Demers vs. Canada
By Joanne Byfield

In December of 1996, Jim Demers of Nelson, BC, stood outside a Vancouver abortion clinic for three days holding a sign that declared: “Every human being has the inherent right to life. United Nations International Covenant on Civil and Political Rights.” Mr. Demers, father of five and a long-time pro-life activist, did not speak to ensure that police and clinic staff could not accuse him of harassing clients. On the fourth day, he appeared with a new sign, “Every person has the right to have his life respected. This right shall be protected by law, in general, from the moment of conception.  Art. 4-1 American Convention on Human Rights.”  He was arrested and jailed for seven weeks (over Christmas and New Year’s) while awaiting charges for violating the province’s Access to Abortion Services Act.
           
Mr. Demers argued at trial on two charter grounds: the section 2 right to freedom of speech and the section 7 right to life. He was convicted of violating the act because the trial judge found that the “everyone” in the section 7 right to life guarantee did not include unborn children whose mothers wanted an abortion. In two subsequent appeals, the court upheld the earlier decision although the Court of Appeal of British Columbia did acknowledge that the unborn child was a human being. The Supreme Court of Canada refused his request for an appeal in 2003.
           
Now, Mr. Demers has taken his case to the Inter-American Commission on Human Rights. The IAHCR is a body of the Organization of American States (OAS) and its mandate derives from the American Declaration of Human Rights signed in 1948, which posited, among other things, that every human being has the right to life from conception on. If the IAHCR were to hear the case and find in Mr. Demers’ favour, it could issue a denunciation of the conduct of the Canadian government.
           
In March 2004, Mr. Demers filed a petition with the IACHR, based in Washington, asking “for the redress of violations of human rights guaranteed by the American Declaration of the Rights and Duties of Man.” He is asking the commission to register the case and initiate proceedings on its merits. Canada is a signatory to the American Declaration (“American” refers to North and South America, not the United States).
    
He argues that Canada has violated his rights and the rights of unborn children and their mothers under eight articles of the Declaration:

• the right to life (children)
  
• right to equal protection under the law (children)
  
• freedom of expression or and dissemination of ideas (Demers)
  
• right of special protection of women during pregnancy (mothers)
  
• right to participate in the benefits of scientific discoveries (mothers and children)
  
• right to be recognized as a person having rights and obligations (children and mothers)
  
• right to associate with others (Demers)
  
• right to fully form and develop personality (children)

In April 2005 IACHR asked the government of Canada to respond to the charges. The Martin government then asked the IACHR to dismiss the appeal citing a number of technical arguments. Mr. Demers and his lawyer, Jeff Tuomala of Liberty University School of Law in Virginia, dispatched each of these and again urged the IACHR to proceed with his petition.
               
In its response, the Canadian government denied that Mr. Demers' freedom of expression rights had been violated. At each trial level, the courts found that B.C.’s Access to Abortion Services Act did violate the Charter’s section 2 right to free expression but said that the violation was acceptable under the section one clause which limits rights to the extent  “as can be demonstrably justified in a free and democratic society.” Mr. Demers and lawyer Tuomala argue that the rights violations under the B.C. abortion act are not justifiable. They cite both the American Convention on Human Rights and the American Declaration which distinguish between rights on which limitations may be place and rights which allow no derogation (that is, no government can limit these rights.) Mr. Demers argues that under international law, such derogation can only apply in cases of a declared national emergency. No such declaration was ever made.
           
Furthermore, he argues, restricting the right must be done on the basis of the value of the speech in question. We have legal restrictions, for example, on hate speech or obscenity because its value is low or negative. But, if the speech is in defense of a non-derogable right, like the right to life, that speech should not be restricted. If the Canadian courts refuse to acknowledge any value to the life of the unborn child, they are unable to determine the value of the speech defending that right to life. Therefore, he argues, the restriction on his right of free expression under the B.C. Access to Abortion Services Act is not a justifiable restriction.   
           
Mr. Demers is awaiting a response from the IACHR. If the group decides to hear the case, he will need more lawyers, expert witnesses, medical advisors and a great deal of money. He is seeking supporters who can help shoulder the cost of this case. “We may not get another case this good in our lifetime,” says Mr. Demers.

Mr. Demers can be contacted by writing to Jim Demers, c/o Nelson Right to Life Society, Box 324, Nelson, BC  V1L 3Z2.