Part of what the SCC discussed was the reliance of the (lower) Court of Appeal on the “chance of life” standard from R. v. Berriman (1854), 6 Cox C.C. 388, to conclude that a fetus becomes a child "when the fetus has reached a stage when, but for some external event or circumstance, it would likely have been born alive." In the Berriman ruling, it is required that the fetus “might have been born alive”, relying upon a "likelihood."
Such vagueness could have been dealt with in a swifter fashion in the failed Motion 312 of MP Stephen Woodworth which was controversially and unceremoniously voted down in the House of Parliment seven months ago. Woodworth's motion sought to discover "what medical evidence exists to demonstrate that a child is or is not a human being before the moment of complete birth?" Apparently, our politicians and some outspoken Canadians prefer the vagueness of the "chance of life" standard from a 19th century court case which predates the inventions of pasteurization, sewing machines, and the rubber tire, rather than looking toward contemporary medical knowledge realized through inventions such as the sonogram and functional MRIs.
My perennial problem with the Supreme Court of Canada is that they are incredibly scared of any infringement on the lack of abortion law in this country. I laud the SCC efforts to make obvious the "unconstitutionally vague" law regarding babies "that were likely have been born alive". But how does this logic work? If the mother had said that she had meant to abort the baby but hadn't gotten around to it, would that mean that the baby was likely to be born dead? Aren't all babies in their mother's womb, babies which are likely to be born alive? Well at least until someone kills them? When will the Supreme Court stop discriminating against gestationally younger babies stop avoiding any discussion of the dreaded "A" word?
Score zero for the SCC, score zero for babies likely to be born dead.