decision Roe v. wade of the United States Supreme Court was overturned by Dobbs v. Jackson Women’s Health Organization, allowing each State to express its preferences regarding termination of pregnancy. Despite reminders that the situation is different in Canada and Quebec, intimate and systemic violence against women still occurs there. Evidenced by a recent judgment of the Superior Court of Quebec having ordered to perform a DNA test on a child in order to establish the paternity of an attacker.
Posted at 10:00 a.m.
The Supreme Court of Canada recognized in the Morgentaler case of 1988 that the Canadian Charter protects a woman’s right to continue or terminate a pregnancy. Abortion was thus decriminalized. The following year, she rendered her decision in the case Daigle c. Tremblay, where Jean-Guy Tremblay wanted to prevent his ex-girlfriend from having an abortion. He asked the courts for an injunction to prevent him from doing so, citing the fetus’ right to life and his right as a “potential father” (a supposed right of veto over his eventual offspring). However, Chantal Daigle had several reasons justifying her choice: Mr. Tremblay had authoritarian, possessive, even violent behavior.
In her opinion, carrying her pregnancy to term would have caused her “irremediable psychological and moral harm” and Mr. Tremblay’s only interest was “to try to maintain his hold on [sa] nobody “.
Mme Daigle was successful in the Supreme Court, which refused to recognize the fetus’s legal personality: as long as it is not born alive and viable, it has no right to life. Mme Daigle thus escaped the obligation to be a mother and Tremblay’s control. If domestic violence evokes physical injuries in the collective imagination, its definition in social sciences is based on “coercive control”, that is, violent and non-violent strategies that aim to deprive the victim of his freedom.
On April 22, 2022, the Superior Court of Quebec ordered that a 2-year-old child be subjected to a DNA test to determine if the plaintiff is the father, when the latter raped the child’s mother at the time. of its design.
The facts are as follows: the plaintiff is convicted in 2020 of sexual assault and assault of the defendant. While incarcerated, he learns that the victim has given birth to a boy; he is convinced that he is the father. He brings an action in order to establish in law a bond of filiation. He submits as evidence the testimony of the mother heard during the criminal proceedings where Mr. pleaded guilty: “It’s been almost two years, I had a little boy because of this event. I kept it because […] that’s the only reason that kept me going. […] I just want to make sure my boy is safe. I don’t want him [l’]approach. He’s my boy, not his. »
Notwithstanding the reluctance of the mother, Monsieur believes he has “the right to know”.
The judgment summarizes the testimony of the defendant as follows: “Essentially, Madame submits to the Court that she does not want Monsieur to be involved in her life, nor in that of the child in any way whatsoever. […] She fears that Monsieur will come to get her child or that he will kidnap her. »
Due to serious and concordant indications that lead to the belief that the child and the plaintiff are genetically linked, the judge orders the DNA test to be carried out.
It justifies its decision by the fundamental right of the child to know its origins – a right recognized in Quebec and international law – which requires “the search for the truth”.
The right to knowledge of origins should not be confused with the effects of filiation. If the DNA test is conclusive, the aggressor will be able to claim his paternity, be registered on the child’s birth certificate and share parental authority with the mother, which binds the parents to each other and the child. for life. The mother could be forced to co-parent with the aggressor at the origin of the pregnancy. All this, allegedly in the name of the interest of the child. (Lawyers will say that she can obtain the disqualification of the father later, by undertaking new proceedings. But she should not have to do so.)
These two examples are illustrative of a greater evil: the decision of April 22 reminds us that the perspective of women in the judicial system is still marginalized, that the latter contributes to reproducing systems of oppression.
In reaction to the Dobbs decision, a troubling phrase was circulating on social media: “Rapies will be able to choose the mother of their children” (my translation). Abortion rights don’t have to be in jeopardy for such a thing to be possible, it seems. The domination of men over women crosses many geographical, temporal and legal borders. Sometimes even in the name of the rights of the fetus and the interest of the child.
Sources:
– A.P. c. L.D., 2000 CanLII 11 381 (CA)
– Daigle c. Tremblay, [1989] 2 RCS 530
– Family law — 22 954, 2022 QCCS 2115
– Dobbs v. Jackson Women’s Health Organization022 US LEXIS 3057
– Isabelle Côté and Simon Lapierre, “Integrating coercive control into domestic violence intervention practices in Quebec”, (2021) 153 Intervention 115
– R.v. Morgentaler, [1988] 1 SCR 30