AND LEGAL DEVELOPMENTS
Law and Government Division
Reviewed 18 August 1998
TABLE OF CONTENTS
A. Jurisdiction over Health Issues
The 1969 Law
D. The Badgley Committee
E. The Charter of Rights and Freedoms
and the Morgentaler Decision
F. Protecting the Fetus: Borowski
G. Provincial Jurisdiction over Abortion
A. Government Action
AND LEGAL DEVELOPMENTS*
Abortion is a subject that
has troubled Canadian society for some time. Because it involves deeply
held, and widely varying, viewpoints about individual rights, societal
responsibilities, moral norms and the role of women in society, abortion
is a divisive and potentially disruptive issue. In early 1988, the Criminal
Code provisions governing abortion procedures were struck down by
the Supreme Court of Canada. A new abortion bill (Bill C-43) was introduced
in Parliament late in 1989 in the hope that compromise legislation would
resolve the abortion debate at the federal level. The bill was defeated
in the Senate by an unprecedented tied vote in January 1991.
A. Jurisdiction over Health Issues
There has been considerable
debate over the limits of federal responsibility for, or jurisdiction
over, abortion. Because abortion requires a medical procedure, it is a
health issue. To the extent that it is desirable to prohibit abortions,
or establish the conditions under which they cannot be performed, jurisdiction
will lie with the federal government, because prohibition of an action
for health or moral reasons is constitutionally associated with criminalization.
To the extent that it is desirable to regulate abortions, or the
conditions under which they can be performed, jurisdiction will lie with
the government that has the right or duty to regulate such health issues.
The Constitution Act,
1867 does not specifically assign "health" issues to one
or the other level of government. Federal control over health is most
often exercised as part of the specific federal power over "criminal
law ... including the procedure in criminal matters" (section 91(27)).
The Narcotics Control Act and the criminal penalties in the Food
and Drugs Act are examples of the federal power to criminalize and
punish conduct dangerous to health or to society.
Other aspects of federal
jurisdiction may also apply to health-related issues, although the boundaries
are generally less clear than in the case of the criminal law. If a national
emergency arose, such as an epidemic, the peace, order and good government
power might well allow federal action. A serious problem that attained
a national dimension, such as air pollution, might similarly give the
federal government the authority to enact health-related legislation.
As well, the federal government can regulate health matters in areas already
under its specific jurisdiction, such as penitentiaries or the military.
Finally, there is the "federal
spending power." This is the term normally used when a national social
program is formally underwritten by the federal government, notwithstanding
that the object of the program is within provincial jurisdiction. To the
extent that the federal government has the funds available, it can influence
provincial priorities and set national standards by offering federal funding
for programs which are within provincial jurisdiction.
The Canada Health Act
is one of the best-known examples of use of the spending power. In return
for compliance with certain broad principles with respect to health care,
the federal government makes per capita payments to the provinces.
This does not, however, give the federal government the right to regulate
provincial health care directly. There is considerable debate as to how
far the federal government could go in enforcing national standards, or
in imposing stricter conditions, before it would interfere with provincial
over health issues is more straightforward. The establishment, maintenance
and management of hospitals is specifically placed under provincial authority
by section 92(7) of the Constitution Act, 1867. The courts have
given the provinces extensive jurisdiction over public health as a local
and private matter under section 92(16). The regulation of the health
professions, like that of other professions, comes within the provincial
power over property and civil rights within the province, or section 92(13).
Given this, the Federal Court of Appeal in 1983 found that "the general
subject of the performing of abortions is also a provincial matter subject
to any prohibitions of the criminal law."
Throughout history, attitudes
towards abortion have been influenced by religious beliefs, social mores,
and attitudes towards women and the family. Recently, they have increasingly
been affected by technological advances as well, including both simpler
and safer abortion techniques and improved techniques for understanding
Historically, our abortion
law is modelled on the English approach. Until the nineteenth century,
abortion was a common-law offence and was criminal only if it occurred
after "quickening." This was consistent with classical approaches
and probably had the additional virtue of minimizing the evidentiary problems
in proving pregnancy. The actual time of quickening or being "quick
with child," has always been an arbitrary one, but it is usually
taken to be when the mother herself feels or thinks she feels movement
(this can vary from the sixteenth to the twentieth week) or when somebody
examining her can feel or see some movement.
