This is one of the arguments we are making before an Ontario court this June as an intervener in the Guelph and Area Right to Life v the City of Guelph case. The facts of this case are straightforward: the City took down three pro-life bus advertisements after Ad Standards issued opinions that they were inaccurate.

You may remember our interactions with Ad Standards in relation to our billboards and bus ads that said, “Canada has no abortion law.” In that instance, Ad Standards admitted the ads were true, but claimed there was a “general impression” of inaccuracy. Ad Standards has a long history of issuing befuddling and contradictory opinions regarding pro-life advertisements. This has been a thorn in the side of the pro-life movement because advertisers, including the City of Guelph, defer to these opinions even though Ad Standards has no legal authority.

The case coming up in June is between Guelph and Area Right to Life and the City of Guelph. There are also three secondary groups, including us, who are going to present legal arguments as interveners. These secondary groups have been granted the opportunity to speak to the case because the court recognizes that the result of this case could greatly impact others. This case involves interpreting our fundamental freedoms in the Charter and how they apply to advertising. Groups like We Need a Law are affected because we also use advertising to communicate the pro-life message.

As an intervener, we aren’t covering all of the arguments relevant to this case but are confining ourselves to one fundamental issue: the limitations of Ad Standards. In this case, the City of Guelph substantially relied on Ad Standards’ opinions to remove the pro-life advertisements. We argue this is constitutionally inappropriate for two main reasons.

First, Ad Standards does not consider the Charter in their opinions. Ad Standards is a private body issuing opinions generally on commercial advertisements. Their opinions are not subject to the Charter, nor do they even list freedom of expression as one of their values. They simply lack expertise in freedom of expression law. The City, however, as a government actor, has the obligation to ensure that freedom of expression is not unduly limited. They cannot abdicate that responsibility by relying on a private body.

Second, Ad Standards is unqualified to arbitrate the abortion debate. Canada is having an ongoing conversation about abortion with passionate advocates on either side. In order to give full meaning to freedom of expression, the City needs to ensure that one side of the debate is not silenced by the other. But Ad Standards does not have that obligation and there is no evidence that they are not being hijacked by activist-instigated complaints.

In short, we argue that the City’s substantial reliance on Ad Standards in this decision was unacceptable and renders this an unjustifiable infringement of freedom of expression.

We submitted our written arguments on May 17^th and we look forward to presenting oral arguments on June 15^th. We’re thrilled to be able to argue for the freedom to express the pro-life message and we’re especially grateful to Guelph and Area Right to Life for expressing that message in their city. Legal cases that involve protecting our freedom to speak don’t happen unless we are using our voice. We appreciate all the Canadians out there, including our supporters, who faithfully strive to do so.

We will keep you updated as the case progresses, and we encourage you to keep using your voice to faithfully witness in your community. Not just because you have the freedom to speak, but because the world around us has the freedom and the need to hear the message that every life is a gift and should be protected.

On a beautiful warm day in June in Eastern Europe, a husband and wife were on their way to the hospital, eagerly anticipating the arrival of their second child. The baby was making his appearance a bit early, but the parents weren’t too concerned – surely the doctors and nurses would be able to help if there were any challenges with his slightly early birth.

Labour progressed in the usual fashion, and their months of anticipation were finally rewarded with the birth of a little boy. Mother and father caught a glimpse of him as the doctor brought him to the table to check him over. He was tiny, but they could hear him yell with a healthy cry. They smiled at each other while they waited for their son to be brought back to them.

But the doctor remained at the table with their son for quite a while. Anxiety began to creep into their hearts. What was taking so long? Their first child had been handed back to them in a matter of minutes. The doctor called a nurse, and after a brief low conversation, the baby was whisked out of the room. Their hearts sank – something was clearly not right.

The doctor came over to the parents and shared the news. “I’m terribly sorry. Your baby has Down syndrome. You don’t want to take this baby home. We will bring him to the home for children with medical needs. They will be able to give him the care he needs – you can’t do that at home. These children have all kinds of troubles and are a burden to their families.  They don’t live very long, and they can’t accomplish anything meaningful in life. You don’t want that for yourselves and your child at home. Go home, and maybe someday you will have another healthy child.”

