| R. v. Morgentaler |
Supreme Court of Canada Supreme Court of Canada Building, August 2004, Ottawa, ON, CDN, File history Legend: (cur) = this is the current file, (del) = delete this old version, (rev) = revert to this old version. ...
| Argued October 7 - 10, 1986
Decided January 28, 1988 | | Full case name: | Dr. Henry Morgentaler, Dr. Leslie Frank Smoling and Dr. Robert Scott v. Her Majesty The Queen | | Citations: | [1988] 1 S.C.R. 30; 1988 CanLII 90 (S.C.C.); (1988), 63 O.R. (2d) 281; (1988), 37 C.C.C. (3d) 449; [1988] 31 C.R.R. 1; (1988), 62 C.R. (3d) 1; (1988), 26 O.A.C. 1 | | Prior history: | Judgment for the Crown in the Ontario Court of Appeal. | | | Holding | | Section 251 of the Criminal Code violates a woman's right to security of person under section 7 of the Canadian Charter of Rights and Freedoms and cannot be saved under section 1 of the Charter. | | Court membership | | | | Case opinions | | Majority by: Dickson | | Joined by: Lamer | | Majority by: Beetz | | Joined by: Estey | | Majority by: Wilson | | Dissent by: McIntyre | | Joined by: La Forest | | R. v. Morgentaler [1988] 1 S.C.R. 30 was a decision of the Supreme Court of Canada wherein the abortion provision in the Criminal Code was found to be unconstitutional, as it violated a woman's right under section 7 of the Canadian Charter of Rights and Freedoms to "security of person". Ever since this ruling, there are no laws regulating abortion in Canada The Ontario Court of Appeal is headquarted in downtown Toronto, in historic Osgoode Hall. ...
The Right Honourable Robert George Brian Dickson, PC , CC , CD , LL.B , LL.D (May 25, 1916 – October 17, 1998) was appointed Chief Justice of Canada on April 18, 1984. ...
The Honourable Mr. ...
The Honourable Mr. ...
The Honourable William Rogers McIntyre (born March 15, 1918) is a retired Canadian Puisne Justice of the Supreme Court of Canada. ...
The Right Honourable Antonio Lamer, PC , CC , CD , LL.D , D.U., (born July 8, 1933 in Montreal, Quebec, Canada). ...
Bertha Wilson (born September 18, 1923) is a retired Canadian jurist and was a Puisne Justice of the Supreme Court of Canada. ...
The Honourable Gérard Vincent La Forest (born April 1, 1926) was a Puisne Justice of the Supreme Court of Canada from January 16, 1985 to September 30, 1997. ...
// Case citation is the system used in common law countries such as the United States, England and Wales, Canada, New Zealand, Australia and India to uniquely identify the location of past court cases in special series of books called reporters or law reports. ...
The Supreme Court of Canada (French: Cour suprême du Canada) is the highest court of Canada and is the final court of appeal in the Canadian justice system. ...
The Canadian Criminal Code (formal title An Act respecting the Criminal Law) is the codification of most of the criminal offences and procedure in Canada. ...
Diverse women. ...
Section Seven of the Canadian Charter of Rights and Freedoms protects an individuals autonomy and personal legal rights from actions of the government. ...
The Charter, signed by Prime Minister Pierre Trudeau in 1981. ...
Security of person is a right guaranteed by the Universal Declaration of Human Rights, adopted by the United Nations in 1948. ...
Abortion in Canada is not limited by law. ...
Background Prior to this ruling, section 251 of the Criminal Code, as it was then, now found under section 287, allowed for abortions to be performed at only accredited hospitals with the proper certification of approval from the hospital's Therapeutic Abortion Committee. A physician visiting the sick in a hospital. ...
See also: main article on Abortion in Canada In Canada, from 1969 until 1988, under the amendment to Section 251 (later 287) of the Criminal Code of Canada one of the requirements for an abortion to be lawful was that it be ruled to be medically necessary to the health...
Three doctors, Dr. Henry Morgentaler, Dr. Leslie Frank Smoling and Dr. Robert Scott, set up an abortion clinic in Toronto for the purpose of performing abortions on women who had not received certification from the Therapeutic Abortion Committee, as required under section 251(4) of the Criminal Code. In doing so they were attempting to bring public attention to their cause, claiming that a woman should have complete control over the decision on whether to have an abortion. Henry Morgentaler, M.D., LL.D. honourary (born March 19, 1923, in Lodz, Poland) is a Canadian medical doctor and long time abortion activist from Montreal. ...
