantal Daigle, enjoined from obtaining an abortion. Mr. Tremblay was successful at trial and on
appeal to the Quebec Court of Appeal, but the Supreme Court of Canada unanimously vacated the
injunction.
441bid. at 570.
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1379
Court clearly recognized that harm caused to a foetus should be seen as harm
caused to a pregnant woman, because the foetus is “inside of and connected to
[the woman’s] body.”4 This pronouncement is in complete accordance with
L.E.A.F.’s submission that viewing harm caused to the foetus as harm to the
pregnant woman is the only result consistent with women’s equality. In addition,
the language chosen by the Court to explain why harm to a foetus is harm to
the pregnant woman indicates that it considered L.E.A.F.’s equality argument
seriously. A central premise of L.E.A.F.’s argument was that the ways in which
the law describes pregnancy do not reflect the ways in which women experience
pregnancy. L.E.A.F. attempted to present to the Court a vision of pregnancy that
reflected women’s perspectives, by describing pregnancy in a way that recog-
nized the uniqueness of the relationship between a pregnant woman and her foe-
tus. L.E.A.F. submitted that such a concept of pregnancy required a departure
from the standard approaches of either viewing the foetus as an independent
person or as akin to a body part. Instead, L.E.A.F. advocated describing the foe-
tus as being “in and of’ the pregnant woman, to emphasize not only the fact that
the foetus exists within the woman, but also that the foetus is uniquely intercon-
nected with her in “intricate and intimate ways.”46 The Court’s use of the words
“inside of and connected to”‘
the pregnant woman to describe pregnancy dem-
onstrates a willingness to consider the reformulations of the law’s treatment of
pregnancy that an equality model would require.
Although the Supreme Court judgment is on the whole promising for
women, it is not without its problems. These arise from Lamer C.J.’s reasoning
on the Kienapple issue, which is confusing and not persuasive. The Chief Jus-
tice reasoned that the Sullivan and Lemay case did not present a Kienapple sit-
uation, because the trial judge could have convicted the midwives of both crim-
inal negligence causing death and criminal negligence causing bodily harm to
Ms. Voth, once they were found to have caused the death of the foetus. This
assertion by Lamer C.J. is puzzling in light of the clear statement by the trial
judge that she would have found the midwives guilty of criminal negligence
causing bodily harm to Ms. Voth had she not held the foetus to be a person. The
comments of Godfrey L.J.S.C. on this point bear repeating to illustrate just how
unambiguous her views were:
I should comment that had I reached the opposite conclusion with respect to the
“persons” argument above, then I would have found the accused guilty on this
count because I would have concluded that the child was a part of Jewel Voth at
the time of its death.43
45Supra, note 1 at 109.
46Supra, note 6, para. 42-50.
47Supra, note I at 109.
48Supra, note 7 at 75.
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There can be little doubt that the trial judge viewed the charges as giving rise
to an either/or situation. Her approach to the case was that the legal status of the
foetus would determine the charge of which the midwives could be convicted.
If the foetus were a person, the midwives could be convicted of criminal neg-
ligence causing death, and not of criminal negligence causing bodily harm to
Ms. Voth. If instead the foetus were not a person, the midwives could only be
convicted of criminal negligence causing bodily harm to Ms. Voth, because the
foetus would be considered in law to be part of the pregnant woman. Godfrey
L.J.S.C. clearly did not believe that the foetus could be a person in its own right
and part of the pregnant woman at the same time. It is therefore difficult to see
how Lamer C.J. can claim that the trial judge could have convicted the mid-
wives on both charges as a result of the death of the foetus, when Godfrey
L.J.S.C. herself plainly believed that she could not.
The other reason which Lamer C.J. provides for his conclusion that the
Kienapple principle does not apply is similarly problematic. The Chief Justice
states that there is an insufficient legal nexus between the charge of criminal
negligence causing death and criminal negligence causing bodily harm because
“one requires proof of the death of the foetus while the other requires proof of
bodily harm to the mother.”49 It is difficult to see how Lamer C.J. can reconcile
this argument with his statement that causing the death of the foetus is in itself
causing bodily harm to the pregnant woman. If the death of the foetus is harm
suffered by a pregnant woman, the idea that there is an insufficient legal nexus
between the death of the foetus and bodily harm to the pregnant woman is non-
sensical, since proof of the death of a foetus would be proof that the woman has
suffered bodily harm.
It may be correct to say that this is not a Kienapple situation, but not for
the reasons Lamer C.J. suggests. The Kienapple principle arises where an
accused person could be found guilty of two separate offenses for the same sub-
ject matter. In other words, if the accused performs an action which could con-
stitute two distinct offenses, the Kienapple rule prevents multiple convictions
for the same conduct.5″ For example, in the Kienapple case itself, the Supreme
Court held that the accused could not be convicted both of rape and of unlawful
sexual intercourse with a female under 14 years of age for sexually assaulting
a 13 year old girl.5 Since one act –
lay at the root of both
charges, a conviction on one charge would preclude conviction on the other. To
fall within the Kienapple rule, then, the facts must give rise to the possibility
that the accused could be convicted of two offenses because he or she has done
a single act which happens to fall within the ambit of two separate Criminal
Code provisions.
the sexual assault –
49Supra, note 1 at 108.
5 0See supra, note 33 and accompanying text.
51Ibid.
1991]
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Sullivan and Lemay was not a case in which the two accused could have
been convicted of two offenses, but were not so convicted simply because of the
rule against multiple convictions. In fact, Sullivan and Lemay presented exactly
the opposite problem. The case was legally significant precisely because it
required the courts to choose whether the death of a foetus should be viewed in
law as being the death of a person or as constituting bodily harm to the pregnant
woman. Until the comments by Lamer C.J. at the Supreme Court in Sullivan
and Lemay, there was never any suggestion that the death of a foetus could give
rise to two legal wrongs. Rather, it was generally accepted52 that causing the
death of the foetus was either causing the death of a person or causing bodily
harm to the pregnant woman, but that it could not be both. The reason that Sul-
livan and Lemay was not a Kienapple case was therefore because it required a
choice between competing conceptions of the legal status of the foetus. It was
not a case in which the actions of the midwives in causing the death of the foe-
tus could have led to convictions on two distinct counts.
Despite the weaknesses in the Supreme Court’s reasoning on the Kienapple
issue, Sullivan and Lemay is a positive decision for women. The Supreme Court
has reaffirmed its decision in Daigle, that a foetus is not a person in Canadian
law, a conclusion which is crucially important for women. The Court has also
indicated, as it did in Brooks v. Canada Safeway Ltd.,” that it is receptive to
hearing arguments about pregnancy that are rooted in the precepts of women’s
equality.
521 say “generally accepted” because Sullivan and Lemay did not accept this proposition. Instead
they argued that the death of a foetus was neither the death of a person nor causing bodily harm
to the pregnant woman because a foetus was neither a person nor a part of the pregnant woman.
51[1989] 1 S.C.R. 1219 at 1242-50, 59 D.L.R. (4th) 321.