With tears streaming down their faces and hearts broken in a thousand pieces, the mother and father accepted what the doctor said, signed away their parental rights, and left their son in the care of the medical staff. He would be raised in an orphanage, separated from his family and from contact with the outside world.

As you read this, you may feel outraged. How could the doctor be so presumptuous?  How could he tell the parents that they couldn’t raise their own son, and not even give them a chance to try?  Why didn’t he share more accurate information with them?  Didn’t he know that people with Down syndrome can live joyful, meaningful lives? What an awful tragedy for the family and their little son. Aren’t we thankful we live in Canada, where people with disabilities are given support and opportunities!

But consider the story of another family.

It is a beautiful warm day in June in Ontario. A husband and wife are on their way to meet with a maternal-fetal medicine specialist, about halfway through their pregnancy with their second child. At the ultrasound a week ago they had been delighted to see their little unborn son kicking and waving, his heart beating strongly. But then a couple days later their obstetrician had called. Something wasn’t right with the baby’s heart – there was a hole in the middle. It could be repaired, but this kind of defect was common in babies with Down syndrome. He would refer her to a specialist and arrange for further testing.

With her head spinning, the mother left his office confused and heart broken. Down syndrome?  She had some vague memories of a child in her community with Down syndrome, but she didn’t really know anything about him. What kind of life did people with Down syndrome have? What would this mean for their family? She could feel the baby kick and squirm, and her heart sank.  What was going to happen to him? The world can be a hard place – was this child headed for a life of suffering? Was it cruel to bring him into the world? The husband and wife cried together and counted down the days until their meeting with the specialist.

And now they are sitting in the specialist’s office, awaiting the results of the testing. The doctor walks in with a handful of papers, sits down and says, “I’m terribly sorry. The fetus has Down syndrome. We can book an appointment for a termination right away. People with Down syndrome have all kinds of struggles and don’t live very long.  They can’t accomplish much, and they are a burden to their families. You don’t want this for yourselves or your family. But you are young still – you can try again and have another healthy child. Now, let me call my secretary and she’ll book you in for a termination in a day or two.”  And, blindsided and stunned, with tears streaming down their faces and hearts broken in a thousand pieces, the parents sign the consent form presented for a termination.

That is the experience of many families in Canada when they receive a prenatal diagnosis of Down syndrome. And the vast majority will choose to terminate the life of their unborn child, believing it to be better for themselves, their families, and even the child.

But consider a different version of the same story.

The expectant couple sit together, anxiously anticipating the doctor’s arrival and the results of their testing. The doctor opens the door with his hands full of papers, and some brochures, and a book. He sits down and says, “I have your test results, and it looks like your child has Down syndrome. Let me give you some information about that. Here is a book written by parents of children with Down syndrome. Here is some information about common medical issues experienced by children with Down syndrome. Here is the contact information for the local support group for families. People with Down syndrome experience some extra challenges, but they generally lead joyful and meaningful lives. They go to college, get jobs, and some even marry. Your son will do everything that other children do, just in his own time. I understand that this is a lot of information for you to take in right now. I am not going to rush you into deciding anything. Please look over the information I’ve given you, and feel free to call me or connect with the local support group if you have any further questions. I will see you again next week.”

Feeling stunned by the unexpected diagnosis, but also feeling a faint glimmer of hope that things could still be ok, the couple return home, books and papers and phone numbers in hand. About four months later, their son arrives. “Congratulations!” the doctor says. “He’s perfect.”

This second version is also experienced by some families in Canada. Thankfully, it was our own experience when our son with Down syndrome was born four and a half years ago.

MPP Sara  Singh has introduced Bill 225 (Harvey and Gurvir’s Law) in the Ontario legislature because she agrees that this second version should be the standard for all parents receiving a prenatal diagnosis of Down syndrome.

If this law passes, parents will be provided with accurate and up-to-date information about Down syndrome, made aware of supports available to them, and given 48 hours before having any further appointments or procedures suggested.  Knowing the incredible importance of the tone of that initial conversation, I urge you to contact your MPP and ask them to support this law. 

