“Diverging judicial opinions on Abortion in Morgentaler (N. 2) (1988)”

A critical analysis of the Supreme Court of Canada's decision Morgentaler (N. 2) (1988), officially indexed as R. v. Morgentaler (No.2)

[1988] 1 S.C.R. 30.

Christine Brousseau100645215

LAWS 2005VJuly 26th, 2007

In the late 19th century, abortion became an official sanctioned criminal offense. By 1969, the

Criminal Code of Canada had been amended, and abortion remained a criminal offense, but was

allowed under specific qualifying circumstances1. The anti-abortion response to the law was due to its

excessively liberality, and that access was not restricted enough. While on the other side of the

spectrum, abortion supporters complained that the laws were still too restrictive, that woman relied on

the presence of a hospital abortion committee and their decision as well as the opinion of her doctor,

along with the fact that no government funding for abortions existed, and no legal requirement for

hospitals to provide abortion services were set out. In 1988, the Supreme Court of Canada heard the

case of R. v. Morgentaler, in which Criminal Code sections on abortion were judged unconstitutional,

and were therefore struck down from the Code. There is currently no replacement law or any

prohibiting public policies.

The Controversial Case in Question

The Morgentaler majority decision was based on the Canadian Charter of Rights and Freedoms,

1982 (specifically section 1 and section 7). Section 1 of the Canadian Charter “guarantees the rights

and freedoms set out in it subject only to such reasonable limits prescribed by law as can be

demonstrably justified in a free and democratic society”2. Section 7 dictates that “everyone has the

right to life, liberty and security of the person and the right not to be deprived thereof except in

accordance with the principles of fundamental justice.”3 In Canada, an unborn child is not considered a

legal person until they are actually born.

Pregnant women have a right to autonomy, physical integrity, and life. Forcibly treating a

woman and her unborn child without her consent amounts to assault. R. v. Morgentaler was a decision

of the Supreme Court of Canada in which the abortion provision was found to be unconstitutional, due

to its violation of rights under section 7 of the Canadian Charter of Rights and Freedoms. Ever since

this ruling, there have been no laws regulating abortion in Canada. Before this case, section 251 of the

Criminal Code (now found under section 2874) allowed for abortions to be legally performed only at

accredited hospitals with proper certification of approval from the hospital's therapeutic abortion

committee (TAC).

Three doctors, Dr. Henry Morgentaler, Dr. Leslie Frank Smoling and Dr. Robert Scott, set up an

1 Criminal Code (R.S., 1985, c. C-46), § 251(4) states the specific conditions under which abortion may be performed lawfully: (1) performed by a qualified medical practitioner in an approved hospital; (2) approved by a therapeutic abortion committee of the hospital; (3) continuing pregnancy would endanger the life or the health of the woman

2 Canadian Charter of Rights and Freedoms , Schedule B to the Canada Act 1982 (U.K.) 1982, c.11, § 13 Canadian Charter of Rights and Freedoms , Schedule B to the Canada Act 1982 (U.K.) 1982, c.11, § 74 Criminal Code ( R.S., 1985, c. C-46 ), § 251

abortion clinic to perform abortions on women who had not received certification from the therapeutic

abortion committee, as required under section 251(4) of the Criminal Code. In doing this, they were

attempting to bring public attention to their cause, claiming that a woman should have complete control

over the decision on whether or not to have an abortion. The Court ruled 5 to 2 that the law violated

section 7 and could not be saved under section 1, despite the fact that it was not beyond the authority

(ultra vires) of the government to create such a law. However, there were different opinions given by

each of the concurring parties of the majority.

Dickson-Lamer Decision

One of the most dramatic majority opinions was that of Chief Justice Dickson with Justice

Lamer concurring. Dickson began by examining section 7. He found that section 251 forced some

women to carry a fetus regardless of her own priorities and aspirations. This was a clear infringement

of “security of the person”. He found a further violation due to the delay created by the mandatory

certification procedure, which put women at higher risk of physical harm as well as injury to their

psychological integrity. Dickson examined whether the violation accorded with the principles of

fundamental justice. It did not, because of the unreasonable requirements which prevented small

hospitals from providing such services; thus, preventing women from even applying for the legal

certification from the therapeutic abortion committee. The administrative system failed to provide

competent evaluation criteria, which led to allowing the committees to grant or deny therapeutic

abortions as they saw fit. Dickson found that the violation could not be justified under section 1,

centering on the instrumentality chosen by the government to achieve its objectives. In the end, the law

failed each section of the proportionality test (also known as the Oakes test)5. First, the administrative

process was unfair and biased. Second, the consequent impairment of women's rights was beyond what

was necessary. Third, the effect of the impairment definitely outweighed the importance of the law's

objectives. Dickson concluded that section 251 of the Criminal Code violated section 7, “security of

person” of the Charter. For him, violation of security of the person included “state interference with

bodily integrity and serious state-imposed stress.” To him, section 251 delayed women's access to

medical procedures. Such a delay increased the complication and mortality rates during an abortion, as

well as having a negative psychological impact upon those going through the entire process. Dickson

further concluded that such a violation of security of person was again, contrary to the principles of

fundamental justice. One of the subconcepts of fundamental justice is that when Parliament creates a

defense to a charge, the defense should not be illusionary or too difficult to attain. Dickson asserted that

5 Canadian Charter of Rights and Freedoms , Schedule B to the Canada Act 1982 (U.K.) 1982, c.11, § 1.

a defense under section 251 – the ability to apply for an exemption from the criminal offense created by

the section – was practically unreal. The functional operation of this section had the effect of limiting

the number of places in which a woman could go to apply for or receive a legal abortion. Dickson

pointed out the requirements under section 251, that at least four physicians must be available to

authorize and perform abortions that accredited abortion hospitals provide. Such requirements made

many hospitals ineligible to authorize and perform abortions. Consequently, in many areas of the

country, women were denied reasonable access to facilities that authorized and performed abortions.

Dickson also concluded that section 7 was not justifiable under section 1 of the Charter. Specifically, it

failed the proportionality test. The objective of section 251 was to balance rights of the pregnant

woman with those of the fetus (if any), and he concluded that this objective was of sufficient

importance to warrant a Charter infringement. Dickson asserted that section 251, as a means for

achieving this objective, failed the proportionality test. By holding out an illusive defense, the

provisions and procedures of the section infringe upon section 7 far more than what was necessary.

Furthermore, the negative effects of the sanction were not proportionate to its benefits. The section was

so impractical, that women's health would still be at risk.

Beetz-Estey Decision

Concurring, Beetz K., joined by Estey, wrote a second opinion finding the abortion law invalid.

In it, Beetz noted that by adopting section 251(4), the government acknowledged that the interest of the

state is to protect the woman, especially when carrying on the pregnancy could be a danger to her

health and even to her life. The Justice's reasoning closely resembled that of Chief Justice Dickson. He

found a violation of section 7 as the procedural requirements if section 251 were “manifestly unfair”.

