r_v_morgentaler_(edited)

You be the Judge: R. v Morgantaler

Name: John YoonTeacher: Mr. McKinley Course: CLN4U_Canadian and International Law

What was the law or section of the constitution at issue in the case?

Section 251 of the Criminal Code of Canada was at issue in R. v Morgantaler

What was the act or situation (the crime or conflict) that instigated the legal proceedings?

The situation that led to the Supreme Court judgment on Dr. Morgantaler occurred in the City of Toronto in 1983. Doctors Leslie Frank Smoling, Robert Scott and Henry Morgantaler were arrested in their Toronto abortion clinic for violating Section 251 of the Criminal Code of Canada. Section 251 states that conducting an abortion was illegal unless it met certain conditions such as that it was conducted by a doctor, carried out in an hospital and “previously approved by a therapeutic abortion committee consisting of at least three doctors”. The doctors had acted in flagrant violation of Section 251 by illegally providing abortion services at their Toronto abortion clinic.

What are the processes and decisions the case went through (in lower courts) to arrive at the Supreme Court?

From 1977-1983, Morgentaler acts in violation of sections 251 of the Criminal Code by establishing abortion clinics in Winnipeg, Quebec and Toronto. Morgentaler is arrested in 1983 (arrest is explained in greater detail in the second question). In 1984, Morgentaler and his colleagues are acquitted of all charges put forth against them. The Attorney General of Ontario and the Crown chooses to appeal this acquittal to the Ontario Court of Appeal. The Ontario Court of Appeal invalidates the acquittal of Morgentaler and his colleagues and orders a new trial to be held. Dr. Morgentaler chooses to appeal to the Supreme Court of Canada. In 1988, The Supreme Court votes 5-2 in declaring Section 251 of the Criminal Code to be unconstitutional according to the Supreme Court, Section 251 was found to infringe on the rights outlined in Section 7 of the 1982 Canadian Charter of Rights and Freedoms.

Research and find the opinions of credible journalists or authors or a legal experts on the case and summarize their opinions.

National Post: Author: Kelly McParlandArticle: “The Morgentaler Debate: It’s life that’s in question”Date written: June 7, 2008Position: Anti- Abortion, Anti- Morgentaler

Background: Mr. McParland has been a journalist for over 30 years having worked at the Toronto Star, the National Post and 10 years overseas for publications in London, Hong Kong and Washington Post

This absolutely stunning article written by Mr. McParland involves him taking several statements and justifications taken from newspapers, individuals and online articles and critiquing them. Mr. McParland examines the reasons as to why Mr. Morgentaler should not have received the Order of Canada and the illogicalness of why abortion is valid.On the claim that Morgentaler deserved the Order of Canada because of his “profound impact on Canadian society and an immense influence on public policy and the law”, McParland brilliantly responds that simply creating “public debate and policy change” was simply nowhere near sufficient enough to justify giving Morgentaler the great honour of being awarded with one of Canada’s greatest decorations of merit. To the claim, “ Abortion rights are supported, or at least acquiesced to, by the majority of Canadians. Those who oppose easy access to abortion are in the minority and should not be allowed to derail the will of the majority”, McParland responses with a deep thought provoking argument that majority support for a topic in no way determines whether the topic is morally right, correct or permanent. He uses the example of that for a long time, the majority of the world thought blacks to be inferior to them and only fit for menial work and that in Saudi Arabia, a majority of men think women inferior to them. Likewise, McParland argues that abortion in the same sense was a “current and changeable, public opinion”. Astonishingly, Mr. McParland provides a very sensible and logical refute to the statement, “ Much of the opposition to abortion rights come from men who are not capable of giving birth and whose opinions should be therefore be discounted.”. He criticizes this view considering it to be very narrow minded and compares it to leaving the issue of slavery to be debated only by the slave owners themselves! To Dr. Morgentaler’s claim that he had “saved the lives of many thousands of women, who might otherwise have been forced to seek dangerous back alley operations”, Mr. MacParland argues that a life for life solution is hardly a solution at all and compares it to a scenario of saving a cancer patient by killing a heart patient. Finally, Mr. McParland tackles the controversial topic of whether a human fetus is a human or not head-on with perhaps one of the most well thought out and strongest opposing arguments ever made on this issue. McParland acknowledges the fact that Canada’s laws do not define whether a fetus is human and its rights are not defined as well, but to put absolute faith in the Canadian law, which has supported slavery, blocked women from voting until 1918 and supported anti immigration policies against individuals of Chinese ethnicity would be unjustified. He challenges that the law is imperfect and requires constant

correction through the courts thus to base one’s belief that the fetus is not human on the law is deeply flawed in nature. McParland appeals for readers to realize that if we look beyond the technicalities of the law, the fetus is not just a mass of blood, DNA and tissue in the uterus of a woman but a living human being like you and me which has every right to life, liberty and security of the person.