You might also like to know that, if all goes to plan, the little boy in the first story will be joining our family in a few months as a dearly loved son.

Thank you so much to Julia for sharing her family’s story with us and giving us permission to share it here. 

Jane Natasha was born two weeks early, on August 14, 2020. It was a very easy labour, and she was small, just over 6 lbs. It wasn’t until the next evening, after we had announced her arrival to all our friends and family, that a doctor came in and checked her over and told us she was going to call the pediatrician in because Jane had low tone. I didn’t know too much about what low tone (hypotonia) was, so I looked it up and saw the words “Down syndrome.”

Our story may be a little different than many, as we did not have a prenatal diagnosis, but found out a day after Jane’s birth. I had thought to myself soon after she was born that she looked a little like she had Down syndrome, but I thought that was unlikely, and shrugged it off. So after the doctor told us that she had low tone, I looked it up on my phone and found all sorts of information that scared me. My husband and I talked about it together. We checked all the markers to see if she had them … did she have a gap between her toes? Sort of, but so did I. Did she have a palmar crease? No. But her eyes … they definitely had that shape to them.

I prayed and begged to God, “Anything but Down syndrome, please let it not be Down syndrome.” Now I feel incredulous and even ashamed that I felt that way. But we worried and hoped the pediatrician would come and thankfully, she did come that night. She took about a five-second look at Jane and then said, “She has low tone. This is really common in babies with Down syndrome.” As soon as she said those words, I burst into tears and couldn’t calm down. My husband asked the doctors if we could have some time alone and we both cried. We prayed, called our parents, messaged our families, messaged our friends, asking for prayers.

My pregnancy was normal, although the checkups were different because of COVID-19. Everything looked fine, and at the 20-week ultrasound there were no concerns except that the baby’s head was measuring small. I had another ultrasound but “passed” that one, so that was the only indicator we had that there could be anything different about our baby. We promptly forgot about it. I did not do the genetic screening, and sometimes I wish I had known prenatally about our daughter’s diagnosis so that I would have had more time to prepare. But other times I am happy that we didn’t have to go through the pregnancy knowing about it, and having to meet with genetic counsellors and have those kinds of conversations with doctors. Also, because Jane’s diagnosis was undetected in my pregnancy, it meant that she didn’t have any of the serious health concerns often associated with Down syndrome – no holes in her heart, for example.

We didn’t get the official results for Janie’s Trisomy 21 until the week after her birth. The doctor called to confirm the diagnosis, but we already knew from the first moment the pediatrician mentioned it that our little girl definitely had Down syndrome. The doctor who had first told us about the low tone had also said, “She’s a beautiful baby,” which has always stuck with me.

By the next day we were already feeling better, although there were a lot of ups and downs after that. We met with a social worker in the hospital, which was very helpful. She gave us resources from the Fraser Valley Down Syndrome Society (FVDSS) and information about a postpartum group I could connect with. Jane was doing very well in the hospital, besides a bit of jaundice, and the pediatrician was not concerned about anything. She had some routine blood tests for thyroid, and when she was almost 2 months old, we went to BC Children’s Hospital to get her heart checked out, which thankfully had no problems at all.

A few weeks after Jane was born, we were visited by the founding members of FVDSS. This connection was so helpful. Their children were just transitioning into adulthood, and it was great talking to them about what that was like. I had also been connected to a Christian mom on Instagram that had an almost 3-year-old with Down syndrome, a friend of a friend. She was so helpful and answered a lot of my questions and encouraged me.

Our minister and his wife visited, which was also so encouraging, and we had an immediate connection because their daughter has an unknown genetic disorder and, although very different from Jane, they could relate to what we were feeling. One thing my husband and I first worried about after finding out was how it would affect our other kids. Would Luke’s and Ruth’s lives be worse off now that they had a sister with Down syndrome? We wouldn’t be able to give them the attention they needed, I thought. Our pastor and his wife encouraged us that it would be fine, and not just fine, but our children would even be better for it.

I joined a few online groups that were recommended to me by my Instagram friend and that is where I would say the change in me started happening. I loved our daughter but was still scared of Down syndrome and unsure about the future. These groups gave me a place where I could ask any question, answer others, and see beautiful photos of cute babies. From there I joined a breastfeeding group, which was the most helpful for me because I was struggling with feeding Jane.