Beetz decided that his section 1 analysis was also similar to that of Dickson's. He found that the

objective had no rational connection to the means, thus the law could not be justified. Both opinions

omit any analysis of whether the fetus had rights protected by the Charter. By examining whether the

law was ultra vires or not, Beetz examined section 91 and section 96 of the Constitution Act, 1867. He

decided that the law was within the power of the federal government, on account that the committee

was not given any power over any provincial jurisdiction under section 91, nor did it function in any

sort of judicial manner under section 96. Beetz agreed with Dickson and Wilson that section 7 was the

primary focus for a Charter violation in this case. Beetz concluded that section 251 did violate section

7, but for different reasons than those given by Dickson. For Beetz, “security of person” included a

right to access medical treatment when life or health is in danger, and without fear of criminal sanction.

Section 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 under section 251, which would lead to delays

in treatment and possible health risks; or (2) safe medical treatment legally, which would lead to

criminal sanction. By creating such a situation, the legislation led to a position in which women facing

health risks due to pregnancy were denied timely and legal access to medical treatment. Even though

this was in their right under section 7, Beetz found this violation of security of the person to be contrary

to the principles of fundamental justice. Such inconsistency originates from the fact that the

administrative structure of the section was made up of unnecessary rules that created needless risks to

the health of the woman. These rules were redundant because they did not truly reflect the objective of

the legislation – in particular, to protect the rights of the unborn child. Beetz pointed out the

requirement that abortions must take place only in accredited hospitals. This inconvenient requirement

meant that there were a limited number of facilities for pregnant women to go to, thereby delaying

access even further to medical treatment. The objective of this rule was the safety of women rather than

the alleged objective. The rule was unnecessary and was unfavorable to the principles of fundamental

justice, also known as natural justice. Beetz concluded that the violation of section 7 was not justifiable

under section 1 of the Charter, because it failed the proportionality test – more specifically, the first

component of the test, which required that the means of the legislation be rationally connected with its

objective. Beetz agreed with Wilson that the goal of section 251 was to protect the rights of the fetus,

when focus should be on the woman's rights. He also concluded that this goal was of sufficient enough

importance for infringing upon Charter rights. For Beetz, much of section 251 failed to be rationally

connected to its objective because it imposed excessive requirements of women who sought an

abortion. For 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 offenses, was a violation of the Charter. For Beetz, the Court's

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. Beetz concluded that he would not strike s.605,

asserting that no costs should be awarded to the appellants.

Wilson's Decision

Wilson J. wrote her own concurring opinion, but taking a significantly different approach. She

decided that section 251 violated all three rights: life, liberty and security of the person. She

emphasized how section 251 violated a woman's personal autonomy by preventing her from making

her own decisions, which ultimately affect her and her unborn child's life. Justice Wilson thought that

the woman's decision to abort her fetus is one that is very substantial on so many levels that it goes

beyond a medical decision, and becomes a social and moral one as well. By removing the women's

ability to make her own decision, and giving it to a committee, who has no clear defining criteria or

rules set out, would be a distinct violation of the liberty and security of the person. Wilson also noted

that the state is essentially taking over the woman's capacity to reproduce, which is ultimately a form of

taking control over her body. Wilson agrees with the other Justices that section 7 (prohibiting the

performance of an abortion except under certain circumstances) is procedurally unfair, and that the

violation of section 7 also has the consequence of violating section 2(a) of the Charter (freedom of

conscience) because of the requirements for a woman to be permitted to obtain an abortion legally.

Freedom of conscience is a fundamental freedom, and in particular, abortion laws breached freedom of

conscience. The decision to terminate a pregnancy is up to the woman, and is a moral one, which

involves the matter of conscience choice. To Wilson, the decision to abort is principally a moral one,

and by preventing her from having one violates a woman's right to her own conscientious beliefs. It is

nothing more than treating women as a means to an end, depriving them of their “essential humanity”.

She also states that:

“The decision whether to terminate a pregnancy is essentially a moral decision, a matter of conscience. I do not think there is or can be any dispute about that. The question is: whose conscience? Is the conscience of the woman to be paramount or the conscience of the state? I believe, for the reasons I gave in discussing the right to liberty, that in a free and democratic society it must be the conscience of the individual.”6

In her analysis of section 1, Wilson states that the value placed on the fetus is proportional to its

stage of gestation, and that the legislation must take that into account. However, here, the law cannot be

justified as the law takes the decision-making power away from the woman, thus would not pass the

proportionality test. Wilson concluded that section 251 violated section 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 section 251 violated section 7 under both its “liberty” and “security of person” clauses.

For Wilson, the right to liberty in section 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 (for any reason) her pregnancy is included within this class of important

decisions. However, section 251 takes such a decision away from women as it enforces criteria for

lawful abortions that is entirely unrelated to the priorities and preferences of the pregnant woman. For

6 R. v. Morgentaler, [1988] 1 S.C.R. 30, 175.

Wilson, the right to security of the person in section 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 section 7 included both procedural

justice and other rights and freedoms laid down in the Charter. The violation of section 2(a) of the

Charter, specifically freedom of conscience and religion. The decision whether or not to terminate a

pregnancy for any reasons falls, for Wilson, under the freedom of conscience. Thus to deny such a

decision, as the challenged section does, is to deny freedom of conscience and, as a necessary

implication, is contrary to the principles of fundamental justice. Wilson also concluded that the section

7 violation could not be justified under section 1 of the Charter. Specifically, it failed the

proportionality test once again. For Wilson, the primary objective of section 251 was the protection of

the rights of the fetus. Furthermore, such an objective was of sufficient importance to warrant a Charter

violation. The challenged section failed the Oakes test, specifically, the minimal impairment

component. The fetus should only be viewed as a potential life, until the later stages of pregnancy.

However, because section 251 infringed upon section 7 throughout a woman's pregnancy, it did not

impair the woman's right as little as possible. Wilson came to the conclusion that the s.7 violation could

not be justified under s.1 of the Charter. Specifically, it failed the proportionality test. For Wilson, the

primary objective of s.251 was the protection of the rights of the fetus. Furthermore, such an objective

was of sufficient importance to warrant a charter violation. The challenged section failed the

proportionality test; specifically, the minimal impairment component. The fetus should only be views

as a potential life until the later stages of pregnancy. However, it did not impair the woman's right as

little as possible. Wilson concluded that the appeal should be allowed, based mainly on the grounds that

section 251 violated s.7 and was not justifiable under s.1 of the Charter.

McIntyre-La Forest Decision

A dissent was written by Justice McIntyre with Justice La Forest concurring. McIntyre found

that there is no right to abortions in section 7, nor any other laws for that matter. His argument is based

on the role of judicial review and how the Courts must not go about creating rights not explicitly found

in the Charter, nor interpret Charter rights to protect interests that the rights were not initially intending

to protect. Furthermore, there is no societal consensus that these interests should be protected either.