The law on criminal abortion
was first codified in England in 1803, when the abortion of a quick fetus
became a capital offence, while abortions performed prior to quickening
incurred lesser penalties. In 1837, the distinction as to quickening was
dropped, together with the death penalty. In 1861, the still current Offences
Against the Person Act was passed, making clear for the first time
that a women procuring her own abortion was also guilty of a crime.
The first Canadian criminal
law on abortion was passed in 1869. It incorporated pre-Confederation
provincial statutes, and provided for a penalty of life imprisonment for
the person procuring the miscarriage. While such statutes reflected societal
and religious objectives of protecting the fetus, they were also influenced
by concerns about the mother's health. Nineteenth century abortions were
medically dangerous and, in a less regulated society with little concept
of health care programs, often performed by non-physicians.
Because the 1861 British
legislation prohibiting abortion made no provisions for the mother's life
or health, it was increasingly challenged by the medical and legal communities.
In 1938, the British Medical Association set up a special committee to
consider the medical aspects of abortion. It recommended that the law
be revised to allow for some therapeutic abortions.
Also in 1938, a British
doctor, Dr. Aleck Bourne, reported to the authorities that he had, with
the consent of her parents and for no fee, terminated the pregnancy of
a 14 year-old girl violently raped by four soldiers. A test case ensued.
In the Bourne case, in his instructions to the jury, Mr. Justice
Macnaghten said that an abortion could be performed in good faith to protect
the life and health of the mother, and that no clear distinction could
be made between a threat to life and a threat to health. The Bourne
defence was subsequently adopted by most common-law jurisdictions, and
would probably have been applicable in Canada prior to the 1969 abortion
As abortion gradually became
decriminalized, in the 1960s and after, the first legal regimes dealt
with indicators, the presence of which would permit an abortion. This
approach has been described as "indication-regulation." Generally,
the indicators for abortion broke down into five categories: danger to
life; danger to health (physical or mental); eugenic (fetal distress);
criminological or juridical (rape and incest); and socio-economic. Various
countries decided that various indicators were sufficient for a legal
abortion, but the continuum of indicators is usually taken to be somewhat
- no indicator acceptable (abortion totally
- threat to the life of the woman;
- threat to the physical health of the
- rape or incest;
- fetal deformity;
- threat to the mental or psychological
health of the woman;
- social or economic hardship;
- no indicator necessary (abortion on request).
In 1973, the Supreme Court
of the United States delivered its judgment in Roe v. Wade.
The Court held that, while the fetus was not a "person" entitled
to independent constitutional protection, the state did have an interest
in protecting potential life. It said that during the first trimester,
when abortion is less hazardous to a woman's health than carrying a child
to term, the state could only require that a licensed physician perform
the medical procedure. During the second trimester, the state had a compelling
interest in protecting the mother's health, and could regulate her access
to abortion procedures in her own interest. (It is this concept of the
right of the state to protect maternal health that has generated some
of the fiercest legal battles in the past decade or two in the United
States.) During the third trimester, the Court ruled that the interest
of the state in preserving the fetus became compelling. This argument
is largely based on the premise that at this point the fetus becomes viable,
but the logic has not gone unchallenged by either the pro-choice or the
Approaches to abortion law
were greatly influenced by the thalidomide tragedy of the 1960s, and most
modern abortion law is based on indication-regulation, time-regulation
(as approved in Roe v. Wade), or a combination of the two.
Where time-regulation is concerned, the importance of the state concern
in protecting the fetus normally increases dramatically as the chance
of independent existence for the fetus increases. Viability, however,
is a concern only when considering the balance between the interest of
the state in protecting the fetus and the rights of the mother. Neither
the pro-life nor the pro-choice movement considers viability to be an
issue in terms of protecting independent fetal rights.
Viability, in any case,
is a medical and not a legal concept. The British courts recently dealt
with this issue in C. v. S., a case in which the putative
father attempted to stop his female companion, who was 18-21 weeks pregnant,
from having an abortion. British law prohibits the destruction of "the
life of a child capable of being born alive," and the Court of Appeal
found as follows:
At the [18th to 21st
week] the cardiac muscle is contracting and primitive circulation
is developing. Thus the fetus could be said to demonstrate real and
discernible signs of life. On the other hand, the fetus, even if it
is then delivered by hysterotomy, would be incapable of breathing
either naturally or with the aid of a ventilator. It is not a case
of fetus requiring a stimulus or assistance. It cannot and will never
be able to breathe.