After joining, things improved and I became more relaxed, and as the weeks passed, I was able to pass on my own tips to new moms. I joined a Christian group for BC moms, a group chat for BC moms with kids 3 and under, and Darryl and I both became members of a BC parents’ group (which has over 400 members). Those groups introduced us to older kids with Down syndrome and opened up discussions about things that we will need to know in the future, which helped us to become a little more confident.

Overall, we had a positive experience with our healthcare providers. The doctors and nurses in the hospital were caring and kind, as were the maternity doctors at the office for follow-up appointments. The pediatrician who diagnosed Jane has become our personal pediatrician and she has been wonderful. It wasn’t until after talking with other parents that I realised that our experience was not the same as others’, especially those who receive a prenatal diagnosis.

The amount of women who have told me (in BC) that they were pressured to abort after a prenatal Down syndrome diagnosis is horrendous. There seems to be a genetic counsellor at Women’s Hospital who is very negative about babies with genetic conditions. One woman was told her baby wouldn’t be able to move and that it would be like having a “dead baby.” Other people were pressured by family and friends, telling them they couldn’t listen to parents who have children with Down syndrome because those parents would be biased. One nurse had a co-worker who told her that she aborted her baby with Down syndrome because she didn’t want a baby “like that.”

It makes me angry and so, so sad to hear these stories, and also so thankful that it wasn’t something I had to experience. All of the people I’ve met who have children with Down syndrome are so positive and upbuilding. They want to shout their children’s worth. I feel that in my community and church circles I don’t have to do as much shouting – we all know that Jane is a child of God and is special no matter what.

What I most want to say is this: I know now that all the feelings we felt were part of a grieving process. We were grieving the child we thought we would have. But, as I read somewhere a few days after Jane was born, in our case the “problem” was actually the solution. We didn’t have the baby we expected, but we did have a baby, and had to take care of her and love her. A lot of parents say that, looking back, they wish they wouldn’t have cried or been so worried, and I totally agree. I understand those feelings are natural, but really our problem was fear – we were scared that our life wouldn’t be “normal”, that our other kids would suffer, that Jane wouldn’t have a good life, that we wouldn’t be good enough parents. And I think that part of that is because of ignorance about Down syndrome and other disabilities.

We’ve learned so much in the last 7 months that I really do feel I’m a stronger and less fearful person. I look at people with disabilities a lot differently than I used to. I think education for everyone is important, and to have that we need up-to-date information. We need real-life stories, not just facts about what could go wrong. The best thing for us was connecting with other parents in the Down syndrome community.

Jane is one of the healthiest babies with Down syndrome. A lot of women with prenatal diagnoses find out because of health concerns with their baby that show up on ultrasounds. And I’ve seen many tough babies go through a lot. But every mom I’ve talked to says that it’s all worth it and that they love their child so much. I can see it. And it’s important that everyone sees it.

We know that Jane is a child made in the image of God. Her Creator loves her and put her in our family for a reason – and I am thankful to Him every day now for giving her to us. God helped us through the beginning of Jane’s life and we know He’ll continue to be close to us for the rest.

An Ontario MPP has introduced a bill that would change the way a prenatal diagnosis of Down syndrome is given, including giving parents time to process before suggesting abortion or any further testing. We would love to see legislation like this introduced in every province – as you see from Julia’s story, supportive and encouraging voices can make a huge difference in a family’s journey.

If you have a story to share, we would love to hear from you!

Why the confusion?

One of the reasons for the confusion is that Morgentaler is not really one decision – it’s four decisions. Every time Canada’s Supreme Court hears a case, each sitting judge has the option to write their own decision and the reasoning for it. In Morgentaler, four judges opted to do so.

Three of the decisions, endorsed by a total of five judges, struck down the existing abortion law, while one decision, endorsed by two of the judges, would have upheld the law. This means that while the result is clear – the previous abortion law was struck down as unconstitutional – the reason why is not at all clear, because five different judges arrived at the conclusion in three different ways.