Even if a right could be found, the case would not have been sufficient to prove a violation. The

provisions of section 251(4) cannot be said to be “manifestly unfair” on the basis that some women do

not have access to abortions. The problems with administrative procedure are external to the legislation

and cannot be the basis of a violation . McIntyre concluded that section 251 did not violate section 7 of

the Charter. For McIntyre, section 7 had to be interpreted in accordance with the values and traditions

of society. The Court did not have the sole right to decide the substance of section 7. The Court only

has the capacity to ensure that rights declared by the legislatures are protected. 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. This includes the provisions of the

Charter. Historically, there has been an evident public interest in the protection of the unborn fetus, and

this was the basis of legislating s.251. McIntyre concluded that s.7 did not include the right to have an

abortion, and therefore, s.251 could not be in violation of s.7. In addition, McIntyre decided that no

breach of the fundamental principles of justice had occurred. In his discussions he claimed that the

challenged section responded adequately to the needs of women who needed abortions. 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. Also, McIntyre

concluded that s.251 was within federal jurisdiction. He agreed that the challenged legislation was not

for the protection of health, and therefore it was not within provincial jurisdiction to forestall federal

legislation. 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 powers to therapeutic

abortion committees at the time the Confederation, focusing on the framers intent. McIntyre concluded

that s.251 did not represent an unlawful delegation of federal legislative power. McIntyre agreed with

the rationality 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. Nearing the end, McIntyre finally

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 own operational inefficiencies. In

regards to the other issues before the Court, McIntyre answered in the negative.

Proportionality Test (a.k.a. Oakes Test)

The Proportionality Test (also known as the Oakes Test) is section 1 of the Canadian Charter of

Rights and Freedoms. This section is also referred to as the reasonable limits clause. It allows the

government to legally limit an individual's Charter rights; usually used to control dangerous conduct.

The test is founded mostly on factual analysis of the case and the provisions in question. When the

government has limited an individual's right(s), there is an onus on the Crown to show that the

limitation was set out by law. The Crown must especially demonstrate that the law is in tune with the

ideas of accessibility and comprehensibility. The Crown must also prove that it is justified in a free and

democratic society, which means that is must have a justifiable purpose. Under the heading of

“Guarantee of Rights and Freedoms”, the section states: “1. The Canadian Charter of Rights and

Freedoms guarantees the rights and freedoms set out in it subject only to such reasonably limits

prescribed by law as can be demonstrably justified in a free and democratic society.”7 The Oakes test is

applied once the claimant has proven that one of the provisions of the Charter has been violated. The

burden is on the Crown, this time to pass the Oakes test. Dickson asserted that limitations on rights

must be motivated by an objective of ample importance. The proportionality test is a two step process,

which is then further broken down:

(1) there must be a present and substantial objective

(2) the means must be proportional

(a) rationally connected to the objective

(b) there must be minimal impairment of rights

(c ) there must be proportionality between the infringement and the objective. If legislation fails

any of the above processes, it is unconstitutional

Otherwise the impugned law passes the Oakes test and remains valid. Professor Peter Hogg,

who argued that the rational connection test was redundant, continues to argue that the criterion is of

little use8. An example of the rational connection test being failed can be found in R. v. Morgentaler, in

which Dickson was of the opinion that laws against abortion should be struck down due to a breach of

health rights under section 7, and he also found an irrational connection between the objective

(protecting the unborn child and the pregnant woman's health), and the process by which therapeutic

abortions took too long to receive a final decision, all the meanwhile the woman is uncertain of her and

her fetus' future. The law did also fail the other two proportionality criteria as well. The proportionality

aspect is a step which asks whether the objective is proportional to the effect of the law. Professor Hogg

has argued that merely satisfying the first three criteria of the Oakes test probably amounts to the

automatic satisfaction of the fourth criterion9. For Justice McIntyre, the Oakes test was too high of a

7 Canadian Charter of Rights and Freedoms , Schedule B to the Canada Act 1982 (U.K.) 1982, c.11, § 18 Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited,

2003.9 Ibid.

standard for equality rights, which was a complex issue since governments must create well-grounded

social and economic legislation. He decided to compose his own two-step test:

(1) the government action must have been produced and put into motion in order to achieve a

pertinent social objective;

(2) the equality right which infringes on the process of pursuing the objective is analyzed, with its

valuable meaning to those whose rights were narrowly assessed

(a) this evaluation is then finally balanced against a judgment – does the limit achieves the

objective?

Morals, Ethics, and Legal Personhood

Some legislative measures seek to establish the right to life from the moment of conception.

This perspective exemplifies the laws' regard for the fetus as a legal person. In Canadian law, under

section 223 of the Canadian Criminal Code, the fetus is a “human-being...when it has completely

proceeded, in a living state, from the body of its mother whether or not it has completely breathed, it

has an independent circulation or the navel string is severed.”10 Plenty of opposition to abortion is

based on the controversial concern for fetal rights. The debate around morality and rights usually

circles around two main questions:

(1) is the fetus a person? And

(2) if yes, do any rights that it has as a person outweigh the rights of its parent(s)?

The ethicist Peter Singer has argued that our notion of personhood relates to a being's

possession of the capacities for reason and self-consciousness, and therefore humans without these

characteristics should not be considered persons11. Since children in the fetal and infant stages of

development do not possess such capacities, Singer argues that they should not be considered persons.

If fetal rights are agreed upon then another relevant question arises in cases where these conflict with

the rights of parents. Does the right of the fetus outweigh the parent's rights to autonomy? In the debate

on abortion, those who consider themselves “pro-life” might also agree with the personhood of the

fetus, and generally would argue that the mother's right to liberty and independence supersedes the

rights of the fetus. Acting otherwise would compel the woman to behave in such a way that would

gravely limit her freedom. Canada is one of only a few nations with no legal restrictions on abortion

whatsoever, and access is still among the most liberal in the world.

10 Criminal Code ( R.S., 1985, c. C-46 ), § 22311 Singer, Peter. (1995). Abortion. In Ted Honderich (ed.), The Oxford Companion to Philosophy, pp. 2-3. Retrieved July 31, 2006.

Section 7 of the Charter

In 1988, The Supreme Court declared the entirety of section 251 to be of no force because it

was held to violate section 7 of the Charter. Section 7 states that: “Everyone has the right to life, liberty,

and the security of the person and the right not to be deprived thereof except in accordance with the

principles of fundamental justice.”12 The majority of the Court held that:

“the structure of the system regulating access to therapeutic abortions is manifestly unfair. It contains so many potential barriers to its own operation that the [exception] it creates will in many circumstances be practically unavailable to women who would prima facie qualify.”13

As such, the provision was held to violate the principles of fundamental justice and was thus

struck down. The majority of the Court in Morgentaler did not go so far as to find that section 7

contains a substantive right to abortion. The source of this argument was only explicitly argued by

Wilson and not the majority of the court. The court found it unnecessary to consider whether the

substance of s.7 implies a right to abortion, but rather made its decision on exclusively narrow and

procedural grounds14. The result is that it is still open to Parliament to impose some restrictions on

abortion within the present jurisprudence. However, such restrictions would surely be met with

vehement opposition, and the court could possibly even read-in a right to abortion into the Charter in a

prospective decision. On the other hand, a future court could echo the dissent of La Forest and

McIntyre: “The proposition that women enjoy a constitutional right to have an abortion is devoid of

support in the language of s.7 for the Charter or any other section.”15 The end result is that there is no

criminal regulation of abortion in Canada. While many Canadians opposed the liberalization of

abortion laws, others believed that the law did not go far enough, and that the rulings of the three-

doctor committees (TAC's) were inconsistent and untimely.

In a landmark decision, the Court declared the entire abortion law to be unconstitutional. The

Court noted that by “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”and that the law “asserts that the

women's capacity to reproduce is to be subjected, not to her own control, but to that of the state”16 were

essentially a breach of the woman's right to security of the person, which is guaranteed in the Charter.

