R. v. Morgentaler (1993)
Encyclopedia
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 of Rights and Freedoms
. In 1993, the provincial regulations were ruled to be a criminal law
, which would violate the Constitution Act, 1867
. That Act assigns criminal law exclusively to the federal Parliament.
rights activist Henry Morgentaler
planned to open an abortion clinic
in Nova Scotia
. The provincial government responded by passing legislation that would outlaw such clinics (as a provincial offence) and limit abortions to recognized hospital
s. This regulation was not limited to abortion but also covered liposuction
and other procedures; indeed, the provincial government claimed it was merely fighting the privatization of the health care
system (since Morgentaler's clinics were private). The penalty set out in the legislation would be a fine of between $10,000 to $50,000. Undaunted, Morgentaler went ahead and opened his clinic, supposedly to receive potential patients for his other clinics outside Nova Scotia. Eventually, however, Morgentaler informed the press that he had indeed carried out abortions in his Nova Scotia clinic. The government charged him for this, but Morgentaler challenged the constitutionality of the law.
issue. Even here, the Court limited itself by not considering the issue of whether abortion relates to peace, order and good government
, which would definitely make it federal jurisdiction. Justice John Sopinka
, writing for a unanimous Court, simply agreed with the argument that these specific abortion regulations, rather than being a valid provincial regulation of hospitals and medicine
, instead constituted an invalid criminal law. As a result, all of these regulations were struck down, including the ones not dealing with abortion.
The Court began by noting that the legislation was always meant to target specific services, and above all else abortion. In considering the law's pith and substance
, this raised the question of whether the provincial government's true motives for enacting the legislation was not to regulate hospitals or medicine, but to limit what it saw as "the socially undesirable conduct of abortion" (which would be a criminal law function). The Court also noted that in Morgentaler v. The Queen
(1975), it had been found that the abortion law later struck down in 1988 had been criminal law, and as such it had been appropriately passed by Parliament as opposed to by a provincial legislature. This also raised the question of whether abortion laws are designed to deal with "socially undesirable conduct." The Court then quoted Nova Scotia's Hansard
, which reinforced the notion that the provincial government saw Morgentaler's clinics as a "public evil
which should be eliminated" and minimized the argument that the law had been meant to combat privatization.
The Court observed that the fines were serious penal considerations, a typical feature of criminal law.
The provincial regulations were also ruled to be very similar to the federal abortion law struck down in 1988 (although Nova Scotia did not resurrect the Therapeutic Abortion Committee
s of the federal law). The similarities were problematic to the provincial law, since similarities between provincial laws and laws in the Criminal Code of Canada
have, in the past, led to provincial laws being struck down as ultra vires
the provincial governments.
referred to this Morgentaler decision as "remarkable," noting that the regulation of the procedures besides abortion had been struck down after the Court had referred to them as a "smokescreen" for the "true purpose of the legislation." In Hogg's view, the Court had done this under the doctrine of colourability
, which holds that a law designed to look like it was enacted within the powers of the relevant legislative body, but in fact attempting to regulate a matter within another level of government's authority, should be struck down. The Court, however, had emphasized pith and substance, and claimed that it did not employ the colourability doctrine in this particular case.
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...
invalidating a provincial
Provinces and territories of Canada
The provinces and territories of Canada combine to make up the world's second-largest country by area. There are ten provinces and three territories...
attempt to regulate abortions 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....
. This followed the 1988 decision R. v. Morgentaler
R. 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"...
, which had struck down the federal 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...
as a breach of section 7
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. In 1993, the provincial regulations were ruled to be a criminal law
Criminal 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...
, which would violate 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...
. That Act assigns criminal law exclusively to the federal Parliament.
Background
Having won his case in R. v. Morgentaler, abortionAbortion
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...
rights activist 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:...
planned to open an abortion clinic
Abortion clinic
An abortion clinic is a medical facility that primarily performs or specializes in abortions. Such clinics may be public medical centers or private medical practices.-Canada:*There were 197 abortion providers in Canada in 2001....
in Nova Scotia
Nova Scotia
Nova Scotia is one of Canada's three Maritime provinces and is the most populous province in Atlantic Canada. The name of the province is Latin for "New Scotland," but "Nova Scotia" is the recognized, English-language name of the province. The provincial capital is Halifax. Nova Scotia is the...