The Canadian Medical Association
defines an induced abortion as the active termination of a pregnancy before
fetal viability: "According to current medical knowledge, viability
is dependent on fetal weight, degree of development and length of gestation;
extrauterine viability may be possible if the fetus weighs over 500 [grams]
or is past 20 weeks gestation, or both."
C. The 1969 Law
In 1969, Parliament amended
the Criminal Code in a number of important respects, including
specifying in section 287 (then section 237) when an abortion could be
legally performed. The existing section, which made it an offence to procure
the miscarriage of a pregnant female, was retained, but a number of new
subsections were added. The most important, subsection (4), stated that
the criminal sanctions against abortion would not apply to a doctor performing
an abortion or a female obtaining one if the abortion had been previously
approved by the therapeutic abortion committee of an accredited or approved
hospital, and was also carried out in an accredited or approved hospital.
A therapeutic abortion committee had to comprise at least three doctors,
none of whom could at the same time perform abortions.
The therapeutic abortion
committee was required to certify in writing that, in the opinion of a
majority of its members, the continuation of the pregnancy would or would
be likely to endanger the life or health of the female. No further definition
of "health" was given, and there was even some uncertainty as
to whether or not the word included mental or psychological health. Instead
of defining the circumstances in which an abortion was permissible, Parliament
stated that abortion was legal if a therapeutic abortion committee said
it was legal.
In short, in 1969 Parliament
replaced judicial control after the fact with medical control before the
fact. Given Bourne, an abortion performed to save the life of the
mother or to prevent a serious threat to her health would probably have
been defensible before 1969. Indeed, the decision of the Supreme Court
in the first Morgentaler case in 1975 seemed to suggest as much.
The Court held that Dr. Morgentaler could not use the Bourne, or
necessity, defence because the existence of therapeutic abortion committees
meant that only in the most exceptional circumstances would it be necessary
to breach the Criminal Code to protect the mother. Having such
committees, which could give prior approval for abortions, meant that
doctors who performed abortions need not run the risk of a criminal charge;
however, it also meant that they could not substitute their own judgment
for that of the committee, except in cases of emergency.
As the law came into effect,
it became evident that the interpretation of the words "would or
would be likely to endanger [the] life or health" of a pregnant female
varied widely across the country. Additionally, the uneven distribution
of hospitals with therapeutic abortion committees gave rise to concerns
as to whether legal abortions were equally available to women in various
parts of the country. Even if four separate doctors could be found who
felt that a female's health was endangered, a legal abortion could not
be performed in the absence of a therapeutic abortion committee appointed
by an accredited or approved hospital.
Consequently, in 1975 a
Committee on the Operation of the Abortion Law was appointed "to
conduct a study to determine whether the procedure provided in the Criminal
Code for obtaining therapeutic abortions [was] operating equitably
across Canada" and to make recommendations "on the operation
of this law rather than recommendations on the underlying policy."
D. The Badgley Committee
The Committee, known as
the Badgley Committee after its Chair, reported in January 1977. It found,
quite simply, that "the procedures set out for the operation of Abortion
Law are not working equitably across Canada." In large part, this
was because the intent of the law was neither clear nor agreed upon, although
the procedures set out in the law were specific. The debate over abortion
had not been resolved but had, to some extent, been shifted from the criminal
law to local communities and the medical profession.
The procedure for obtaining
a legal abortion under the 1969 law depended entirely upon access to a
therapeutic abortion committee at an accredited or approved hospital.
In turn, access to a therapeutic abortion committee depended upon the
distribution of eligible hospitals, the location of hospitals with therapeutic
abortion committees, the use of residency and patient quota requirements,
and the distribution of obstetrician-gynaecologists within and among provinces.
Sharp regional disparities in all of these factors meant the Criminal
Code procedure for obtaining a legal therapeutic abortion was in practice
illusory for many Canadian women.