The court also found that the procedural requirements to obtain an abortion, as set froth in the law, were

12 Canadian Charter of Rights and Freedoms , Schedule B to the Canada Act 1982 (U.K.) 1982, c.11, § 713 R. v. Morgentaler, [1988] 1 S.C.R. 30.

14 Canadian Charter of Rights and Freedoms , Schedule B to the Canada Act 1982 (U.K.) 1982, c.11.

15 R. v. Morgentaler, [1988] 1 S.C.R. 30.16 Ibid.

exceedingly troublesome. Only accredited or approved hospitals could perform abortions, which

imposed a barrier to local access. The law also specified that women wanting an abortion were required

to consult a Therapeutic Abortion Committee (TAC), an administrative unit of at least four physicians

appointed by the hospital's board of members. The court found that the TAC was deeply flawed, in part

because of the long delays in part because the TAC were merely committees that did not actually

perform abortions. In its decision in 1988, the Court stated that

“The right to liberty...guarantees a degree of personal autonomy over important decisions intimately affecting his or her private life...The decision whether or not to terminate a pregnancy is essentially a moral decision and in a free and democratic society, the conscience of the individual must be paramount to that of the state.”17

A large part of why the Supreme Court ruled against the abortion law had to do with how

amendments to the Criminal Code would be made and agreed upon, and how allowing abortions under

s.251worked. In order to have an abortion, a woman had to first have a doctor who was willing to give

her information on the topic and refer her to another doctor, or take the case him or herself. The

abortion then had to be approved by a hospital's TAC. The court noted that it was mostly always men

that were deciding if a woman should have an abortion. Also, some pro-life doctors would not take any

case to a TAC, or would only take a very severe case, and some doctors would not even refer a woman

to a doctor who would present the case to the TAC. Finally, the TAC had to decide on each request for

an abortion on a case-by-case basis. These factors resulted in a time lag that meant that abortions were

being performed much later than they could and should have been. The Court also recognized that the

rules resulted in varying levels of abortion availability, depending on location. The existence of private

clinics meant that women who had enough money could bypass the TAC system completely. The court

did, however, encourage the government to introduce a new and improved abortion law. The failure to

pass an attempted bill legislating abortion prompted the government to give up on governing abortion

entirely.

Section 251 of the Criminal Code vs. Section 1 Analysis of the Charter

When it comes to politics, the courts and the government can never seem to maintain the notion

of equivalent yet separate powers. In regards to the judicial process, there are three aspects in the

Morgentaler case that require attention. First, the Charter's entrenchment in 1982 caused Chief Justice

Dickson to alter his earlier views about the Court's proper role in the abortion realm. In 1975, Dickson

17 Ibid.

did not believe that the Court should participate in “the loud and continuous public debate on

abortion”18 . By 1988, Dickson's reticence had been displaced by the Courts “added responsibility of

ensuring that the legislative initiatives pursued by our Parliament and legislatures conform to the

democratic values” expressed in the Charter19. A second aspect worth noting is that the Court's analysis

of the conflict between section 251 and security of the person relied heavily on extrinsic evidence, a

relatively unusual practice in Canadian constitutional law. Finally, the Chief Justice's decision to

restrict his reasons for judgment to the procedural aspects of section 251 suggests that he must have

recognized the tensions between the demands of the Charter adjudication and the Court's traditional

decision-making style. The outcome of this case raises important questions about the constitutional

legitimacy and institutional capacity of the Supreme Court's exercise over judicial review under the

Charter. The constitutional questions include the primary lawfulness of judicial review, keeping in mind

that we live in a political civil order that places value on publicly accountable decision-making, as well

as the tolerable range of the judicial review. The spectrum of unelected officials, who hold their

positions by virtue of extraordinary tenure20, raising decisions of elected legislators poses a dilemma in

a liberal democracy. This problem takes on a new magnitude when this review extends to the substance

of the policy content of the legislation. These standard questions of legitimacy are closely linked to

verifiable questions concerning the institutional capacity of courts to work with and evaluate the type

of information necessary to perform their role. The idea that judges might evaluate statutes according to

the standards of a higher law, and then refuse to enforce them was first set forth by Lord Coke in Dr.

Bonham's Case (1610).21 For Lord Coke, these higher standards were to be found in common law:

“It appears in our books, that in many cases, the common law will control acts of parliament, and sometimes adjudge them to be utterly void: for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void.”22

Extensive reliance on legislative facts is absolutely required by section 1 and by the criteria

established for its application in the proportionality component of the Oakes test. Adjudicative facts are

the distinct events that occur between parties to a lawsuit, while legislative facts include information

about the causal relationship and “recurrent patterns of behaviour” on which policy decisions are

18 Argesto, John, The Supreme Court and Constitutional Democracy (Ithaca, N.Y.: Cornell University Press, 1984), 11.19 Monahan, Patrick, Politics and the Constitution:The Charter, Federalism and the Supreme Court of Canada (Toronto:

Carswell/Methuen, 1987).20 Mandel, The Charter of Rights and the Legalization of Politics in Canada, (Toronto: Thompson Education Publishing,

1994), 71.21 Ibid ., 311.22 Ibid . , 311.

made23.

Judicial Philosophies

Judicial decision-making relies on the judges legal philosophies (see Appendix A: Table 1). This

is sometimes referred to as judicial activism, which is defined in the Merriam-Webster's Dictionary of

Law as “the practice in the judiciary of protecting or expanding individual rights through decisions that

depart from established precedent or are independent of or in opposition to supposed constitutional or

legislative intent”24. Black's Law Dictionary, states that it is “a philosophy of judicial decision-making

whereby judges allow their personal views about public policy, amongst other factors, to guide their

decisions, usually with the suggestion that adherents of this philosophy tends to find constitutional

violations and are willing to ignore precedent.”25 Judicial activism can be narrowly defined as one or

more of three possible things: (1) reverse the law as unconstitutional; (2) overturning judicial

precedent; (3) ruling against a preferred interpretation of the constitution. There is also other methods

by which judges may engage in judicial activism, including holding legislation as unconstitutional

based on what critics view as clearly flawed precedent; selectively using obscure case law or foreign

law, and use by the courts of a single subject rule to nullify legislation or constitutional amendments in

a questionable manner. As a general usage, an activist judge is described as a judge who dynamically

and knowingly subverts, misuses, grossly misinterprets, ignores or otherwise flaunts the law and or

legal precedence due to personal opinion, be that opinion ideological, religious, philosophical, or other

subjective backdrops.

Judicial restraint is a theory of interpretation that encourages judges to limit exercise of their

own power. It asserts that judges should hesitate to strike down laws unless they are obviously

unconstitutional. It is regarded as the opposite of judicial activism. Judicially-restrained judges go to

great lengths to defer the legislature itself. It requires the judge to uphold a law whenever and wherever

possible. A branch of judicial restraint argues that judges should put emphasis on adherence to stare

decisis and precedent. Conservative restrained judges argue that they should only make minor or

incremental changes to constitutional law in order to maintain stability.