. The provincial government responded by passing legislation that would outlaw such clinics (as a provincial offence) and limit abortions to recognized hospital
Hospital
A hospital is a health care institution providing patient treatment by specialized staff and equipment. Hospitals often, but not always, provide for inpatient care or longer-term patient stays....
s. This regulation was not limited to abortion but also covered liposuction
Liposuction
Liposuction, also known as lipoplasty , liposculpture suction lipectomy or simply lipo is a cosmetic surgery operation that removes fat from many different sites on the human body...
and other procedures; indeed, the provincial government claimed it was merely fighting the privatization of the health care
Health care
Health care is the diagnosis, treatment, and prevention of disease, illness, injury, and other physical and mental impairments in humans. Health care is delivered by practitioners in medicine, chiropractic, dentistry, nursing, pharmacy, allied health, and other care providers...
system (since Morgentaler's clinics were private). The penalty set out in the legislation would be a fine of between $10,000 to $50,000. Undaunted, Morgentaler went ahead and opened his clinic, supposedly to receive potential patients for his other clinics outside Nova Scotia. Eventually, however, Morgentaler informed the press that he had indeed carried out abortions in his Nova Scotia clinic. The government charged him for this, but Morgentaler challenged the constitutionality of the law.
Ruling
Upon receiving the issue, the Supreme Court declined to decide the case on the basis of the Charter and limited itself to the federalismCanadian 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...
issue. Even here, the Court limited itself by not considering the issue of whether abortion relates to peace, order and good government
Peace, order and good government
In many Commonwealth jurisdictions, the phrase "peace, order and good government" is an expression used in law to express the legitimate objects of legislative powers conferred by statute...
, which would definitely make it federal jurisdiction. Justice John Sopinka
John Sopinka
John Sopinka, QC was a Canadian lawyer and puisne justice on the Supreme Court of Canada, the first Ukrainian-Canadian appointed to the high court....
, writing for a unanimous Court, simply agreed with the argument that these specific abortion regulations, rather than being a valid provincial regulation of hospitals and medicine
Medicine
Medicine is the science and art of healing. It encompasses a variety of health care practices evolved to maintain and restore health by the prevention and treatment of illness....
, instead constituted an invalid criminal law. As a result, all of these regulations were struck down, including the ones not dealing with abortion.
The Court began by noting that the legislation was always meant to target specific services, and above all else abortion. In considering the law's pith and substance
Pith and substance
Pith and substance is a legal doctrine in Canadian constitutional interpretation used to determine under which head of power a given piece of legislation falls...
, this raised the question of whether the provincial government's true motives for enacting the legislation was not to regulate hospitals or medicine, but to limit what it saw as "the socially undesirable conduct of abortion" (which would be a criminal law function). The Court also noted that in Morgentaler v. The Queen
Morgentaler v. The Queen
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...
(1975), it had been found that the abortion law later struck down in 1988 had been criminal law, and as such it had been appropriately passed by Parliament as opposed to by a provincial legislature. This also raised the question of whether abortion laws are designed to deal with "socially undesirable conduct." The Court then quoted Nova Scotia's Hansard
Hansard
Hansard is the name of the printed transcripts of parliamentary debates in the Westminster system of government. It is named after Thomas Curson Hansard, an early printer and publisher of these transcripts.-Origins:...
, which reinforced the notion that the provincial government saw Morgentaler's clinics as a "public evil
Evil
Evil is the violation of, or intent to violate, some moral code. Evil is usually seen as the dualistic opposite of good. Definitions of evil vary along with analysis of its root motive causes, however general actions commonly considered evil include: conscious and deliberate wrongdoing,...
which should be eliminated" and minimized the argument that the law had been meant to combat privatization.
The Court observed that the fines were serious penal considerations, a typical feature of criminal law.
The provincial regulations were also ruled to be very similar to the federal abortion law struck down in 1988 (although Nova Scotia did not resurrect the Therapeutic Abortion Committee
Therapeutic Abortion Committee
A Therapeutic Abortion Committee refers to a Canadian committee of three medical doctors who would decide whether an abortion fit an exemption to the Criminal Code of Canada, which only permitted lawful abortion if continuation of a pregnancy would cause a woman medical harm...
s of the federal law). The similarities were problematic to the provincial law, since similarities between provincial laws and laws in the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
have, in the past, led to provincial laws being struck down as ultra vires
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
the provincial governments.
Commentary
In his book Constitutional Law of Canada, constitutional scholar Peter HoggPeter Hogg
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....
referred to this Morgentaler decision as "remarkable," noting that the regulation of the procedures besides abortion had been struck down after the Court had referred to them as a "smokescreen" for the "true purpose of the legislation." In Hogg's view, the Court had done this under the doctrine of colourability
Doctrine of Colourability
The doctrine of colourability is the idea that when the legislature wants to do something that it cannot do within the constraints of the constitution, it colours the law with a substitute purpose which will still allow it to accomplish its original goal....
, which holds that a law designed to look like it was enacted within the powers of the relevant legislative body, but in fact attempting to regulate a matter within another level of government's authority, should be struck down. The Court, however, had emphasized pith and substance, and claimed that it did not employ the colourability doctrine in this particular case.