By Sue Careless 
The Interim 

The sudden death of Supreme Court Justice John Sopinka is a blow to the pro-life cause. While not a pro-life advocate, Sopinka, 64, wrote some judgments that were clearly sympathetic to the pro-life and pro-family movement.

In October, Sopinka declared that given modern medical advances, the "born alive" rule to determine legal personhood was outdated. 

In a 7-2 ruling the Supreme Court ruled that nobody can legally interfere with a pregnant woman whose behavior threatens her fetus. The court rejected the idea that a Winnipeg woman addicted to glue sniffing could be forcibly confined and treated in order to protect her unborn child from harm. 

"The only law recognized is that of the born person," reads the majority decision. "Any right or interest the fetus may have remains inchoate and incomplete until the birth of the child." 

‘Legal anachronism' 

Only Sopinka and Mr. Justice John Major disagreed. In their dissenting opinion Sopinka wrote, "The born alive rule is a legal anachronism and should be set aside, at least for the purposes of this appeal." 

Sopinka and Major explained that to safeguard a mother's rights, intervention in her pregnancy should only occur where it was determined that her behavior would cause "serious irreparable harm to the unborn child." 

Sopinka and Major qualified their decision, "... this interference is always subject to the mother's right to end it (the pregnancy) by deciding to have an abortion." 

Still they recognized that, "When a woman chooses to carry a fetus to term, she must accept some responsibility for its well-being, and the state has an interest in trying to ensure the child's health." 

In 1995, Sopinka cast the "swing vote" in the Egan and Nesbit case. James Egan and John Nesbit of Courteney, B.C. challenged the opposite sex definition of "spouse" as it is used in the Old Age Security Act. The court ruled in a 5-4 decision that gay and lesbian couples won't necessarily be entitled to the same federal social benefits as heterosexual couples. 

Sopinka wrote, "It is not realistic for the court to assume that there are unlimited funds to address the needs of all."  Sopinka wrote that he was prepared to uphold the law, "given the fact that equating same sex couples with heterosexual couples, either married or common law, is still generally regarded as a novel concept." 

All nine judges agreed that the Charter prohibits discrimination based on sexual orientation. However, five of the judges, including Sopinka, said that while the law was discriminatory, under the Charter, the infringement was justifiable in a free and democratic society. 

In the 1994 Sue Rodriguez case, Sopinka wrote the majority opinion, upholding the law against assisted suicide: "... since many in the medical profession are opposed to being involved in assisting suicide because it is antithetical to their role as healers of the sick, many doctors will refuse to assist, leaving open the potential for the growth of a macabre specialty in this area reminiscent of Dr. [Jack] Kervokian and his suicide machine." 

Sanctity of life 

In The Three Faces of Law (1996) Ian Hunter writes, "Alone among the Supreme Court judges, Sopinka considers ‘sanctity of life' as a principle of fundamental justice, even referring to a ‘generally held and deeply rooted belief in our society that life is sacred and inviolable; he then quickly adds he means ‘sacred ....in the non-religious sense', citing Dworkin, 1993." 

Hunter who is Professor Emeritus, Faculty of Law at the University of Western Ontario continues, "Sopinka is the only judge who appears to recognize a fundamental distinction between active and passive euthanasia." 

Hunter, who had worked both for and against Sopinka in the courtroom, described him as "a lawyer's lawyer. He was an incredibly tenacious and aggressive litigator and a principled advocate. He was exceptionally bright. He could dissect and get to the heart of the matter. He could ask the right questions to expose the issues." 

Sopinka didn't suffer fools gladly but had a terrific love of laughter. Hunter remembers once when Sopinka dropped into one of his classes at Western. Hunter was teaching the cross-examination of the expert witness. Not only did Sopinka relish demonstrating the procedure, he then invited the whole class out for dinner at his own expense. 

In 1988, after 30 years of trial experience, Sopinka joined Canada's top court. Hunter believes Sopinka would have made an outstanding Chief Justice and would have desired the position because of his sense of public duty. 

How would Sopinka have ruled in the Robert Latimer case should it reach the Supreme Court? Hunter thinks Sopinka would at least have seen the implications for the disabled community. 

"From Regina v. Morgentaler (Jan. 28, 1988), when at the stroke of a judicial pen Canada had no abortion law, to this day, the Supreme Court has reduced moral issues to consumer choices," Hunter told The Interim. "Alone of the judges, the late Mr. Justice Gerard La Forest and Sopinka knew a transcendental element was involved." 

"While it would be dishonest to describe John Sopinka as a pro-life advocate," said Hunter, "the pro-life movement should mourn his passing."