Legal interpretivism is a school of thought in contemporary legal philosophy. It is usually

identified with Ronald Dworkin's theses on the nature of law.26 Dworkin explains what makes a

practice interpretive, in terms of a special attitude (which he claims has two components). He uses an

23 Strayer, Barry, The Canadian Constitution and the Courts: The Function and Scope of Judicial Review (Toronto: Buttersworth, 1983), 56-57.

24 Merriam-Webster's Dictionary of Law (1996: Merriam-Webster: Springfield, Mass.)25 Garner, Bryan A., Black's Law Dictionary, 8th Edition. (West Group, 1999).

26 Cohen, Marshall, Ronald Dworkin and Contemporary Jurisprudence (London: Duckworth, 1984).

imaginary example of an act of courtesy requires. He describes the components of the attitude:

“The first is the assumption that the practice of courtesy does not merely exist but has value, that it serves some interest or purpose or enforces some principle – in short, that it has some point – that can be stated independently of just describing the rules that make up the practice. The second is the further assumption that the requirements of courtesy – the behaviour it calls for or the judgments it warrants – are not necessarily or exclusively what they have always been taken to be but are instead sensitive to its point, so that the strict rules must be understood or applied or modified or qualified or limited by that point.”27

Interpretivism includes the claim that interpretation is conscious to values in the way that there

is a scheme which can be found through an interpretation of practices that is aware of the facts in

regards to the practices and the values that operate in the real world. The main claims of interpretivism

are that the refusal that law is a set of given entities. There is no separation between law and morality,

although there are some differences; law is not immanent in nature nor do legal values and principles

exist independently and outside of the legal practice itself. Interpretivism about the nature of law is

viewing legal rights and duties determined by the scheme of principle that provides the best

justification of certain political practices of a community – a system identifiable through an

interpretation of the practice that is sensitive both to the facts of the practice and to the values or

principles that the practice serves, and that it is fundamental to the nature of law. Interpretivism is a

dissertation about what determines legal rights and duties, in the sense of what makes it the case that

the law requires what it does. Questions can be formulated in terms of the grounds of the propositions

of law. Interpretivism therefore claims that legal requirements are sensitive to the facts of the practice

and the values served by it, but not fully determined by either. The interpretivist hypothesis amounts to

the attribution of a principle or point to the relevant practice, and expression of the values that are

served28. When the interpretivist has no choice but to deny the attribution of a value or point that is too

weak, the claim then becomes non-interpretivist, since it assumes that a test other than interpretive

success is fundamental.

The distinction between interpretivism and non-interpretivism is the core of the contemporary

debate over the type and extent of judicial power granted under the Constitution. The debate is linked

to the purpose of original intent when it comes to legal interpretation. Extreme non-interpretivists

believe that it is necessary for judges to instill the Constitution within the concepts of real justice in

accordance with today's society – the question is not about what the Constitution means, but rather

what it should mean. The aim of non-interpretivism is to translate the Constitution, which is an

27 Dworkin, Ronald (1977): Taking Rights Seriously, London: Duckworth.28 Mitchell, W.J.T., The Politics of Interpretation (Chicago: University of Chicago Press, 1983).

evolutionary document, into the text or to the understanding of the original intention and meaning

behind the text. Perhaps this is why some see non-interpretivism as a means that lessens the written

Constitution into a judicial opinion. Excessively restrained judges may narrow protections and rights

given by the laws and the Constitution. It is inappropriate for a judge to exercise restraint when doing

so may neglect his obligation – his duty to compare the law with the requirements set out by the

Constitution. The role of the judge is to interpret the words of the law reasonably. This form of

constitutional interpretation seeks the principles of constitutional judgments in the judge's own version

of society's fundamental values rather than in the document's broader terms and implications. Thus,

non-interpretivism is defined as rendering judgment upon the basis of other factors beyond the required

Constitutional components.

The Living Tree Doctrine & the Framers' Intent

In Canadian Law, the living tree doctrine is a constitutional doctrine of interpretation, that says

that a constitution is based on organicity, and must be read in broad and liberal terms, to adapt it to the

constantly changing times.

The living tree doctrine was entrenched into Canadian constitutional law since the landmark

case of Edwards v. Canada (Attorney General), also known as the famous “Persons Case”. Lord

Sankey stated that “The British North American Act planted in Canada a living tree capable of grown

and expansion within its natural limits. The Object of the Act was to grant a Constitution to Canada.

Like all written constitutions, it has been subject to development through usage and convention.”29 This

is sometimes called the Doctrine of Progressive interpretation. If the interpretation adheres to the

Framers' Intent, it remains rooted in the past, and the Constitution would not be reflective of society's

values and norms, and may even eventually fall into disuse. Under the living tree doctrine

interpretations can evolve alongside society, in order to deal with new conditions that were different or

did not exist when the original Constitution was framed.

The B.C. Motor Vehicle Reference probably marked what was known as non-interpretivism

versus interpretivism in Canadian common law30. Both of these approaches to Constitutional

interpretation recognize the “living tree doctrine” -- the idea that constitutional meaning must be

flexible enough to keep up with social change. The interpretivists stress judicial faithfulness to the text

and to the original understanding of the text, also known as the framers intent. interpretivists promptly

profess that new circumstances may require new applications of that original meaning. However, the

29 Edwards v. Canada (Attorney General), [1930] A.C. 124.30 Reference re Section 94(2) of the Motor Vehicle Act, [1985] 2 S.C.R. 486, para.53.

new meaning may not contradict or overrule the original meaning31. Even if the original understanding

is clear, the non-interpretivist may still support a antonymous judicial interpretation if that is what is

required to reach an equitable result under the existing circumstances. The judge's responsibility is to

keep the Constitution in accord with the times, not to keep the times in accord to the Constitution.

Interpreting the Charter: Judicial Philosophies Applied to the Court's Opinions

The Morgentaler decision proves that abortion policy and Charter rights cannot be separated.

The four judgments were not just technical legal disagreements over the meaning of the Charter, but

also disagreements over the new role of the Court opposite to Parliament. Activist judicial intervention

is justified whenever Parliament or a provincial government makes a clear mistake and enacts a law

that is evidently a violation of the Charter. The clear mistake allows for justification of the judicial

veto in theory, but it is rare in actual practice32. Again, judges committed to self-restraint are uneager to

strike down legislation, and attempt to minimize this problem by postponing judgment unless there is a

clear mistake. In the Morgentaler decision, Justice McIntyre's dissenting judgment is a illustrative

example of judicial self-restraint. The opposing ideology is judicial activism, which is apparent in the

decision of Justice Wilson. The judicial activist tends to minimize the problem and stress the

importance of protecting and promoting rights. The judicial activist is more willing to accept the

invitation to extend the boundaries of existing rights, than to strike down laws that infringe the

boundaries of those rights. It is very likely that a non-interpretivists approach to the Charter usually

produces judicial activism, while the non-interpretivist approach usually results in judicial self-

restraint33. In the Morgentaler case, an interest group wants to change a policy by challenging it as a

violation of the Charter. For this to succeed, would the groups not have to convince the judge to find

new meaning in the Charter right. Non-interpretivism then becomes the prerequisite for judicial

activism.

