Morgentaler v. The Queen
Encyclopedia
Morgentaler v. The Queen, [1976] 1 S.C.R. 616 is a famous decision of the Supreme Court of Canada
where Henry Morgentaler
unsuccessfully challenged the prohibition of abortion in Canada
under the Criminal Code
. The Court found the abortion law
was appropriately passed by Parliament
under the laws of federalism
. This was the first of three Supreme Court decisions on abortion
that was brought by Morgentaler.
Morgentaler challenged the law on two grounds. First, on the grounds that modern abortion techniques were no longer a threat to the woman's health so the dangers that the law was intending to protect no longer applied and consequently the law no longer had a valid criminal purpose required under the federal government
's criminal law-making power under section 91(27) of the Constitution Act, 1867
. Second, on the grounds that the provisions violated the Bill of Rights
.
purpose in prohibiting abortion even without there being a danger to the woman. The general purpose of the law was to "protect the state interest and the foetus", which was sufficient to invoke the criminal law power under the Constitution.
The Court also rejected the challenge on the basis that it violated the Bill of Rights.
(1988).
In 1993, Morgentaler also successfully challenged a provincial attempt to regulate abortion in the decision of R. v. Morgentaler
(1993).
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
where Henry Morgentaler
Henry Morgentaler
Henry Morgentaler, CM is a Canadian physician and prominent pro-choice advocate who has fought numerous legal battles for that cause.-Early life:...
unsuccessfully challenged the prohibition of abortion in Canada
Abortion in Canada
Abortion in Canada is not limited by the law . While some non-legal obstacles exist, Canada is one of only a few nations with no legal restrictions on abortion. Regulations and accessibility vary between provinces....
under the Criminal Code
Criminal Code
A criminal code is a document which compiles all, or a significant amount of, a particular jurisdiction's criminal law...
. The Court found the abortion law
Abortion law
Abortion law is legislation and common law which pertains to the provision of abortion. Abortion has been a controversial subject in many societies through history because of the moral, ethical, practical, and political power issues that surround it. It has been banned frequently and otherwise...
was appropriately passed by Parliament
Parliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
under the laws of federalism
Canadian federalism
Canada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...
. This was the first of three Supreme Court decisions on abortion
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
that was brought by Morgentaler.
Background
Dr. Morgentaler was prosecuted, for openly providing abortions, by the provincial government of Quebec three times, but they failed to secure a conviction at a jury trial:- The first Quebec case was in 1973. Dr. Morgentaler used the defence of necessity, that abortions were necessary for his patients' life or health. The jury acquitted him. However, Quebec's provincial appeal court reversed the acquittal and replaced it with a conviction and a prison term.
- In 1975, a jury in Quebec again found Morgentaler not guilty. However, Morgentaler was already in prison. In 1975, under Prime Minister Pierre TrudeauPierre TrudeauJoseph Philippe Pierre Yves Elliott Trudeau, , usually known as Pierre Trudeau or Pierre Elliott Trudeau, was the 15th Prime Minister of Canada from April 20, 1968 to June 4, 1979, and again from March 3, 1980 to June 30, 1984.Trudeau began his political career campaigning for socialist ideals,...
, the law of Canada was changed so that courts could not replace a jury acquittal by a conviction (however, appeal courts can still overturn an acquittal and order a new trial). This is called the Morgentaler Amendment. - After Morgentaler was released from prison, Quebec again brought a case against him. A jury acquitted him for the third time. In 1976, the Parti QuébécoisParti QuébécoisThe Parti Québécois is a centre-left political party that advocates national sovereignty for the province of Quebec and secession from Canada. The Party traditionally has support from the labour movement. Unlike many other social-democratic parties, its ties with the labour movement are informal...
was elected and announced that it would not prosecute Dr. Morgentaler, so the repeated prosecutions came to an end.
Morgentaler challenged the law on two grounds. First, on the grounds that modern abortion techniques were no longer a threat to the woman's health so the dangers that the law was intending to protect no longer applied and consequently the law no longer had a valid criminal purpose required under the federal government
Politics of Canada
The politics of Canada function within a framework of parliamentary democracy and a federal system of parliamentary government with strong democratic traditions. Canada is a constitutional monarchy, in which the Monarch is head of state...
's criminal law-making power under section 91(27) of the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
. Second, on the grounds that the provisions violated the Bill of Rights
Canadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
.
Reasons of the court
The Court, split 6 to 3, held that the abortion provisions were still valid as there was still a criminal lawCriminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
purpose in prohibiting abortion even without there being a danger to the woman. The general purpose of the law was to "protect the state interest and the foetus", which was sufficient to invoke the criminal law power under the Constitution.
The Court also rejected the challenge on the basis that it violated the Bill of Rights.
Aftermath
It would not be until 13 years later, after the introduction of the Charter, that Morgentaler successfully challenged the provisions in the decision of R. v. MorgentalerR. v. Morgentaler
R. v. Morgentaler [1988] 1 S.C.R. 30 was a decision of the Supreme Court of Canada wherein the abortion provision in the Criminal Code of Canada was found to be unconstitutional, as it violated a woman's right under section 7 of the Canadian Charter of Rights and Freedoms to "security of person"...
(1988).
In 1993, Morgentaler also successfully challenged a provincial attempt to regulate abortion in the decision of R. v. Morgentaler
R. v. Morgentaler (1993)
R. v. Morgentaler [1993] 3 S.C.R. 463, was a decision by the Supreme Court of Canada invalidating a provincial attempt to regulate abortions in Canada. This followed the 1988 decision R. v. Morgentaler, which had struck down the federal abortion law as a breach of section 7 of the Canadian Charter...
(1993).
External links
- Full text of Supreme Court decision from canlii.org http://www.canlii.org/en/ca/scc/doc/1975/1975canlii8/1975canlii8.html and lexum http://scc.lexum.umontreal.ca/en/1975/1976rcs1-616/1976rcs1-616.html