The Committee found that
there was much concern among physicians about the definition of health,
and little uniformity as to how the concept was interpreted. The definition
of the World Health Organization was recognized by the Government of Canada,
several provincial governments and the Canadian Medical Association. It
stated: "Health is a state of complete physical, mental and social
well-being and not merely the absence of disease or infirmity." The
Committee concluded that, in the absence of other formally endorsed statements,
this definition could be "considered one basis for the interpretation
of the word `health' in the Abortion Law."
There was also considerable
variance across the country in the way the issue of "consent"
was handled. The age at which a young, unmarried female is deemed capable
of giving consent to medical care and treatment is within provincial jurisdiction,
and the Committee found that uncertainties in provincial laws had been
allowed to affect the hospitals' consent requirements for carrying out
abortions. In provinces where the age of consent to other medical procedures
was lower than the age of majority, for example, a substantial number
of hospitals required a woman to have reached the age of majority in order
to consent to having an abortion. The Committee also noted that although
there was no known legal requirement for the consent of the father to
a therapeutic abortion, more than two-thirds of the hospitals it surveyed
which carried out abortions required the consent of the husband.
The issue of consent is
an interesting example of the constitutional problem with respect to abortions.
The federal government, using the criminal law power, had legislated that
abortions approved by a therapeutic abortion committee would not be subject
to the Criminal Code prohibition against abortions. Prior approval
by such a committee would be an absolute defence to any criminal charge.
The standard set was danger to the mother's life or health.
If a therapeutic abortion
committee, having formed the opinion that the life or health of the female
was or was likely to be endangered by the pregnancy, further required
that the parents of an unmarried minor or the husband of the woman should
consent to the procedure, it would be denying a woman access to a legal
abortion for reasons unrelated to the Criminal Code. The constitutional
issue is not so much that abortions were unevenly available across the
country, but that there was unequal access to a criminal defence. This
inequality in the application of the criminal law, moreover, was brought
about to some extent by differences in provincial health regulation standards.
The Badgley Committee also
inquired whether hospital employees were required to participate in therapeutic
abortion procedures regardless of their personal views. It found that
this was normally dealt with as an employer-employee issue, rather than
as an issue of conscience. The general policy of hospitals was that, within
designated job categories, employees were expected to accept the general
duties assigned to them. In particular, "according to widespread
custom and the prevailing policies of hospitals, it was not considered
to be a nurse's prerogative to `pick and choose' patients with whom she
or he [would or would not] work." The Committee concluded that some
hospital employment procedures relating to the abortion procedure might
not be in compliance with provincial human rights codes prohibiting discrimination
on the grounds of creed.
The Committee underlined
that "the options are few concerning induced abortion ... The critical
social choices are between two sensitive issues, induced abortion and
family planning." In the Committee's opinion, effective family planning
practices could sharply reduce the chances of unwanted conception and,
hence, the number of abortions.
E. The Charter of Rights and Freedoms and
the Morgentaler Decision
In 1982, the Charter
of Rights and Freedoms came into effect, and in 1983 Dr. Henry Morgentaler
(together with two other doctors) was charged with unlawfully procuring
miscarriages in his Toronto clinic. By the time the case reached the Supreme
Court, the numerous legal issues had been effectively reduced to whether
the abortion provisions of the Criminal Code infringed in an unjustified
way a woman's right to "life, liberty and security of the person"
guaranteed by section 7 of the Charter.
The relevant sections of
the Charter read:
Section 7: Everyone
has the right to life, liberty and security of the person and the
right not to be deprived thereof except in accordance with fundamental
Section 1: The Canadian
Charter of Rights and Freedoms guarantees the rights and freedoms
set out in it subject to such reasonable limits prescribed by law
as can be demonstrably justified in a free and democratic society.
When a court decides that
legislation violates a Charter right, such as the right to security of
the person, it then looks to section 1 to see whether the violation is
a reasonable limit demonstrably justified in a free and democratic society.
This involves two steps: first, the court addresses the issue of whether
the legislative purpose or objective is of sufficient importance to warrant
overriding a constitutionally protected right or freedom; second, the
court assesses whether the means employed are proportional to the objective
and whether they are reasonable.
The Morgentaler decision
is difficult to summarize because the majority wrote three different decisions.
