CLU 3M1

Case Study: R. v. Morgentaler

R v. Morgentaler, [1988] 1 S.C.R. 30

Facts:

Dr. Henry Morgentaler, Dr. Leslie Franck Smoling and Dr. Robert Scott were all
qualified medical practitioners. The three doctors were charged with illegally performing
abortions in a private clinic, contrary to section 251(1) of the Criminal Code. Section
251(4) of the Criminal Code required a woman who wanted an abortion to apply to a
hospital where a special committee would approve the abortion only if it was necessary
for the life or health of the woman. The abortion had to be done by a doctor who was not
a member of the committee. The appellants 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.

Issues:

The Supreme Court considered seven issues:

1. 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.
2. If such a violation occurs, whether it is justifiable under s. 1 of the Charter.
3. Whether s. 251 of the Criminal Code is ultra vires the Parliament of Canada.
4. Whether s. 251 of the Criminal Code violates s. 96 of the Constitution Act, 1867.
5. 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.
6. 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.
7. If such a violation occurs, whether it is justifiable under s. 1 of the Charter.

Decision:

Doctors Morgentaler, Smoling and Scott argued that section 251 of the Criminal Code
violated a woman's guarantee to life, liberty and security of person found in section 7 of
the Charter. The Supreme Court of Canada ruled that section 251 of the Criminal Code
did violate section 7 of the Charter. The Court stated, "forcing a woman by threat of
criminal sanction to carry a fetus 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 the security of the person."

Case Study From: Mapleleafweb. 20 Apr. 2005. Department of Political Science. University of Lethbridge.
7 Mar. 2006. <www.mapleleafweb.com>
CLU 3M1

The Court found that section 251 caused delays that might result in psychological or
physical harm. Also the Court said the law set no standard by which the committees
could judge the danger to a woman's health. Thirdly, because the section required
hospitals to have at least four doctors to authorize and perform abortions, the operation
was simply not available to many woman who relied on small or local hospitals.

The prosecution used section 1 of the Charter to defend section 251 of the Code. That is,
it claimed that the limitations on a woman's rights were reasonable and justifiable. The
court agreed that section 251 did have an important objective; it balanced the competing
interests of the pregnant woman and the fetus. However, the court also ruled that the
effects of the limitation were out of proportion to the objective. "To the extent that
section 251(4) is designed to protect the life and health of women the procedure
established may actually defeat the objective."

The Court struck down section 251 of the Criminal Code and the convictions of Doctors
Morgentaler, Smoling and Scott.

QUESTIONS

1. Do you agree with the results of R. v. Morgentaler, [1988], regarding section 251 of
the Criminal Code? Explain your answer and refer to Charter sections in your response.

2. Often, religious beliefs and Canadian laws conflict. In the case of R. v. Morgentaler,
the results go against, for example, the Catholic teaching which states that "life begins at
the moment of conception". There are other religions whose beliefs strongly suggests that
life should be respected at all stages, including the life of an unborn child. How should
Canadian citizens deal with the contradiction between the law and personal religious
beliefs?

3. In the Morgentaler case, section 251 of the Criminal Code was struck down. However,
the court made the following statement when interpreting the Code: "The court agreed
that section 251 did have an important objective; it balanced the competing interests of
the pregnant woman and the fetus". Do you believe this statement gives rights to the
fetus? Do you believe a fetus should have rights under the Charter? Explain and justify
your response.

4. On 1 July, 2008 Henry Morgentaler was nominated for the Order of Canada. Many
former recipients gave up their Orders in protest. Do you feel he deserves this honour?

Case Study From: Mapleleafweb. 20 Apr. 2005. Department of Political Science. University of Lethbridge.
7 Mar. 2006. <www.mapleleafweb.com>