Case Summary
R. v Morgentaler
R. v Morgentaler
[1988] 1 S.C.R. 30
FACTS
Dr. Henry Morgentaler, Dr. Leslie Franck Smoling and Dr. Robert Scott
(henceforth referred to as the appellants) were all qualified medical
practitioners. Together they set up a clinic to perform abortions for
women. Under s. 251(4) of the Criminal Code, women wishing to have an
abortion were required to obtain a certificate from a therapeutic abortion
committee of an approved hospital. The appellant’s clinic, however, served
women who did not have such a certificate. Furthermore, the appellants
made public statements asserting that women have the free choice to have
an abortion, as well as directly criticizing the abortion laws in Canada.
The appellants were charged with conspiring with one another with the
intent to procure abortions contrary to ss. 423(1)(d) and 251(1) of the
Criminal Code.
LOWER COURTS
The trial proceeded before a judge and jury in which the appellants
were acquitted. The Crown appealed the decision to the Court of Appeal.
The Court allowed the Crown’s appeal, set aside the verdict of acquittal,
and ordered a new trial. The appellants appealed the decision to the
Supreme Court.
ISSUES
The Supreme Court considered seven issues:
- Whether s. 251 of the Criminal Code violates the rights and freedoms
guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Charter.
- If such a violation occurs, whether it is justifiable under s. 1 of
the Charter.
- Whether s. 251 of the Criminal Code is ultra vires the Parliament of
Canada.
- Whether s. 251 of the Criminal Code violates s. 96 of the
Constitution Act, 1867.
- Whether s. 251 of the Criminal Code unlawfully delegates federal
criminal power to provincial Ministers of Health or Therapeutic Abortion
Committees and, as such, whether the Federal Government has abdicated
its authority in this area.
- Whether ss. 605 and 610(3) of the Criminal Code violates the rights
and freedoms guaranteed by ss. 7, 11(d), 11(f), 11(h), and 24(1) of the
Charter.
- If such a violation occurs, whether it is justifiable under s. 1 of
the Charter.
DECISION:
The Supreme Court allowed the appeal and ordered the acquittals
restored (McIntyre and La Forest dissenting.)
Dickson (writing for himself and Lamer) allowed the appeal. He
concluded the following:
- Section 251 violated s. 7 of the Charter.
- Such a violation was not justifiable under s. 1 of the Charter.
- Dickson answered in the negative to issues 3 to 6. No decision was
necessary for issue 7.
Beetz (writing for himself and Estey) wrote a separate concurrence. He
agreed with the results of Dickson but for different reasons.
Wilson wrote a separate concurrence. She agreed with the results of
Dickson but for different reasons.
McIntyre (writing for himself and La Forest) dissented. They concluded
the following:
- Section 251 did not violate s. 7 of the Charter.
- Thus, no decision concerning s. 1 of the Charter was required.
- McIntyre answered in the negative to issues 3 to 6. No decision was
necessary for issue 7.
DECISION REASONS:
Dickson (with Lamer)Section 7 of the Charter
Dickson focused solely upon s. 7 of Charter, and concluded that s. 251
violated s. 7. He therefore did not address ss. 2(a), 12, 15, 27 or 28 of
the Charter.
Dickson asserted that s. 251 violated “security of person” under s. 7.
For him, violation of security of person included, at the minimum, “state
interference with bodily integrity and serious state-imposed stress.”
Section 215 committed such a violation in two ways. First, the section
disallowed women from access to a safe medical procedure, unless they meet
a criteria that is not their own. Second, as women must go through a
process to see if they meet the criteria for a legal abortion, s. 215
delayed women’s access to medical procedures. Such a delay increased
complication and mortality rates during an abortion, as well as having a
psychological impact upon those going through the process.
Dickson further concluded that such a violation of security of person
was contrary to the principles of fundamental justice. For him, one of the
tenets of fundamental justice is that “when Parliament creates a defence
to a criminal charge, the defence should not be illusionary or so
difficult to attain as to be practically illusionary.” Dickson asserted
that a defence under s. 251, that is, the ability to apply for an
exemption from the criminal offence created by the section, was
practically illusionary. The practical operation of the administrative
structures and procedures of the section had the effect of unreasonably
restricting the number of places in which a woman could go to apply for
and receive an abortion. In example, Dickson pointed the requirements
under s. 251 that at least four physicians must be available to authorize
and perform abortions and that accredited abortion hospitals provide
certain services. Such requirements disqualified many hospitals from
authorizing and performing abortions. Consequently, in many areas of the
country, women were effectively denied reasonable access to facilities
that authorized and preformed abortions.
Section 1 of the Charter
Dickson concluded that the violation of s. 7 was not justifiable under
s. of the Charter. Specifically, it failed the proportionality test.
