The following article was sent to the Guardian, Journal Pioneer and Eastern and West Prince Graphics for publication as a Guest Opinion on April 29, 2016. It was published in the West Prince Graphic on May 4th.
The piece summarizes and comments on a Federal Court of Canada decision rendered on April 21, 2016 which acknowledges the fundamental right for unborn children to be protected. The Federal Court ruling obliges governments to both enact and interpret laws which protect the unborn and serve their best interests. Despite the legal significance of this landmark ruling, to my knowledge it has not been reported or discussed in the mainstream media within Canada. You can read the entire ruling (19 pages) by clicking on this Link.
Recently (April 21, 2016) the Federal Court of Canada delivered a landmark decision affirming that governments have a fundamental duty to protect unborn children. This ruling has direct implications on how the P.E.I. government regulates abortions.
The Federal Court case was initiated by Fangyun Li, a citizen of China. He arrived in Canada in 2002 on a valid student permit. In 2003, he fraudulently married a Canadian citizen for the sole purpose of being sponsored as a permanent resident to Canada. He became a permanent resident in 2007; then divorced in 2008. In 2012, he entered into a bono fide marriage to Ka Kei Tang, a Canadian citizen.
An investigation by the Canada Border Services Agency determined that Fangyun was inadmissible to Canada for fraudulent misrepresentation, and he was issued a removal order. He appealed that decision, seeking special relief on humanitarian and compassionate grounds: Fangyun’s wife was pregnant at the time, and he argued that his deportation would cause undue hardship to his family and would not be in the “best interest” of his child. The Immigration Appeal Division (IAD) denied Fangyun’s appeal, arguing that “…. until there is a live birth there are per se no best interests to take into consideration.”
Fangyun appealed the IAD decision to the Federal Court, asserting that the government had applied the wrong legal test by believing the “best interests of the child” analysis doesn’t apply to unborn children. The Federal Court agreed with Fangyun, stating that: “The clear and reasonable best interests of the child analysis above applies equally to any unborn child. There are no distinguishing factors that would make the case of an unborn or newborn child any different.” In order to ensure that the best interests of the unborn child were served, Fangyun was allowed to remain in Canada.
In his ruling, the judge cited the International Declaration for the Rights of the Child in support of his decision: “…the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth” [my emphasis]. He acknowledged the necessity of “…ensuring that the rights of a child, and by extension those of an unborn child [my emphasis], are considered significantly and profoundly..,” further stating that: “One must always ask oneself: Is one’s decision (in perspective, in anything, and overall) good for children?…recognizing that Canada is a signatory to the United Nations Convention on the Rights of the Child.”
This Federal Court ruling means that governments have a fundamental duty to ensure that the best interests of children – both “born” and “unborn” – are kept paramount when enacting or interpreting laws that may possibly do them harm. The P.E.I. government must therefore abandon its plan to provide unrestricted, free, surgical abortions to Island women. Why? For two legal reasons: firstly, because abortions are never medically required to provide optimal health care to pregnant women and constitute an unwarranted cost to our health care system; and secondly, because abortions never serve “the best interests of children” in that they prematurely end their lives unnecessarily.
The over riding concern for me is the lack of respect paid to the legislation as it exists today. The rules appear to be clear, they appear to be supported by our courts and yet they are being disregarded by our regulators and our elected officials. Where does this end, why is any law followed if we can pick and choose only the ones we like. The media and the “experts” are also very disappointing in their delivery of this issue, once again only choosing the angles which best suit their particular point of view.
If the Federal Court recognizes the interests of the child, both born and unborn, in this landmark decision, then surely the Prince Edward Island Government can see that intentionally allowing a third party to end the life of a preborn child is not in the best interests of the child. This ruling made just one week ago on April 21, 2016 recognizes the importance of the father to the wellbeing of his family and to this child before and after birth. It is incumbent upon all of us to do the same.
And thirdly to ask a fellow citizen to act as executioner (doctor) for the child would, simply put, be barbaric. That’s why in days of old the executioner be it hangman or axeman wore a full hood. Not to protect them from the executed but from those who would know who was doing what they were doing and the associated shame as they were “only doing their job”.