Justice Wilson's judgment was one of non-interpretivist judicial activism decisions. While the

four other judges who voted to quash the abortion law, whom limited their decision to procedural

violations of section 7, while Wilson said this would be wasting Parliament's time. To address only

procedural issues, Wilson wrote “Does section 7 confer on the pregnant women the right to decide for

herself whether or not to have an abortion?”34 Wilson was somewhat correct in this statement, but she

obviously did not share the concern of her four colleagues that the Court would be advised not to

31 Knopff, Rainer & F.L. Morton, Charter Politics (Toronto: Nelson Canada, 1992), 108-110.32 Ibid . Chapter 6.33 Ibid . 5, 116-117, 132.34 Morgentaler v. The Queen, [1988] 1 S.C.R. 30.

confront Parliament on the central issue. What the others saw as a danger to be avoided, Wilson saw as

an opportunity to be taken. For her, it was more important to use the Morgentaler case to declare a

Constitutional right to abortion for women than to discern the central issue by limiting the judgment to

procedural grounds. Wilson never referred to the the framer's intent, she chose simply to ignore it. To

Justice Wilson, the purpose of section 7 turned out to be a broad one. She wrote about the rights to

liberty and security of the person had the purpose of protecting and promoting “human dignity and

worth.” Her interpretation of section 7 led her to conclude that:

“the right to liberty...guarantees to every individual a degree of personal autonomy over important decisions intimately affecting their private lives...this class of protected decisions...the decision of a woman to terminate her pregnancy?...I have no doubt that it does.35”

Wilson found that it violated “the essence” of section 251:

“that the woman's capacity to reproduce is not to be subject to her own control. It is to be subject to the control of th state...this is a direct interference with her physical “person”...she is truly being treated as a means – a means to an end which she does not desire but over which she has no control. She is the passive recipient of a decision made by others as to whether her body is to be used to nurture a new life. Can there be anything that comports less with human dignity and self-respect? How can a woman in this position have any sense of security with respect to her person?”36

Her mention of various trimester stages left considerable room for Parliament to work. Justice

Wilson might have avoided the appearance of explicit judicial lawmaking had she left her decision at

that. But in the end, she came to her own conclusions in regards to the age of viability of the fetus,

stating “that it might fall somewhere in the second trimester.”37 There is definitely a very political

purpose of her closing remark. It could only have been intended to influence subsequent deliberations

in Parliament regarding this debate.

Just as Justice Wilson's opinion represented the activist end of the judicial spectrum, the

McIntyre with La Forest opinion represented the opposite end. McIntyre's decision was a model of

judicial self-restraint based on an interpretivist approach to the Charter. In McIntyre's perspective, the

abortion issue dealt with the individual rights of women and the unborn, none of whom were present in

this case. The appellants were all doctors charged with conspiracy to commit a crime punishable under

the Criminal Code. None of the doctors could claim that they had been denied a therapeutic abortion.

The Court's grappling with the section 7 issues was thus on a purely “hypothetical basis” and should

35 Ibid ., 171.36 Ibid., 173-174.37 Ibid ., 183.

have been avoided.38 McIntyre was reprimanding the other judges for being more concerned about

addressing a public dispute rather than adjudicating the legal dispute that was before them. Since the

rest of the Court decided the case on these issues, McIntyre reluctantly concluded that he must address

them also. Significantly, he preceded his section 7 analysis with a drawn-out speech on the new

political role of the Court under the Charter. To McIntyre, Charter interpretation could not be separated

from its context. McIntyre agreed with Dickson's observation that the court was now responsible for

“ensuring that the legislative initiatives pursued by our parliament and legislatures conform to the

democratic values expressed in the Charter and refrain from imposing or creating other values no so

based,”39 McIntyre saw the responsibility of the Court “not to solve or seek to solve...the abortion

issue,” but to determine whether section 251 violates any

“clearly expressed rights in the Charter...If a particular interpretation enjoys no support, express or reasonably implied, from the Charter, then the Court is without power to clothe such an interpretation with constitutional status...The Court must not decide on the basis of how many judges may favour 'pro-choice' or 'pro-life'.”40

This was clear employment of the interpretivist approach to determine the meaning of the

Charter. It emphasized judicial fidelity to the Constitution and as well as the framers intent behind it.

This would restrict initiation by insisting that it must be consistent with the original meaning. McIntyre

quickly disposed of Wilson's view, which was the exact opposite of his own: “The proposition that

women enjoy a constitutional right to have an abortion is devoid of support in the language of section 7

of the Charter or any other section.”41 McIntyre noted that the Charter does not mention abortion

whatsoever. Serving legislative history, which was ignored by the other judges, McIntyre. He

emphasized that the mention of abortion was no mistake. Parliamentary debate and the minutes of the

Special Parliamentary Committee on the Constitution showed that the framers deliberately exclude

abortion from the Charter.42 As for the alleged procedural violations of section 7, McIntyre was

doubting the evidence, which was drawn primarily from the Badgley and Powell reports, policy studies

commissioned by the federal and Ontario governments. McIntyre maintained that he would still “prefer

to place principal reliance upon the evidence given under oath in court.”43 McIntyre's tradition view of

the courts as adjudicators, not policy makers. He thought that the procedure mandated by section 251

38 Ibid. , 133.39 Ibid. , 137-138.40 Ibid. , 138-139.41 Ibid. , 143.42 Ibid ., 143-146.43 Ibid ., 149.

made the section 251(4) defense “illusory.”44 The majority's candid use of legislative facts was a clear

indicator of the Court's new role under the Charter. On procedural issues, McIntyre professes that the

defense provided by section 251(4) was a narrow one. He concluded by emphasizing that he was

expressing no opinion on the abortion issue. His decision was based exclusively on the fact that no

valid constitutional objection to section 251 has been raised.

A Final Analysis of the Judicial Opinions

The core of the Morgentaler decision was found in the Dickson-Lamer and Beetz-Estey

judgments (see Appendix B: Table 2). While there were important differences in reasoning between

these two opinions, together they defined a middle ground between Wilson and McIntyre's positions

(see Appendix B: Table 2). Unlike McIntyre, their goal was to strike down section 251. Unlike Wilson,

they limited their rulings of invalidity to procedural violations. Dickson concluded that “it will be

sufficient to investigate whether or not [section 251] meets the procedural standards of fundamental

justice.”45 Justice Wilson was right in claiming that the majority's reliance on procedural grounds add

up to avoiding the issue. For Dickson-Lamer and Beetz-Estey opinions, both principle and prudence

dictated avoiding the central issue. They sought to minimize the Court's role in shaping Canada's

abortion policy, while she sought to maximize it. The two middle ground opinions did not address the

question of whether the Charter created a right for women to decide for themselves to have an abortion

or not. In preparation of accepting the authority of Parliament to prohibit non-therapeutic abortions,

they focused on whether the defense allowed by section 251(4) (the certificate of approval from a TAC)

restricted section 7 right to “security of the person” in a manner conflicting with the principles of

fundamental justice. Both Dickson and Beetz opinions concluded that in reality, it was not available in

a timely and reasonable manner. The key to this finding was extensive reliance on both justices on

extrinsic evidence drawn from the Badgley Report (1977) and the (1987) Powell Report.46 For Chief

Justice Dickson, the problem was in Parliament's failure to define “health”, thus leaving the TACs

without an adequate standard to determine when lawful abortions should be permitted. Some TACs

interpreted “health” to encompass mental and psychological health, while others only considered it as

threats to physical health. The former definition made it relatively easy to get abortions while the latter

made it more difficult. This administrative non-uniformity was a serious procedural flaw in Dickson's

view. While Dickson-Lamer and Beetz-Estey opinions agreed on this point, they were divided over the

44 Ibid ., 151.45 Ibid ., 53.46 Report on Therapeutic Abortion Services in Ontario (Toronto: Ministry of Health, 1987). This study conducted by Dr.

