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R. v. Morgentaler
1988 CarswellOnt 45
Supreme Court of Canada
January 28, 1988


Appeal allowed; s. 251 of the Criminal Code held unconstitutional; acquittal restored.

(a) Section 251 of the Criminal Code infringes s. 7 of the Charter.

Per Dickson C.J.C. (Lamer J. concurring)

Section 251 of the Criminal Code impairs the security of the person. State interference with bodily integrity, and serious state-imposed psychological stress, at least in the criminal law context, constitute a breach of security of the person. It was not necessary to decide whether the right extended further, to protect either interests central to personal autonomy, such as a right to privacy, or interests unrelated to criminal justice. Here, s. 251 clearly interfered with a woman's bodily integrity in both a physicial and an emotional sense. Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she met certain criteria unrelated to her own priorities and aspirations was a profound interference with a woman's body. Further, the delay in obtaining therapeutic abortions caused by the mandatory procedures of s. 251 was itself an infringement of the purely physical aspect of the individual's right to security of the person. The evidence showed that the delays involved a clear risk of damage to the physical well-being of a woman and also to her psychological integrity.

The procedures created in s. 251 of the Criminal Code for obtaining a therapeutic abortion do not comport with the principles of fundamental justice. It was not necessary to determine whether s. 7 also contains a substantive content leading to the conclusion that, in some circumstances at least, the deprivation of a pregnant woman's right to security of the person can never comport with fundamental justice. The principles of fundamental justice are to be found in the basic tenets of the Canadian legal system. One of the basic tenets of the system of criminal justice is that, when Parliament creates a defence to a criminal charge, the defence should not be illusory, or so difficult to attain as to be practically illusory. Here, the administrative structures and procedures established by s. 251 concerning therapeutic abortion committees, the accreditation or approval of hospitals and the restrictive criteria of certain committees would in many circumstances make the defence in s. 251(4) practically unavilable to women who would prima facie qualify, or at least would force such women to travel great distances at substantial expense and inconvenience.

Per Beetz J. (Estey J. concurring)

"Security of the person" within the meaning of s. 7 of the Charter entrenches 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, as here, forces a pregnant woman whose life or health is in danger to choose between 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. According to the evidence, the procedural requirements of s. 251 of the Criminal Code significantly delay pregnant women's access to medical treatment, resulting in an additional danger to their health, thereby depriving them of their right to security of the person. This deprivation does not accord with the principles of fundamental justice. While Parliament is justified in requiring a reliable, independent and medically sound opinion as to the life or health of the pregnant woman in order to protect the state interest in the foetus, and while any such statutory mechanism will inevitably result in some delay, certain of the procedural requirements of s. 251 of the Criminal Code, such as the rule that therapeutic abortions must take place in an eligible hospital, were nevertheless manifestly unfair. They were unnecessary in respect of Parliament's objectives in establishing the administrative structure and resulted in additional risks to the health of pregnant women.

Per Wilson J.

Section 251 of the Criminal Code, which limits the pregnant woman's access to abortion, violates her right to life, liberty and security of the person within the meaning of s. 7 of the Charter in a way which does not accord with the principles of fundamental justice. The right to "liberty" contained in s. 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting his or her private life. Liberty in a free and democratic society does not require the state to approve such decisions, but it does require the state to respect them. A woman's decision to terminate her pregnancy falls within this protected class of decisions, as it will have profound psychological, economic and social consequences for her. It is a decision that deeply reflects the way the woman thinks about herself and her relationship to others and to society at large. It is not just a medical decision; it is a profound social and ethical decision as well. The right to reproduce or not to reproduce is properly perceived as an integral part of a modern woman's struggle to assert her dignity and worth as a human being. Section 251 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 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 the 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".

This violation of s. 7 is not in accordance with the principles of fundamental justice, since it is not in accord with procedural fairness and furthermore offends freedom of conscience, guaranteed in s. 2(a) of the Charter. The decision whether to terminate a pregnancy is essentially a moral decision, a matter of conscience. In a free and democratic society, freedom of conscience and religion should be broadly construed to extend to conscientiously-held beliefs, whether grounded in religion or in a secular morality. Here, the legislation, by making it a criminal offence for the pregnant woman to exercise one of her options, was not only endorsing but also enforcing, on pain of a further loss of liberty through actual imprisonment, one conscientiously-held view at the expense of another. To deny freedom of conscience to some, to treat them as a means to an end, was to deprive them of their essential humanity.

Per McIntyre J. (dissenting) (La Forest J. concurring)

Save for the provisions of the Criminal Code, which permit abortion where the life or health of the woman is at risk, no right of abortion can be found in Canadian law, custom or tradition. The Charter, including s. 7, creates no further right, and s. 251 of the Criminal Code does not violate s. 7 of the Charter.

The power of judicial review of legislation has acquired greater scope under the Charter, but that scope is not unlimited. The courts must not, in the guise of interpretation, postulate rights and freedoms which do not have a firm and reasonably identifiable base in the Charter. Here, the task of the court was not to seek to solve the abortion issue, but simply to measure the content of s. 251 against the Charter. A court is not entitled to define a right in a manner unrelated to the interests which the right was meant to protect.

The proposition that women enjoy a constitutional right to have an abortion is devoid of support in the language of s. 7 of the Charter or of any other section, in the history of the constitutional text or in the history, traditions and underlying philosophies of Canadian society concerning abortion, which have not favoured a general right to abortion in Canada.

A constitutional right under s. 7 to be free from any state interference with bodily integrity and serious state-imposed psychological stress would have to be based on something more that the mere imposition, by the state, of such stress and anxiety. A breach of the right would have to be based upon an infringement of some interest which would be of such a nature and such importance as to warrant constitutional protection. This would be limited to cases where the state action complained of, in addition to imposing stress and strain, also infringed another right, freedom or interest which was deserving of protection under the concept of security of the person. The right to have an abortion is not such an interest.

A defence created by Parliament can be said to be illusory, or practically so, only when the defence is not available in the circumstances in which it is held out as being available. The very nature of the test assumes, of course, that it is for Parliament to define the defence and, in so doing, to designate the terms and conditions upon which it may be available. Here, Parliament had set out a circumscribed and narrow defence, and there was no evidence to support the proposition that significant numbers of those who met the conditions imposed in s. 251 of the Criminal Code were denied abortions. That many women seeking abortions had been unable to get them in Canada because s. 251(4) failed to respond to the need for abortions on a wider basis could not serve as an argument supporting the claim that s. 251(4) was procedurally unfair.


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