An abortion clinic is a medical facility providing certain kinds of outpatient medical care, including abortions, to women. ...
Morgentaler had previously challenged the abortion law at the Supreme Court in the pre-Charter case of Morgentaler v. The Queen, [1976] 1 S.C.R. 616 in which the Court denied having the judicial authority to strike down the law. Morgentaler v. ...
The Ontario Court of Appeal found in favour of the government. On appeal, the main issue put before the Court was whether section 251 violated section 7 of the Charter. A secondary issue put to the Court was whether the creation of anti-abortion law was ultra vires ("outside the power") of the federal government's authority to create law. The Ontario Court of Appeal is headquarted in downtown Toronto, in historic Osgoode Hall. ...
Ultra vires is a Latin phrase that literally means beyond the power. ...
Ruling The Court ruled 5 to 2 that the law violated section 7 and could not be saved under section 1 despite the fact that it was not beyond the authority (ultra vires) of government to create such a law. However, there were three different opinions given by the majority, none having achieved more than two signatures. As such, no Morgentaler precedent is binding. Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. ...
Dickson Perhaps the most prominent majority opinion was that of Dickson C.J., with Lamer J. (as he was then known) concurring. Dickson began by examining section 7. He found that section 251 forced some women to carry a fetus irrespective of her own "priorities and aspirations." This was a clear infringement of security of person. He found a further violation due to the delay created by the mandatory certification procedure which put the women at higher risk of physical harm and caused harm to their psychological integrity. The Right Honourable Robert George Brian Dickson, PC , CC , CD , LL.B , LL.D (May 25, 1916 – October 17, 1998) was appointed Chief Justice of Canada on April 18, 1984. ...
The Right Honourable Antonio Lamer, PC , CC , CD , LL.D , D.U., (born July 8, 1933 in Montreal, Quebec, Canada). ...
Fetus at eight weeks For other uses, see Fetus (disambiguation). ...
Following standard section 7 analysis, Dickson examined whether the violation accorded with the principles of fundamental justice. He found that it did not as the excessive requirements prevented smaller hospitals from providing such services thus preventing many women from even applying for certification. Moreover, he claimed that the administrative system failed to provide adequate evaluation criteria which allowed the committees to grant or deny theraputic abortions almost arbitrarily at times. Fundamental justice is a term in Canadian administrative law that signifies those basic procedural rights that are afforded anyone or anybody facing an adjudicative process or procedure that affects fundamental rights. ...
Dickson found that the violation could not be justified under section 1, focusing on the means chosen by the government to achieve its objectives. In the end, the law failed on every step of the proportionality test. First, he found the administrative process was often unfair and arbitrary. Second, the resultant impairment of the women's rights was way beyond what was necessary to evaluate their case. Third, the effect of the impairment far outweighted the importance of the law's objective. The Oakes test is applied by courts in Canada when any legislation is found to infringe upon rights guaranteed by the Canadian Charter of Rights and Freedoms. ...
Beetz Beetz J., joined by Estey, wrote a second opinion finding the abortion law invalid. In it, Beetz noted that by adopting section 251(4), the government acknowledged that the interest of the state to protect the woman is greater than its interest to protect the fetus when "the continuation of the pregnancy of such female person would or would be likely to endanger her life or health". The Justice's reasoning closely resembled that of the Chief Justice. He found a violation of section 7 as the procedural requirements of section 251 were "manifestly unfair".
Beetz reasoning in the section 1 analysis was also similar to that of Dickson. He found that the objective had no rational connection to the means, thus the law cannot be justified. He also speculated that if the government were to enact a new abortion law, this law would require a higher degree of danger to the woman in the later months rather than the early months for an abortion to be allowed. In this case it could be sufficiently justifiable under section 1.
Both opinions notably omit any analysis of whether the fetus had any rights protected by the Charter.
In examining whether the law was ultra vires, Beetz examine section 91 and 96 of the Constitution Act, 1867. He decided that the law was within the power of the federal government on account that the committee was not given any power over any provincial jurisdiction under section 91 nor did it function in any sort of judicial manner under section 96. The Constitution Act, 1867 (formerly called the British North America Act, 1867, and still known informally as the BNA Act), comprises a major part of Canadas constitution. ...