Marion Powell, surveyed the availability of abortion services in Ontario.

actual seriousness of the procedural flaws of section 251. Dickson defines “security of the person” very

broadly, including the perception that section 7 acts as a right against state interference. Section 251

infringed this right by forcing a women to carry a fetus to term, and threatening her with legal

sanctions. This broad definition was pretty much the same as Wilson's, and suggests that any third party

determination of a woman's decision to abort her fetus would be unacceptable. Justice Beetz gave a

narrower interpretation of “security of the person”. He repeatedly stressed that it was the threat of

criminal sanctions, and not resections in regards to access to abortion, that created the section 7

violation. Unlike Dickson and Lamer, Beetz and Estey rejected the claim that any “threat to health”

was unconstitutionally vague. In sum, for Beetz and Estey, section 251 violated section 7 because it

imposed “unnecessary rules [that] impose delays which result in additional risk to women's health.”47

The problem with section 251 was not what it tried to achieve, but how it went about actually achieving

it. Beetz and Estey would require some procedural reconstruction of section 251(4), but not as much as

Dickson and Lamer. The last point to note in the Beetz-Estey opinion was the critique of Justice

Wilson's obiter dicta, which included all of the remarks and observations made that do not form a

necessary part of the Court's decision. Orbiter dicta may include words “introduced by way of

illustration, or analogy or argument.”48 In agreement with Wilson, these two judges verify that the state

did have a valid interest in protecting the fetus because it is potential human life. They also concurred

with Wilson that interests could not justify an arbitrary ban of abortion. Justice Beetz's message at this

point was also entirely obiter dicta then, which are not the subject of the judicial decision, even though

they may be correct and accurate statements of law. By quoting from another Supreme Court Justice,

Beetz sought publicly to challenge Wilson's claim to which she believed favored those of her gender,

because she could take a personal and sympathetic position. Like Wilson, Beetz expected a response

from Parliament to their final decision. Wilson attempted to send one type of message to Parliament,

while Beetz and Estey responded with another.

To sum up, five of the seven judges held that section 251 violated section 7 of the Charter, and

they all disagreed on why. There was no single, unified decision from the Court. Only one Justice

declared a constitutional right to abortion (Wilson). The other four members of the majority found only

procedural violations of the Charter, and even then, they could not agree upon the seriousness of those

infringements. The reasoning of the majority (Beetz and Estey, McIntyre and La Forest) would have

supported a reformed version of the then current law. Finally, all seven justices expressly recognized

the interests of the state in protecting the life of the unborn child. They disagreed, in four different

47 Morgentaler v. The Queen, [1988] 1 S.C.R. 30, 121-22.48 Garner, Bryan A. Black's Law Dictionary, 8th ed. (West Group, 1999)

ways, on when and how to decide when the fetus becomes a legal person. It was now left up to the

government that had the responsibility of rewriting the meaning of the Court's ruling, and to decide on

any new abortion legislation. This increasing feminist influence in Canadian politics was a necessary

requirement for the Morgentaler decision.

My Opinions and Concurring Decision

The Morgentaler case is a perfect example of how the plasticity of the Canadian Charter's

meaning can evoke Constitutional change based on polar opposite interpretations of the same section.

When freed from the constraint of original meaning, judges can create new rights that were not

intended, or even that were deliberately excluded, like the case of abortion. Canada likes to include

every aspect Constitutional law – the Charter and the notion of federalism – under the refuge of Lord

Sankey's living tree doctrine. The issues underlying the interpretivist versus the non-interpretivist

debate involves Constitutional philosophy, rather than nationality. By following the interpretivists view

of the living tree doctrine, judges are allowed to freely appoint new Constitutional regulations which in

turn would challenge the underlying logic of the written Constitution. If flexibility and adaptability to

social change are the most important virtue of a Constitution, why did Canada ever abandon the

unwritten version? Even if there is believability to the non-interpretivist approach, it would still seem

more advantageous in the case of an old Constitutional provision rather than a new or more recent one.

At the time the Court heard the Morgentaler case, the Charter was still young, and the its appeal turned

on Charter provisions (where the intent of the framers were already extremely clear). The Court has

been inconsistent in regards to managing its obligation to original intent. The judges have been quick to

hide behind the framers intent in controversial decisions. Judicial fidelity to original intent can better

the Courts decision, by making it clear that the Courts conclusion is not based on policy preferences of

the judges, but rather on on the Constitution itself. Should the Courts not analyze decisions based on

the framers' intent, which should only receive minimal weight when it comes to interpreting the

meaning of a Charter right?

The Morgentaler case reveals different ways to use the Charter to influence public policy. The

first is to directly challenge the validity existing laws – the path chosen by Morgentaler himself – to

invoke the principles of the Charter, to share public policy during the legislative process.49 When the

first plan of action succeeds in invalidating a policy, the second maneuver may serve to prevent its

reintroduction in some kind of amended format. The Courts inconsistent inclusion of non-

49 Eberts, Mary, The Use of Litigation Under the Canadian Charter of Rights and Freedoms as a Strategy for Achieving Change, in Neil Nevitte and Allan Kornberg, eds., Minorities and the Canadian State (Oakville, Ont.:Mosaic Press, 1985), 53.

interpretivism has maximized the judges power to the point that they sometimes seem to be able to

reach almost any result they desire. This was definitely the occurrence, as reflected in the four different

judgments delivered in the Morgentaler decision. While the two dissenters claimed that there was no

Constitutional violation. The division of the Court was not caused by technical disagreement over a

narrow point of law. Rather, it reflected a growing division on the Court between two different theories

of Charter review, and the different conceptions of the appropriate role of the judge. The Morgentaler

decision accurately reflects the growing division of the Court.

One side of the Court, represented by Justice Wilson, adopted an activist and a non-interpretivist

approach in applying the Charter. As evidence from her opinion in this case, Justice Wilson was

inclined to read in new and even unintended meaning to the broadly worded principles of the Charter,

and she was not disinclined to strike down Parliamentary enactments that failed to meet her version of

the Charter. The other side of the Court was represented by Justice McIntyre's judicial self-restraint and

his interpretivist approach to applying the Charter. His approach attempted to minimize judicial

discretion by limiting Charter rights to their original meaning, by the framers intent. These two

different approaches to interpreting the Charter lead to very different results. The oppositeness between

Wilson and McIntyre was profound and unmistakable. The decision to write a concurring or dissenting

opinion indicates a judge's dissatisfaction or disagreement with the majority's opinions. Wilson

supported the notion of individualism in regards to the section 7 violation claim (she supported a

broader interpretation of the Charter, while McIntyre supported a narrower interpretation of the

Charter). In many Charter cases, the policy preferences of a judge combined with his or her judicial

philosophy are more likely to determine the outcome than the text of the Charter. The Supreme Court's

relatively activist and non-interpretivist approach to the Charter is obvious. It was definitely a

democratic awakening as the Morgentaler case revealed a new look at abortion and Charter rights. The

more that judges influence the political process, the more politicians will seek to influence the selection

of judges. It seems as though democracies do not tolerate when the courts get too far ahead or fall too

far behind public opinion. In conclusion, the realization that the judges were making choices and not

simply applying the law of the Charter is apparent.

