R. v. Morgentaler
On January 28, 1988, the Supreme Court of Canada (S.C.C.) gave its decision in R. v. Morgentaler.[1] While a criminal law case, Morgentaler examined women’s rights in the context of the Charter of Rights and Freedoms.[2] This decision ranks with the Persons case in its significance regarding the definition of Canadian women’s constitutional rights. In the Persons case, the United Kingdom’s Judicial Committee of the Privy Council, then Canada’s highest court of appeal, ruled that women could be summoned for appointment to the Senate, as they were “qualified persons” defined under the relevant legislation.[3] In Morgentaler, the federal government’s criminal legislation governing abortions was ruled unconstitutional. Women had the same control of their bodies as did men.
Morgentaler and his two co-accused, were licensed physicians who ran a clinic providing abortion services to women. The relevant former provision of the Criminal Code[4]- section 251 (4) - required that abortions first be approved by a therapeutic abortion committee at an accredited or approved of hospital. The procedure had to occur at that hospital. All three physicians were opposed to the legislative regime prescribed by Parliament and had opened their clinic in defiance of the law. They were then charged with procuring abortions under the relevant provisions of the Code: 423(1)(d) and 251(1). Before they entered their pleas, the doctors asked the trial court to quash the charges on the argument that they infringed sections 2(a), 7, and 12 of the Charter which read:
2(a). Everyone has the following fundamental freedoms: freedom of conscience and religion.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice; and
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
The doctors argued that they were:
- not being allowed to follow their consciences under section 2;
- were being prosecuted under laws that were too vague, which deprived them of fundamental justice; and that
- women being denied an abortion were being subjected to cruel and unusual punishment, as the regulatory scheme developed under the Code had the net effect of denying them the right to the medical procedure they wanted[5].
The government argued that the doctors had broken the law – plain and simple. The trial judge refused to quash the charges at a preliminary stage saying it would be impossible to make a decision without hearing evidence and ordered the doctors to present evidence to back up their claims at trial.[6] The matter went to trial before a jury and all three accused were acquitted. As is customary, the jury did not give reasons for its decision. The government appealed.
The Ontario Court of Appeal ordered a new trial. It noted that the provision of the Criminal Code regulating abortions was over one hundred years old, and preceded the Charter by eighty years. It did not accept the argument that the right to procure an abortion on demand was steeped in Canadian tradition; rather, abortions were historically governed by law. Hence section 7 of the Charter was not offended.[7] The appeal court also did not find a breach of the Charter’s section 2 – the right to fundamental justice. It noted that Parliament was given the legal ability to govern every Canadian’s behaviour, and that, as with the challenges to other sections of the Criminal Code, there was no breach of the fundamental right to justice. The Court mentioned that laws regarding the forbidding of sex with children had been upheld as an example of a law that could be upheld because it protected public morals?[8] Here the accused had the right to a fair trial, and the right to appeal the results. Accordingly there was no breach of section 2.
The appeal court also considered section 12 of the Charter - the right not to be subjected to any cruel and unusual treatment or punishment. Women and doctors could choose to either obey the laws of Canada, or not. The court noted that if they chose to break the law, they had to accept the consequences. The consequences prescribed by Parliament for breaking the law were not out of line with any other Canadian laws.[9] The court also agreed to address the following question (which had not been argued at trial):
Is section 251 [the relevant abortion provision] “inconsistent” with sections 15, 27, and 28 of the Charter[10]?
The guarantees of equality, equal benefit, and equal protection under the Charter were not offended. The court ruled that there was no evidence that this law created or induced any inequalities. The court did note that there appeared to be inequalities as to the way in which the law applied to individuals in that different provinces had developed different procedures for allowing abortions, but felt that it was up to Parliament to sort out those inconsistencies.[11] It should be noted that a number of points of criminal procedure were considered in this decision, but they will not be dealt with here. The decision was appealed to the S.C.C.
The S.C.C. issued a 5-2 decision striking down the abortion provision of the Criminal Code as being unconstitutional.[12] The court asked itself seven questions, each answered by the judges involved.
1. Does section 251 [the abortion provision] of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by sections 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms?