Wilson Wilson J. wrote her own concurring opinion taking a significantly different approach. In it she decided that section 251 violates all three rights: life, liberty, and security of person. She emphasized how section 251 violated a woman's personal autonomy by preventing her from making decisions affecting her and her fetus' life. To Wilson, the women's decision to abort her fetus is one that is so profound on so many levels that goes beyond being a medical decision and becomes a social and ethical one as well. By removing the women's ability to make the decision and giving it to a committee would be a clear violation of their liberty and security of person. Wilson scathingly noted that the state is effectively taking control of a woman's capacity to reproduce. Bertha Wilson (born September 18, 1923) is a retired Canadian jurist and was a Puisne Justice of the Supreme Court of Canada. ...
Wilson goes on to agree with the other Justices that section 7 (prohibiting the performance of an abortion except under certain circumstances) is procedurally unfair, adding that the violation of section 7 also has the effect of violating section 2(a) of the Charter (freedom of conscience) in that the requirements for a woman to be permitted to obtain an abortion legally (or for a doctor to legally perform one) were in many cases so onerous or effectively impossible that they were "resulting in a failure to comply with the principles of fundamental justice." The decision to abort is primarily a moral one, she notes, and thus by preventing her from doing so violate a woman's right to conscientiously-held beliefs. With the abortion law, the government is supporting on conscientiously-held belief at the expense of another, and in effect, treats women as a means to an end, depriving them of their "essential humanity". The Canadian Charter of Rights and Freedoms. ...
Freedom of thought (also called freedom of conscience) is the freedom of an individual to hold a viewpoint, or thought, regardless of anyone elses view. ...
She also stated that
| | The decision whether to terminate a pregnancy is essentially a moral decision, a matter of conscience. I do not think there is or can be any dispute about that. The question is: whose conscience? Is the conscience of the woman to be paramount or the conscience of the state? I believe, for the reasons I gave in discussing the right to liberty, that in a free and democratic society it must be the conscience of the individual. | | In her analysis of section 1, Wilson notes that the value placed on the fetus is proportional to its stage of gestation and the legislation must take that into account. However, here, the law cannot be justified as the law takes the decision-making power away from the woman absolutely, thus cannot pass the proportionality test. Image File history File links Cquote1. ...
Image File history File links Cquote2. ...
Dissent A dissent was written by McIntyre J. with La Forest J. concurring. McIntyre finds that there is no right to abortions in section 7 nor any other laws. His argument is based on the role of judicial review and how the Courts must not go about creating rights not explicitly found in the Charter nor interpret Charter rights to protect interests that the rights were not initially intending to protect. Nowhere in any constitutional texts, history or philosophies is there support for any such rights. Furthermore, there is no societal consensus that these interests should be protected either. Judicial review is the power of a court to review a law or an official act of a government employee or agent for constitutionality or for the violation of the person. ...
Even if a right could be found, says McIntyre, the case would not have been sufficient to prove a violation. The provisions of section 251(4) cannot be said to be "manifestly unfair" on the basis that some women do not have access. The problems with administrative procedure are external to the legislation and cannot be the basis of a violation.
Aftermath The law was struck down as unconstitutional and Morgentaler's conviction was overturned. An attempt to pass a new abortion law was defeated in the Senate on a tie vote, leaving Canada without legislation governing abortion. Succeeding governments have avoided the controversial issue. The Senate of Canada (French: Le Sénat du Canada) is a component of the Parliament of Canada, along with the Sovereign (represented by the Governor General) and the House of Commons. ...
Academics have since noted that the government could potentially reinstate the abortion law only if it could overcome the "manifest unfairness" created the administrative procedure.
The case has often since been compared to the US case of Roe v. Wade, 410 U.S. 113 (1973),. However, the decision in Morgentaler is actually much closer in terms of the issues to the decision (also in 1973) of the U.S. Supreme Court in Doe v. Bolton 410 U.S. 179, than to those in Roe. Holding Texas laws criminalizing abortion violated womens Fourteenth Amendment right to choose whether to continue a pregnancy. ...
Doe v. ...
// Case citation is the system used in common law countries such as the United States, England and Wales, Canada, New Zealand, Australia and India to uniquely identify the location of past court cases in special series of books called reporters or law reports. ...
While the Morgentaler decisions failed to resolve the issue, in the later case of Daigle v. Tremblay (1989), it was found that the fetus is not a person in common law or in Quebec statutes. Holding A fetus does not have a right to life under the Quebec Charter of Human Rights and Freedoms or the Civil Code of Quebec Court membership Case opinions Tremblay v. ...
This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ...
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See also This is a chronological list of notable cases decided by the Supreme Court of Canada from Brian Dicksons rise to Chief Justice of Canada to his retirement. ...
External links - Full text of Supreme Court of Canada decision at LexUM
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