Globe and Mail: Author: Andre PicardArticle: “The Morgentaler decision: Choice? What choice?” Date written: Jan 28, 2010Position: Pro- Abortion, Pro- Morgentaler

Background: Andre Picard is a award winning public health reporter working at the Globe and Mail, one of Canada’s top public policy writers and the author of several best selling books

Andre Picard wrote this article o commemorate the 20th anniversary of the landmark 1988 Supreme Court decision in R. v. Morgentaler. Mr. Picard hails the 1988 landmark as revolutionary and the end of the “state sanctioned persecution” of Dr. Henry Morgentaler. However, Mr. Picard claims that the 1988 decision was a beginning and that there was much more to be done to ensure “reproductive choice exists in this country”. What Mr. Picard claims is that Canada is talking the talk on abortion but is not doing the walk in following through. Mr. Picard claims that while there were, “theoretically, no restrictions on abortion”, there was no increase in abortion with an actual decrease in teenage abortion. What Mr. Picard is trying to show it that, he believes Canadian women have shown acceptable restraint regarding the usage of abortions and thus Mr. Picard is trying to build justification for the fact, the government should play an active role in providing abortion services. He claims that currently, the government has “failed women who seek abortions” and he goes into further detail about the alleged shortcomings of our government regarding abortion, “the arbitrary rules that have crept into the system in the past two decades make a mockery of the Supreme Court ruling”. According to Mr. Picard, only 1 in 5 hospitals offer abortions, PEI offers no abortion services, New Brunswick has stringent measures on approving abortions, wait times in Ottawa are “a perversity” and that there is limited access to abortions outside the rural areas of Canada. He claims the Canadian government should essentially help provide better methods of abortion and easier access for mothers to kill their children and …future Canadian citizens.

What I think as a justice of the Supreme Court of Canada…

Facts: In 1983, Doctors Leslie Frank Smoling, Robert Scott and Henry Morgentaler were arrested in their Toronto abortion clinic for violating Section 251 of the Criminal Code of Canada. Section 251 of the Criminal Code of Canada states in subsection (1), “ Every one who, with intent to procure the miscarriage of a female person, whether or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an

indictable offence and liable to imprisonment for life” and in subsection (2), “Every female person who, being pregnant, with intent to procure her own miscarriage, uses any means or permits any means to be used for the purpose of carrying out her intention is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.”.

Procedural Progress to Supreme Court

Dr Morgentaler and the two other defendants were tried in a jury case in 1984 with the result being a full acquittal. In response, the Crown chooses to appeal the decision to the Ontario Court of Appeal. The Court of Appeal overturns the original judgment and orders a new trial to be held. The defendants choose to appeal this decision to the Supreme Court of Canada.

Issues Presented

Seven issues were considered but three primary issues were answered by the Supreme Court

1. Does Section 251 of the Criminal Code infringe or deny the rights and freedoms guaranteed by sections 2(a), 7, 12, 15, 27 and 28 of the CCRF?

2. If Section 251 of the Criminal Code does infringe or deny the rights and freedoms mentioned in the above, is the infringment justified by section 1 of the CCRF?

3. Is Section 251 of the Criminal Code ultra vires the Parliament of Canada?

Decisions

1. Does Section 251 of the Criminal Code infringe or deny the rights and freedoms guaranteed by sections 2(a), 7, 12, 15, 27 and 28 of the CCRF?

Yoon finds that section 251 of the Criminal Code of Canada did not infringe or deny the following rights and freedoms

2. If Section 251 of the Criminal Code does infringe or deny the rights and freedoms mentioned in the above, is the infringment justified by section 1 of the CCRH?

Yoon finds that since there was no violation of the CCRF by section 251, there is no need to determine the validity of section 1 of the CCRF regarding this situation


Yoon finds that Section 251 of the Criminal Code was intra vires the Parliament of Canada

Reasons for the Decisions

1 Does Section 251 of the Criminal Code infringe or deny the rights and freedoms guaranteed by sections 2(a), 7, 12, 15, 27 and 28 of the CCRF?

Yoon does not consider 2(a) (Freedom of conscience and religion), 12 (Right not to be subjected to cruel and unusual punishment), 15 (Equality Rights), 27 (Charter interpretation with multicultural heritage) and 28 (Guarantee of equally of rights for both sexes) to be topics of significance when regarding a possible charter violation by section 251 of the Criminal Code. When examining a possible charter violation by section 251 of the Criminal Code, Yoon found section 7 of CCRF (Life, liberty and security of person) to be a topic of importance and contention as a possibly violated charter by section 251 of the Criminal Code.

Yoon concluded that section 251 of the Criminal Code did not violate section 7 of

the CCRH. Yoon determined that the right of life, liberty and security could not

be associated with Section 251 as there is no right in section 7 which declares

abortion as a fundamental legal right in the CCRF. Section 251 of the Criminal

Code could not be found to violate the right to life, liberty and security of the

person as stated in section 7 of the CCRF. Subsection (4) of Section 251 in the

Criminal Code states Subsections (1) and (2) do not apply to:

(a) a qualified medical practitioner, other than a member of a therapeutic abortion

committee for any hospital, who in good faith uses in an accredited or approved

hospital any means for the purpose of carrying out his intention to procure the

miscarriage of a female person, or

(b) a female person who, being pregnant, permits a qualified medical practitioner

to use in an accredited or approved hospital any means for the purpose of carrying

out her intention to procure her own miscarriage,

if, before the use of those means, the therapeutic abortion committee for that

accredited or approved hospital, by a majority of the members of the committee

and at a meeting of the committee at which the case of the female person has been

reviewed,

(c) has by certificate in writing stated that in its opinion the continuation of the

pregnancy of the female person would or would be likely to endanger her life or

health, and

(d) has caused a copy of that certificate to be given to the qualified medical

practitioner.

