James Demers v. Canada

This report addresses the admissibility of a petition that alleged Canada failed to fulfill its obligations under the American Declaration on the Rights and Duties of Man (the Declaration), including protection of the right to life, the right of special protection of women during pregnancy and the freedom of expression and dissemination of ideas.

Anti-abortion activist James Demers participated in a series of demonstrations outside of an abortion facility in Vancouver.  He was arrested, detained for seven weeks and later convicted of three offences under British Columbia’s Access to Abortion Services Act (the Act). The Act prescribed a maximum sentence of one year in prison and a fine of C$10,000.

Demers subsequently brought the petition in the name of “hundreds of thousands of unborn children and their mothers.” Demers claimed the Act violated unborn children’s right to life, right to equality before the law and right to fully form and develop a personality, as guaranteed by articles I, II, and XXIX of the Declaration. Demers claimed there was evidence that demonstrated unborn children were fully human, though in the process of development. He asserted that the abortion procedure violently interrupted this development.

Demers argued the Act violated article VII of the Declaration (right to special protection of women during pregnancy) because women were “pressured” by the Province of British Columbia, family, boyfriends and others into having abortions.

Demers claimed the Act violated Article XIII of the Declaration (right to participate in the benefits of scientific discoveries) because pregnant women were “denied the benefit of scientific discovery regarding the nature of the life” of their unborn children.

Demers claimed the Act violated article XXII of the Declaration (right of association) because pregnant women were denied the right to associate with “those who care about the physical, emotional and spiritual impact that killing [an unborn child].”

Demers further contended the Act violated the right to freedom of expression and dissemination of ideas under article IV and the rights of mothers and unborn children to be recognized as persons having rights and obligations under article XVII of the Declaration.

The Commission declared the petition admissible as to the alleged violation of the freedom of expression and dissemination of ideas.

The petition was not admissible as to the alleged violations of the rights of unborn children and their mothers in connection with the British Columbia’s Access to Abortion Services Act. The Commission stated that it had already clearly established that, in most circumstances, legally provided abortion services were not a violation of the Declaration. Moreover, the Commission found that “hundreds of thousands of unborn children and their mothers” did not constitute a “sufficiently specific, defined and identifiable group” for the purpose of article 32 of the Rules of Procedure of the Inter-American Commission on Human Rights. The Commission thus decided it was not in a position to assess these allegations.

“Based on [the Commission’s] jurisprudence, the Commission finds that ‘hundreds of thousands of unborn children and their mothers’ as referred to by the Petitioner do not constitute sufficiently specific, defined and identifiable groups for the purpose of Article 32 of the Commission’s Rules of Procedure. The Commission’s position is not attenuated by the Petitioner’s contention that the record of his trial in Canada ‘contains the name of a minor girl and her mother.’ Firstly, the Petitioner has provided no evidence to support his contention, for example, by way of a trial transcript. Accordingly, the Commission is in no position to assess the nature, quality, or veracity of these claims. Secondly, even assuming the veracity of the Petitioner’s claim, the Petitioner has not supplied any further or more specific information or evidence to verify that the alleged experiences of the minor child and her mother are representative of the ‘hundreds of thousands of unborn children and their mothers’ that the Petitioner seeks to represent. Finally, the references to the minor and unborn child did not occur in the context of any legal proceedings action taken by the Petitioner on their behalf, but in the context of criminal prosecution against the petitioner himself. On the assumption that the Commission found that the Petitioner was in compliance with Article 32, the Petitioner would still have the burden of demonstrating exhaustion of domestic remedies with respect to the referenced minor and her mother. This is a burden that the Petitioner has patently not discharged. In the premises, the Commission accordingly finds the claims made under Articles I, VII, XIII, XVII, and XXIX of the American Declaration on behalf of the ‘hundreds of thousands of unborn children and their mothers’ and/or the minor child and her mother referred to by the Petitioner, to be in abstracto, and therefore inadmissible, ratione personae.” Para 45.

“With respect to the right to freedom of expression, there appears to be no disagreement between the parties that the Petitioner exhausted domestic remedies, having regard for the decision of the Supreme Court of Canada of September 25, 2003 to dismiss the Petitioner’s application for leave to appeal his convictions for protesting outside of an abortion facility. The Commission therefore finds that that the Petitioner did exhaust all domestic remedies with respect to the allegations of violations of Article IV of the American Declaration is admissible.” Para. 55.