Judges Dickson (Chief Justice) and Lamer replied: Yes -
State interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitutes a breach of security of the person. Section 251 clearly interferes with a woman's physical and bodily integrity. Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and thus an infringement of security of the person. A second breach of the right to security of the person occurs independently as a result of the delay in obtaining therapeutic abortions caused by the mandatory procedures of s. 251 which results in a higher probability of complications and greater risk. The harm to the psychological integrity of women seeking abortions was also clearly established Any infringement of the right to life, liberty and security of the person must comport with the principles of fundamental justice.[13]
Judges Beetz and Estey replied: Yes –
Security of the person” within the meaning of s. 7 of the Charter must include a right of access to medical treatment for a condition representing a danger to life or health without fear of criminal sanction. If an act of Parliament forces a pregnant woman whose life or health is in danger to choose between, on the one hand, the commission of a crime to obtain effective and timely medical treatment and, on the other hand, inadequate treatment or no treatment at all, her right to security of the person has been violated.[14]
Judge Wilson replied: Yes -
Section 251 of the Criminal Code takes a personal and private decision away from the woman and gives it to a committee which bases its decision on "criteria entirely unrelated to [the pregnant woman's] own priorities and aspirations". Section 251 also deprives a pregnant woman of her right to security of the person under s. 7 of the Charter. This right protects both the physical and psychological integrity of the individual. Section 251 is more deeply flawed than just subjecting women to considerable emotional stress and unnecessary physical risk. It asserts that the woman's capacity to reproduce is to be subject, not to her own control, but to that of the state. This is a direct interference with the woman's physical “person.”[15] She went onto state that Section 2 of the Charter had also been violated in that the freedom to choose one’s destiny was an individual freedom allowing any person to follow one’s conscious.
Judges McIntyre and La Forest (Dissenting): No –
They ruled that there was no right of abortion in Canada[16]. Thus there was no Charter breach. In their opinion the doctors had broken the law and a new trial should have been ordered[17].
2. If section 251 of the Criminal Code of Canada infringes or denies the rights and freedoms guaranteed by sections 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms, is section 251 justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?
Judges Dickson (Chief Justice) and Lamer: Section 251 could not be saved as a result of their answer to question 1. The way in which the law was worded and enforced was a major breach of women’s Charter rights. Hence, the abortion provision was void.[18]
Judges Beetz and Estey replied: Section 251 could not be saved as a result of their answer to question 1. The way in which the law was worded and enforced was a major breach of women’s Charter rights. Hence, it was void.[19]
Judge Wilson replied: Section 251 could not be saved as a result of her answer to question 1. The way in which the law was worded and enforced was a major breach of women’s Charter rights. Hence, it was void.[20]
Judges McIntyre and La Forest (Dissenting). No. They would have upheld the law. It was Parliament’s decision to make the law, and up to Parliament to change it.
3. Is section 251 of the Criminal Code of Canada ultra vires [beyond the powers of] the Parliament of Canada?
Judges Dickson (Chief Justice), Lamer, Beetz, Estey, and Wilson: Did not answer this question, as a result of their answers to questions 1 and 2.
Judges McIntyre and La Forest (Dissenting). No. Parliament had the legal ability to pass this law.
4. Does section 251 of the Criminal Code of Canada violate section 96 of the Constitution Act, 1867?
None of the Judges dealt with this question as the result of their reasoning above.
5. Does section 251 of the Criminal Code of Canada unlawfully delegate federal criminal power to provincial Ministers of Health or Therapeutic Abortion Committees, and in doing so, has the Federal Government abdicated its authority in this area?
None of the Judges dealt with this question as the result of their reasoning above.
6. Do sections 605 and 610(3) of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by sections 7, 11(d), 11(f), 11(h) and 24(1) of the Canadian Charter of Rights and Freedoms?
None of the Judges dealt with this question as the result of their reasoning above.
7. If sections 605 and 610(3) of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by sections 7, 11(d) 11(f), 11(h) and 24(1) of the Canadian Charter of Rights and Freedoms, are sections 605 and 610(3) justified by section 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?[21]
None of the Judges dealt with this question as the result of their reasoning above.
The overall result was that Canada’s laws regulating abortions were struck down. To date (2008), they have not been replaced.
[1] R. v. Morgentaler. [1988] 1 S.C.R. 30 [Morgentaler], <http://www.canlii.org/en/ca/scc/doc/1988/1988canlii90/1988canlii90.html>.[2] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11. [Charter], <http://www.canlii.ca/en/ca/const/const1982.html>.[3]Edwards v. Canada (Attorney General) [1930] A.C. 124.[4] Criminal Code, R.S.C. 1985, c. C-46 [Code].[5] R. v. Morgentaler, [1984] 41 C.R. (3d) 193 (Ontario Supreme Court, High Court of Justice), para 12.[6] Ibid, para 25.[7] R. v. Morgentaler, [1985] 48 C.R. (3d) 1 (ON C.A.) at 60.[8] Ibid. at 77.[9] Ibid. at 103-5.[10] Ibid. at 106.[11] Ibid. at 109.[12]Morgentaler, supra note 1.[13] Ibid. at 32-33, 56-57 and 73.[14] Ibid. at 34, 35, 81, 90, and 105.[15] Ibid. at 7 and 157.[16] Ibid. at 39.[17] Ibid. at 154.[18] Ibid. at 74.[19] Ibid. at 122.[20] Ibid. at 180.[21] Ibid. at 31-32.