Montreal Tramways v. Leveille

Supreme Court of Canada, Rinfret, Lamont, Smith, Crocket and Cannon, JJ. May 8, 1933

Source: Dominion Law Reports. Cited [1933] D.L.R. Vol. 4 [1933]

"Reports of all reportable Canadian cases from all the courts of Canada including all decisions of the Supreme Court of Canada and all Canadian decisions of the Privy Council."

[This is basically a torts case dealing with the question of pre-natal injuries. What follows is Justice Lamont's views on the legal rights of unborn children.]

Page 341.

"The rights of an unborn child under the civil law are based on two passages found in the Digest of Justinian, lib. 1, tit. 5, ss. 7 and 26, as follows:--

7. Qui in utero est, perinde ac si in rebus humanis esset custoditur, quotiens de commodis partus quæritur. (An unborn child is taken care of just as much as if it were in existence in any case in which the child's own advantage comes in question.)"

26. Qui in utero sunt, in toto paene iure ciuili intelleguntur in rerum natura esse. (Unborn children are in almost every branch of the [Roman] civil law regarded as already existing.)"

"The Civil Code of Quebec makes provision for the appointment of a curator to the person or to the property of children conceived but not yet born. Arts. 337-8.

"Article 345 reads as follows: -- The curator to a child conceived but not yet born, is bound to act for such child whenever its interests require it; he has until its birth the adiministration of the property which is to belong to it, and afterwards he is bound to render an account of such administration.

"This article practically embodies the Roman Law rule first above quoted.

"Article 608 C.C. reads as follows: -- 608. In order to inherit, it is necessary to be civilly in existence at the moment when the succession devolves; thus, the following are incapable of inheriting:

"1. Persons who are not yet conceived;

"2. Infants who are not viable when born.

"Under this article the right to inherit is made to depend upon civil existence. A conceived but unborn child, therefore, is deemed to have civil existence if subsequently born viable."

End of this fragment of Canadian legal history -- end of this fragment of Canadian