Importance of the objective
For Dickson, the objective of s. 251 was to balance the rights of the
pregnant woman and the foetus, and he concluded that this objective was
of sufficient importance to warrant a Charter infringement.
Proportionality test
Dickson asserted that s. 251 as a means for achieving this objective
failed the proportionality test. By holding out an illusionary defence,
the administrative structures and procedures of the section infringe
upon s. 7 far more than was necessary. Furthermore, the negative effects
of the section were not proportionate to its benefits. The section was
so cumbersome that women’s health were at risk.
Outcome
Dickson concluded that the appeal should be allowed. In sum, s. 251 of
the Criminal Code was in violation of s. 7 of the Charter. Because it
failed the proportionality test, the section could not be saved under s. 1
of the Charter. Dickson answered issues 3 to 5 in the negative without
giving reasons. Regarding issue 6, Dickson agreed with the reasons of
Beetz and answered in the negative. No answer was necessary for issue 7.
CONCURRING REASONS
Beetz (with Estey)Section 7 of the Charter
Beetz agreed with Dickson and Wilson that s. 7 was the primary focus
for a Charter violation in this case. This being the case, Beetz chose not
to address most of the other rights and liberties that had been raised.
Beetz concluded that s. 251 did violate s. 7, but for reasons different
from those given by Dickson.
For Beetz, “security of person” included a right of access to medical
treatment when life or health is in danger, and without fear of criminal
sanction. For Beetz, s. 251 created a situation in which women whose life
and health were in danger due to pregnancy were faced with two choices:
(1) follow the exemption procedure under s. 215, which would lead to
delays in treatment and possible health risks, or (2) secure medical
treatment illegally, which would lead to criminal sanction. By creating
such a choice situation, the legislation led to a situation in which women
facing health risks due to pregnancy were denied timely and legal access
to medical treatment: even though this was their right under s. 7.
Beetz found this violation of security of persons to be contrary to the
principles of fundamental justice. However, such inconsistency was not
because the section created a criteria for lawful abortion, or because it
required an independent medical opinion. Inconsistency, instead, stemmed
from the fact that the administrative structure of the section was made up
of unnecessary rules that created unnecessary risks to the health of
pregnant women. These rules were “unnecessary” because they did not
directly reflect the objective of the legislation, namely, to protect the
rights of the foetus. For example, Beetz pointed to the requirement that
abortions must take place in accredited hospitals. Such a requirement
meant that there were a limited number of facilities for pregnant women to
go to, thus, delaying their access to medical treatment. The objective of
this rule was the safety of the woman rather than the declared objective
of the legislation, which was the protection of the rights of the foetus.
The rule was therefore unnecessary and, because of its effect, was
contrary to the principles of fundamental justice.
Section 1 of the Charter
Beetz concluded that the violation of s. 7 was not justifiable under s.
1 of the Charter because it failed the proportionality test.
Importance of the objective
Beetz agreed with Wilson that the objective of s. 251 was to protect
the rights of the foetus. Furthermore, he concluded that this objective
was of sufficient importance for infringement upon Charter rights.
Proportionality test
However, Beetz asserted that the section failed to survive the
proportionality test: specifically, the first component of the test
which required that the means of the legislation be rationally connected
with its objective. For Beetz, much of s. 251 failed to be rationally
connected to its objective because (as indicated above) it imposed
unnecessary requirements of women who needed an abortion.
Sections 605 and 610(3)
Beetz agreed with the reasons of McIntyre that s. 605 of the Criminal
Code did not violate rights and freedoms under the Charter. Furthermore,
Beetz disagreed with counsel for the appellants that s. 610(3) of the
Criminal Code, which disallowed the awarding of costs in appeals involving
indictable offences, was a violation of the Charter. For Beetz, whatever
the Court’s power to award costs in appeals, such power should not be
exercised in this case, and consequently no ruling on s. 1 of the Charter
in regards to these sections of the Criminal Code was necessary.
Outcome
Beetz concluded that the appeal should be allowed. Section 251 violated
s. 7 of the Charter and was unjustifiable under s. 1. Beetz agreed with
McIntyre on issues 3 to 5, and s. 605 of the Criminal Code. Furthermore,
he did not strike s. 605, asserting that no costs should be awarded to the
appellants. No answer was needed on issue 7.
SEPARATE CONCURRING REASONS
WilsonSection 7 of the Charter
Wilson concluded that s. 251 violated s. 7 of the Charter. For her,
however, the debate did not revolve around the administrative structures
and procedures of the challenged legislation, but rather it directly
engaged the right of a woman to have an abortion.