This means that when we draw conclusions from the Morgentaler case regarding abortion in Canada, it must be done with qualifications and by drawing from the various reasons.

While it is difficult to get a clear sense of what Canada’s law is from this case, there are three main takeaways that everyone in the pro-life movement should know from Morgentaler.

#1: The Court did not decide the abortion question.

The Supreme Court did not demand abortion to be legal. They merely found that the former system involving hospital-run committees was arbitrary and unfair.

Chief Justice Dickson wrote in his decision: “[T]he task of this Court in this is not to solve nor seek to solve what might be called the abortion issue, but simply to measure the content of s. 251 [the law on abortion at the time] against the Charter.”

The Supreme Court justices did not decide whether abortion is or is not moral. They did not consider the humanity of the pre-born child nor (with the exception of Justice Wilson’s decision) whether women should or should not have a right to abortion. Instead, they started from the premise that abortion was legal at that time and they examined that law specifically.

In 1969, an amendment to the Criminal Code was passed by Parliament that created an exception to the general illegality of abortion. In practical terms, abortion was illegal unless the pregnant woman received a certificate from a Therapeutic Abortion Committee appointed by a hospital that continuing the pregnancy “would or would be likely to endanger her life or health.” It was this system that the Supreme Court was looking at in the Morgentaler decision. And, to put it succinctly, they found this system of approving abortions to be arbitrary and unfair because hospitals could refuse to appoint a committee, or a committee could take a long time to make the decision, meaning the abortion happened later in pregnancy and had more health implications. Therefore, the majority of judges found a breach of the Charter’s section 7 guarantee of life, liberty and the security of the person.

#2: The Court did not find a right to abortion for women.

Justice Beetz articulated this clearly, saying that, given the abortion law’s placement in the Criminal Code, it “cannot be said to create a ‘right’ [to abortion], much less a constitutional right, but it does represent an exception decreed by Parliament.” Chief Justice Dickson didn’t even consider the question, but merely focused on the specific regime chosen by Parliament.

Some of the confusion around this point is possibly due to Roe v Wade in the US which did find a right to abortion for women. Canada’s law does not have an equivalent decision. To quote current Supreme Court Justice Sheilah Martin (appointed in 2018 by Prime Minister Trudeau), “the Supreme Court did not clearly articulate a woman’s right to obtain an abortion… and left the door open for new criminal abortion legislation when it found that the state has a legitimate interest in protecting the fetus.”

The one nuance to this point comes out of Justice Bertha Wilson’s decision. Writing alone (meaning her reasons were not endorsed by the other judges), she found that women “do have a degree of personal autonomy over important decisions intimately affecting their private lives” which included in some circumstances the choice to have an abortion. But it should be noted that, in her own estimation, this was not without limits. Which leads us to our third takeaway.

#3: The Court expected Parliament to pass a new abortion law.

Justice Bertha Wilson, after finding women ought to have a “degree of personal autonomy,” limited this by saying a woman’s “reasons for having an abortion would, however, be the proper subject of inquiry at the later stages of her pregnancy when the state’s compelling interest in the protection of the foetus would justify it in prescribing conditions. The precise point in the development of the foetus at which the state’s interest in its protection becomes “compelling” I leave to the informed judgment of the legislature.”

In other words, Justice Wilson expected and endorsed a law restricting abortion at least in the later stages of pregnancy. She doesn’t dictate what that law should be, because that is not the role of the Court. It is Parliament’s role as the institution responsible for passing laws in Canada. The Court’s role is limited to examining laws in light of the Charter, as they did in Morgentaler.

Conclusion

The Morgentaler decision did strike down the previous abortion law and, due to the inaction of Parliament, Canada has had no abortion law since. But, in the Morgentaler decision, the Supreme Court was not intending to settle a question about abortion’s legal status, did not discuss what rights the pre-born child should have, did not find a right to abortion, and properly looked to Parliament to consider these vital questions and then pass appropriate legislation.

This is why we focus on Parliament, urging them to answer the call of Morgentaler, including the call from Justice Bertha Wilson to legislate with reference to their “interest in the protection of the foetus.” All these years later, Parliament needs to do what it should have done then: pass a law that begins to recognize the human rights of the pre-born child.