Subsection (4) of section 251 of the Criminal Code allows individuals to exercise rights listed in section 7 of CCRF. As section 251 does not deny nor infringe on section 7 as shown in subsection (4) of section 251 in the Criminal Code, Yoon cannot find section 251 of Criminal Code to be in violation of section 7 of the CCRF.

2. If Section 251 of the Criminal Code does infringe or deny the rights and freedoms mentioned in the above, is the infringment justified by section 1 of the CCRH?

For question 1, Yoon concluded that the rights stated in the only section of importance (s.7) was not denied or infringed upon by section 251 of the Criminal Code. Thus Yoon concludes on question 2 that there is no need to investigate the justification of the usage of section 1 (Reasonable Limits) of the CCRF if there are no charter rights that is violated by section 251 of the Criminal Code.


Yoon concludes that section 251 of the Criminal is intra vires the Parliament of Canada. A law or section of legislation can be defined as ultra vires the Parliament of Canada if the law or section of legislation is found to deny or infringe a right(s) stated in the CCRF and if this law or section of legislation fails the Oakes limitations test. In order for a law or section of legislation to pass the Oakes test, the limit on the charter right(s) must be important and the limit must be reasonable and justified for the benefit of society as a whole. As section 251 of the Criminal Code is not found to violate any charter rights stated in the CCRF, section 251 of the Criminal Code of Canada can be seen as intra vires the Parliament of Canada.

Final Opinion

Yoon holds a dissenting opinion and believes the arguments and claims of the defendants made on section 251 of the Criminal Code are invalid. Yoon does not believe section 251 of the Criminal Code violated section 7 of the CCRF and considers that the Supreme Court should uphold the judgment of the Ontario Court of Appeal regarding a new trial.

Sources

Picard, André. "The Morgentaler Decision: Choice? What Choice? - The Globe and Mail."Home - The Globe and Mail. Globe and Mail, 24 Jan. 2008. Web. 09 Apr. 2011. <http://www.theglobeandmail.com/life/article663511.ece>.

McParland, Kelly. "The Morgentaler Debate: It's Life That's in Question - Posted." National Post. 07 July 2008. Web. 09 Apr. 2011. <http://network.nationalpost.com/np/blogs/posted/archive/2008/07/07/the-morgentaler-debate-it-s-life-that-s-in-question.aspx>.

R. v. Morgentaler. Supreme Court of Canada. 28 Jan. 1988. Judgments of the Supreme Court of Canada. Web. 10 Apr. 2011. <http://scc.lexum.org/en/1988/1988scr1-30/1988scr1-30.html>.

Unknown. "A legal history of abortion in Canada." The Pro Choice Action Network. Web. 09 Apr. 2011. <http://www.prochoiceactionnetwork-canada.org/abortioninfo/history.shtml>.

Unknown. "Centre for Constitutional Studies - R. v. Morgentaler." Faculty of Law - Home. University of Alberta. Web. 10 Apr. 2011. <http://www.law.ualberta.ca/centres/ccs/rulings/rvmorgentaler.php>.

Unknown. "About Us." The Morgentaler Clinic. The Morgantaler Clinic. Web. 10 Apr. 2011. <http://www.morgentaler.ca/about.html>.

Canada. Parliamentary Information and Research Service. Library of Parliament.Http://www2.parl.gc.ca/content/LOP/ResearchPublications/prb0822-e.pdf. By Karine Richer. Government of Canada, 24 Sept. 2008. Web. 08 Apr. 2011.

Schelin, Sheryl. "How To Write a Brief for Law School: Case Brief." How To Do Things » How To Articles & How To Videos. How to Do Things.com. Web. 10 Apr. 2011. <http://www.howtodothings.com/careers/a2850-how-to-write-a-brief-for-law-school.html>.

News, CBC. "Abortion Crusader Deeply Divides Canadian Society - Canada - CBC News."CBC.ca - Canadian News Sports Entertainment Kids Docs Radio TV. CBC News, 14 Jan. 2009. Web. 10 Apr. 2011. http://www.cbc.ca/news/canada/story/2008/07/02/f-morgentaler.html

News, CBC. "Abortion Rights: Significant Moments in Canadian History - Canada - CBC News."CBC.ca - Canadian News Sports Entertainment Kids Docs Radio TV. CBC News, 21 May 2009. Web. 10 Apr. 2011. <http://www.cbc.ca/news/canada/story/2009/01/13/f-abortion-timeline.html>.

r_v_morgentaler_(edited)

Documents