Wilson concluded that s. 251 violated s. 7 under both its “liberty” and
“security of person” clauses. For Wilson, the right to “liberty” in s. 7
“guarantees to every individual a degree of personal autonomy over
important decisions intimately affecting his or her private life.” She
said that a woman’s decision to terminate her pregnancy (for any reason)
is included within this class of important decisions. However, s. 251
takes such a decision away from women as it enforces a criteria for lawful
abortions that is entirely unrelated to the priorities and preferences of
the pregnant woman. For Wilson, the right to “security of person” in s. 7
“protects both the physical and psychological integrity of the
individual.” Section 251 violates security of the person in that it
subjects women to considerable emotional stress and physical risk. In
addition, it creates a situation in which the state, not the individual,
controls a woman’s capacity to reproduce, and this constitutes a direct
interference with the woman’s physical person.
Wilson concluded that such a violation was contrary to the principles
of fundamental justice. For her, the “principles of fundamental justice”
in s. 7 included both procedural justice and the other rights and freedoms
laid down in the Charter. The violation of s. 251 is also contrary to the
principles of fundamental justice because it also violates s. 2(a) of the
Charter, specifically, freedom of conscience and religion. The decision
whether or not to terminate a pregnancy (for any reason) falls, for
Wilson, under freedom of conscience. Thus to deny such a decision, as the
challenged section does, is it to deny freedom of conscience and, as a
necessary implication, is contrary to the principles of fundamental
justice.
Section 1 of the Charter
Wilson concluded that the s. 7 violation could not be justified under
s. 1 of the Charter. Specifically, it failed the proportionality test.
Importance of the objective
For Wilson, the primary objective of s. 251 was the protection of the
rights of the foetus. Furthermore, such an objective was of sufficient
importance to warrant a Charter violation.
Proportionality test
The challenged section failed the proportionality test: specifically,
the minimal impairment component. The foetus should only be viewed as
potential life until the later stages of pregnancy. However, because s.
251 infringed upon s. 7 throughout a woman’s pregnancy, it did not
impair the woman’s right as little as possible.
Outcome
Wilson concluded that the appeal should be allowed. Section 251
violated s. 7 and was not justifiable under s. 1 of the Charter. Wilson
agreed with Beetz on issues 3 to 6. No decision was necessary for issue 7.
DISSENTING REASONS
McIntyre (with La Forest)Section 7 of the Charter
McIntyre concluded that s. 251 did not violate s. 7 of the Charter. For
McIntyre, s. 7 must be interpreted in accordance with the values and
traditions of society as expressed through the legislatures. The Court did
not have the exclusive right to decide the substance of s. 7 (what rights
the section protects.) Instead, the Court only has the capacity to ensure
that those rights declared by the legislatures to be important are
protected. Furthermore, for McIntyre, apart from the provisions of s. 251
that allow women to have an abortion in circumstances when their health or
life is at risk, no right of abortion can be found in Canadian law, custom
or tradition. This included the provisions of the Charter. Historically,
there has been a clear public interest in the protection of the foetus,
and this was the primary objective of s. 251. McIntyre concluded that s. 7
did not include the right to have an abortion, and in the absence of such
a right, s. 251 could not be in violation of s. 7.
In addition, McIntyre concluded that no breach of the principles of
fundamental justice occurred. Disagreeing with Dickson, McIntyre asserted
that s. 251 did not deprive women of a defence. For McIntyre, the
challenged section did respond sufficiently to the needs of women who
needed abortions: the statutory provisions in themselves provided adequate
opportunity. In regards to the practical operation of s. 251, he argued
that the legislation itself could not be held responsible for
inefficiencies, and the challenged legislation could not be struck down on
such grounds.
Federal Jurisdiction
McIntyre concluded that s. 251 was within federal jurisdiction. He
agreed with the Ontario Court of Appeal that the challenged legislation
was not for the protection of health and therefore it was not within
provincial competence in such a way as to preclude federal legislation.
Section 96
McIntyre concluded that s. 251 did not violate s. 96 of the
Constitution Act, 1867. He agreed with the reasons of the Ontario Court of
Appeal that s. 251 did not assign to therapeutic abortion committees
powers that at the time of Confederation had belonged to county, district
and superior courts.
Unlawful Delegation and Abdication of the Criminal Law Power
McIntyre concluded that s. 251 did not represent an unlawful delegation
and abdication of federal legislative power, in general agreeing with the
reasons of the Ontario Court of Appeal on this issue.
Section 605 and 610(3)
McIntyre agreed with the reasons of the Ontario Court of Appeal on the
issue of whether ss. 605 and 610(3) of the Criminal Code violated rights
and freedoms under the Charter. The Court of Appeal asserted that if such
a violation did occur, it would be justifiable under s. 1 of the Charter.
Outcome
McIntyre concluded that the appeal should be dismissed. Section 251 did
not violate s. 7 because the latter section did not include the right to
abortion. Furthermore, s. 251 was not contrary to the principles of
fundamental justice because it could not be held responsible for its
operational inefficiencies. In regards to the other issues before the
Court, McIntyre answered in the negative.
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