Perhaps it is because I am persuaded by my gender, or maybe it is because I can understand the

profound issues that were brought up by Justice Wilson, but I would have been in absolute agreement

with her opinions and decision in regards to the Morgentaler case. Judicial activism and non-

interpretivism seem to be able to serve the issue of maintaining some sort of balance between the

demands of today's society and the main interest and circumstances in question of those claiming that a

Charter violation has occurred. Just as Justice Wilson embraces the meaning of section seven in a broad

sense, including all life, liberty and freedom rights, as well as freedom of conscience. It is the woman

who has control over her own body, and has rights to decide for herself and her unborn child both of

their destines. In today's day and age, it is beyond unacceptable to allow the state control over the

reproduction of women. This is almost as barbaric as not considering women people at all! Section 251

does inhibit access to abortions, as does the entire TAC process and approval. Not only does it slow

down and delay access to legal abortion, it also further endangers the health of the woman – including

her physical, emotional and psychological health. A person is an entire being, not simply a body; thus,

health must include this entirety. Every aspect of a woman's health must be considered. By allowing

section 251 to continue to exist, would be an absolute violation of women's rights, including her

reproductive rights, as guaranteed by the Charter. The Charter is not situation-specific, it is more broad

and interpretable in order to allow it to apply to almost any situation where a violation of a right exists.

If all judges strictly adhered to the framers intent, not many laws would withstand society's pressures to

change and adapt to the times. It does not make sense to live in the past, so why would it make sense to

apply the past to now and to future Charter violations? Section 7 of the Charter of Rights and Freedoms

guarantees every individual rights to life, liberty and security. If section 251(4) continued to exist, it

would be a direct violation of section 7.

As for Justice Wilson's view that the abortion legislations violate section 2(a) of the Charter of

Rights and Freedoms: freedom of conscience. I also agree with this, because this cardinal freedom,

citizens should be allowed to think and to believe what they want. By keeping section 251 of the

Criminal Code in place, a woman's belief system, which is mostly consciously-held, would be entirely

violated. This implementation is a way of imposing state-held beliefs onto pregnant women, carrying a

fetus – a potential future citizen. In this sense, it can be questioned, noting the fact that section 2 of the

Charter says nothing about having fundamental freedoms be secularly based.

The Morgentaler case depicts how dramatic change has been. It provided not only that

litigating social change was no longer out of bounds, but that it is even possible that someone could

win. Social facts are for lawmakers, not law-interpreters. This case addressed the fairness of law, not

the guilt or innocence of the litigants. While the outcome of this case was not solely determined by the

Supreme Court's decision, it was unquestionably facilitated by it. Since there are so many different

philosophical approaches to interpreting the Charter, holding the position as a Supreme Court judge

should be an elected process, rather than an appointment process. This then, would partly solve many

issues around judicial activism and judicial restraint. Because the judges would be chosen by public

vote, and the public would most likely choose judges who reflect their principal morals and values,

there should not be issues concerning how much subjectivity they have applied to particular landmark

or controversial cases. In conclusion, I do believe that the majority in the Morgentaler case held

appropriate reasonings to strike down the laws prohibiting abortion under section 251 of the Criminal

Code. As Judith Jarvis Thomson wrote in her infamous moral philosophy paper, “A Defence of

Abortion”, that abortion does not violate the fetus's right to life but merely deprives the fetus of

something – the use of the pregnant woman's body – to which it has no right. Thus, it is not that by

terminating her pregnancy a woman violates her moral obligations, but rather that a woman who carries

the fetus to term is a 'Good Samaritan' who goes beyond her obligations.50

50 Thomson, J. “A Defense of Abortion”, Philosophy and Public Affairs 1:1 (Autumn 1971): 47-66

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APPENDIX A:

Table 1: A Comparison of the Main Philosophical Approaches to Interpreting the Canadian Charter of Rights

and Freedoms, 1982

JUDICIAL RESTRAINT/ NON-INTERPRETIVISM JUDICIAL ACTIVISM/ INTERPRETIVISM

1. The Constitution is the supreme, paramount,

fundamental, permanent law of Canada

1. The Constitution is an incomplete, indeterminate

document suffused with conflicting and obsolete

provisions at times, in which was created in another

realm of the past (framers intent.

2. The ultimate source of the Constitution is the fathers

of the Confederation; the human foundation of the

Constitution is the creation of the Charter

2. The ultimate source of the Constitution is the elite

governments and the Supreme Court of Canada,

whom continuously revise the Constitution, making

it, through an evolutionary process, a "living

document."

3. Interpretation of the Constitution is to be governed

by long-established rules of interpretation, which

focus on such factors as the limited language of the

written text, the context of the provisions, and the

intent of the Framers.

3. Constitutional interpretation is not to be rooted in

the text, context, or intent of the document; rather

the meaning is derived from the same political and

cultural environment that generates other public

policy (society).

4. The judiciary is empowered and equipped only to

interpret the Constitution and to provide narrowly

tailored relief only in concrete cases involving

clearly identifiable parties, specific issues, and

tangible harm.

4. The Supreme Court of Canada is the ultimate source

of Constitutional law in Canada, and is empowered

and equipped to provide broad relief to abstract or

non-identifiable person(s) in disputes involving

vaguely defined harm and/or indistinct issues.

5. The most basic purpose of the Constitution is to

provide the stability necessary for the survival and

prosperity of the legal system. Additionally, the

Preamble of the Constitution enumerates two

purposes (rule of law and supremacy of God) that

Canada's constitutional system is to promote.

5. The ultimate purpose of the Constitution is to

promote "autonomy" and "federalism" as defined by

each individual for himself/herself, and as set forth

by the government through up-to-date policies that

are generally accepted and agreed upon due to their

reasonableness.

6. The Constitution embodies a multiplicity of distinct

principles, including democratic sovereignty and

self-government, life, liberty, due process of law,

responsible government, equal protection of the

laws... Correlative principles include political

ideologies, federalism, and the concept of the 3

pillars as the separation of powers.

6. The Constitutional system rests on a few vague,

fundamental principles, paramount among which

are "freedom" and "security of person"

Table 1.

The differences between the main philosophical approaches to interpreting the Charter

APPENDIX B:

Table 2: A Brief Summary and Comparison of Each Supreme Court Justices' Decisions

Supreme Court Justices Judges Decisions

Chief Justice Dickson & Justice Lamer - Section 251 of the Criminal Code violates section 7 of the Charter- This violation is not justifiable under section 1 of the Charter

Justice Beetz & Justice Estey - Agreed with Dickson-Lamer, except for different reasons (concurring)

Justice McIntyre & Justice La Forest - Section 251 does not violate section 7 of the Charter- Because of this, no section 1 decisions regarding the Charter was required (dissenting)

Justice Wilson - Agreed with Dickson's opinions, but for different reasons (concurring)

Table 2.Supreme Court Justices Separate Decisions