POLS 3130 Chapter Notes - Chapter 13-17: Toronto Star, Roland Penner, Boiling Point

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Published on 17 Apr 2013
University of Guelph
Political Science
POLS 3130
Chapter 13:
- February 1983: Letter from Shumiatcher brings good and bad news
- GOOD: A trial date is finally set for Borowski for May 9th in the Court of
Queen‟s Bench in Regina
- BAD: Borowski needs to post a $350,000 guarantee to cover expected costs
- He only had $100,000 in the Alliance Against Abortion bank account
- Needed the money in the next 60 days
- Borowski held a press conference to try and launch an appeal, but only 3 reporters
showed up
- He went to his friend who was an editor and publisher for The Catholic Register, who
ran a front-page story for him
- From this article, money began to pour in and he received more money than he
- He was convinced that it was both a miracle, and the fear and loathing that
Morgentaler and his pro-abortion views brought out in pro-life activists
- In the days leading up to the trial, Regina was bustling with activists from both sides of
the argument- not only from Canada but all over the world
- Shumiatcher (Borowski‟s lawyer) was worried that a dry recitation of “the facts” would
not be enough to persuade a judge. He called upon viva voce evidence as well- bringing
the leading experts from around the world to Regina to testify in person
- Another novel element in the Bowoski challenge was the use of the new Charter of
Rights and Freedoms
- When the claim was first filled in 1978 it was done so under the Bill of Rights
- The first matter Schumiatcher address in court was procedural
- The Saskatchewan Evidence Act limits a lawyer to only 5 expert witnesses,
however he had brought with him 9. He asked for permission to use all 9, and the
judge agreed
- Schumiatcher‟s basic argument was that modern medicine has discovered that a fetus is
a human person, and therefore abortion is in violation of that fetus‟ Section 7 Charter
Right to life
- Although Section 251 permitted abortion, it was in clear violation of Section 7
of the Charter and was therefore invalid
- The argument that the fetus is indeed a human was proven by the 9 expert
- Schumiatcher knew that he needed more than just scientific fact to win the case and
have the judge change the constitutional law, thereby overruling Parliament‟s collective
- He believed that the legal lever he needed could be found in the Persons Case
- Woman was told she could not be a member of the Senate because the
law only authorized the appointment of “qualified persons” to Senate, and
although at the time of the Persons Case women were allowed to vote,
they were not before when the law was created and so they were not
considered to be “persons”. The judge ruled that women did not qualify as
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“persons” because the word of the Constitution must be interpreted to
mean what they meant at the time of their enactment.
- The decision was appealed and taken to the JCPC, who ruled entirely
different and said that the constitution is a “living tree” that has a large
- Schumiatcher tries this to Borowski‟s case by arguing that the desire to
have a group be considered a „person‟ is the same; the other case with
women, this one with unborn children
- Schumiatcher‟s first goal was to discredit the present abortion law and to bash the TAC
- Had Dr. Carnduff on stand (Dr. for TAC) who he criticized
- Testifiers:
- Dr. William Liley: New Zealand physician, who spoke about how separate the
unborn child and their mother are, and stated how in medical terms there was no
such thing as a “potential human being”
- Ms. K: woman who was forced to have an abortion at age 16 and has since had 3
miscarriages and claims to be emotionally scarred from it
- Judge ruled that the testimony was not at all relevant
- Lejeune: Geneticist from Paris who spoke about chromosomes and how they
create unique individuals. The purpose of all of this was to prove that the abortion
law is out of step with modern, newly-developed science
- Dr. Bernard Nathanson: abortion-rights activist with the title as the “Abortion
King of America”. He was testifying, however, on the side of Schumiatcher and
Borowski. He testified how he and other pro-choice doctors used fake medical
reports about their patients to qualify them for abortions, and how TAC in New
York was stacked with pro-choice doctors who would rubber-stamp all abortion
- Dr. Smyth: tried to debunk that alleged “psychological harm” of abortions
- Dr. Beirne & Dr. Kudel: testified to the early anatomical development and
agility of the fetus
Dr. Morris: reinforced earlier testimony as to the “rubber-stamp” character of the
TAC process
- The Crown, in response, did not call upon any of their own witnesses. They did not
argue the accuracy of the plaintiff‟s evidence, only its relevance
- Sojonky (Crown Lawyer) introduced into evidence 3 documents, however they
were not admitted
- Sojonky asked for the proceedings to be adjourned to allow for time to prepare
for final argument. His request was granted
- In final arguments, Shumiatcher “wed the principles of law with the knowledge of
- Stressed the primacy of respect for human life
- Reminded the judge that medical science has shown that a fetus is biologically
and genetically no different from a newborn
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