R. v. Morgentaler

[1988] 1 S.C.R. 30
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Section 251(4) of the Criminal Code of Canada (the Code) permitted abortions to be performed only at accredited hospitals and then with approval from the performing hospital’s therapeutic abortion committee.

Drs. Morgentaler, Smoling, and Scott had together established an abortion clinic in Toronto to perform abortions not approved by a therapeutic abortion committee.  Following public statements made by the appellants concerning women’s rights to abortion, they were charged with indictments for having conspired with each other to contravene the Criminal Code.

The accused physicians moved to quash or stay the indictment, claiming that s. 251 of the Code violated s. 7 of the Canadian Charter of Rights and Freedoms (the Charter) and was inconsistent with s. 1(b) of the Canadian Bill of Rights (the Bill of Rights).  The motion was dismissed, and the three physicians were acquitted in the ensuing trial.  The Crown appealed the acquittal under s. 605 of the Code, and the Court of Appeal ordered a new trial.  The physicians appealed the order to the Supreme Court.

The Court held that s. 251 of the Criminal Code violated s. 7 of the Canadian Charter. The Court considered that previous case law had shown that in a criminal law context, state interference with physical integrity and imposition of serious psychological harm constituted violations of the right to security of person. Furthermore, this interference was inconsistent with principles of fundamental justice. In the Court’s opinion, s.251 forced some women to carry to term a pregnancy without regard to their own priorities and aspirations. Additionally, delays caused by the approval process increased their risk of physical and psychological harm.

This violation could not be justified by s. 1 of the Canadian Charter, which allowed rights to be subject to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The onerous requirements for approval of abortions made arbitrary decision-making possible and prevented smaller hospitals from providing abortions, while also increasing delays, thus limiting women’s access to health services.  These unfair and arbitrary effects were out of proportion to, and may actually have defeated, the objective of protecting the life and health of women.

The Court also dealt with a number of other constitutional arguments. It rejected an argument that s. 251 of the Code was ultra vires because it did not fall within the criminal law power of Parliament. It also rejected an argument that s. 251 unlawfully conferred judicial power on the approval committees, as the approval committees were exercising medical, not judicial, judgment. It rejected arguments that s. 251 unlawfully delegated federal criminal power to provincial Ministers of Health or therapeutic abortion committees, and arguments that the Federal Government had abdicated its authority in this area. Finally, it rejected a number of arguments that provisions of the Code dealing with criminal procedure were inconsistent with fair trial rights.

“The case law leads me to the conclusion that 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 is not necessary in this case to determine whether the right extends further, to protect either interests central to personal autonomy, such as a right to privacy, or interests unrelated to criminal justice.” [1988] 1 SCR, p. 56.

“At the most basic, physical and emotional level, every pregnant woman is told by the section that she cannot submit to a generally safe medical procedure that might be of clear benefit to her unless she meets criteria entirely unrelated to her own priorities and aspirations. Not only does the removal of decision-making power threaten women in a physical sense; the indecision of knowing whether an abortion will be granted inflicts emotional stress. Section 251 clearly interferes with a woman's bodily integrity in both a physical and emotional sense. 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 a violation of security of the person. Section 251, therefore, is required by the Charter to comport with the principles of fundamental justice.” [1988] 1 SCR, p. 56-57.