All, however, agreed that:
- section 287 (then 251) of the Criminal
Code infringed a woman's right to security of the person;
- the process by which a woman was deprived
of that right was not in accord with fundamental justice;
- the state interest in protecting the
fetus was sufficiently important to justify limiting individual Charter
rights at some point; and
- the right to security of the person of
a pregnant woman was infringed more than was required to achieve the
objective of protecting the fetus, and the means were not reasonable.
At the risk of oversimplifying,
the Court found that the legislation interfered with the security of the
person of a woman in limiting, by criminal law, her effective and timely
access to medical services when her life or health was endangered. This
criminalization was not in accordance with fundamental justice. For all
the reasons noted by the Badgley Committee and testified to by numerous
experts, access to the certificate of a therapeutic abortion committee,
which provided a valid defence to criminal charges, was not equally available
across the country. In addition, the procedure set out in the Criminal
Code could cause extensive delays, which further endangered the woman's
life or health, and it was fundamentally unjust to require a woman to
impair her health in order to remain within the law.
A point worth noting is
that the decision was founded upon the rights of pregnant women, although
the defendants were all physicians. This was because the Court held that
the physicians had standing to challenge the constitutionality of the
abortion law, under which they were liable for conviction, whether or
not the constitutional argument advanced directly affected them. If procuring
a miscarriage had been an offence only for the doctor, and not for the
woman involved, the Morgentaler decision might have been worded
The three majority decisions
were written by Chief Justice Dickson, Mr. Justice Beetz, and Madam Justice
Wilson. Though the decisions came to the same conclusion, their logic
differed noticeably. The Chief Justice found that the abortion law infringed
women's security of the person by forcing them "to carry a foetus
to term contrary to their own priorities and aspirations," as well
as causing delays which increased the physical and psychological trauma
involved. Since the therapeutic abortion committees were "a strange
hybrid, part medical committee and part legal committee," it was
no help to say that "health" was a medical term. He felt that
the term "health" was insufficiently defined in the Criminal
Code. A clear legal standard was necessary when the committee's decision
had such direct legal consequences.
Beetz J. held that Parliament
had recognized, in adopting the 1969 abortion law, that the interest in
the life or health of the pregnant woman took precedence over the interest
in preventing abortions. The standard in the 1969 abortion law became
entrenched as a minimum when section 7 of the Charter was enacted:
The gist of section
251(4) is, as I have said, that the objective of protecting the foetus
is not of sufficient importance to defeat the interest in protecting
pregnant women from pregnancies which represent a danger to life or
Beetz J. found the expression
"would or would be likely to endanger her life or health" sufficiently
precise, as a matter of law. He also held, as did Wilson J., that "the
primary objective of the impugned legislation must be seen as the protection
of the fetus," whereas the Chief Justice had identified the objective
as balancing fetal interests with those of pregnant women.
Wilson J. agreed that the
1969 abortion law exposed pregnant women to a threat to their physical
and psychological security. She noted, however, that security of the person
might involve more than physical or psychological security, and she based
her judgment as much on the right to liberty as the right to security
of the person. "Liberty in a free and democratic society," she
found, "does not require the state to approve the personal decisions
made by its citizens; it does, however, require the state to respect them."
According to Wilson J.,
the right to liberty contained in section 7 "guarantees to every
individual a degree of personal autonomy over important decisions intimately
affecting their private lives," including the decision to terminate
a pregnancy. It should be noted, however, that the state is required only
to respect such decisions, or to refrain from interfering with them, not
to approve or facilitate them.
Wilson J. also found that
the 1969 abortion law was not in accordance with the principles of fundamental
justice, but her reasoning differed from that of the rest of the majority.
She held that deciding whether or not to terminate a pregnancy was "essentially
a moral decision, a matter of conscience." To criminalize such a
decision was, she decided, a violation of freedom of conscience, which
is protected by section 2(a) of the Charter. Therefore, it could not be
in accordance with fundamental justice.
Wilson J. agreed, however,
that legislation putting reasonable limits on a pregnant woman's rights
under sections 7 or 2(a) could be justified under section 1 of the Charter
for the objective of protecting the fetus. While recognizing that a fetus
is potential life from the moment of conception, she felt that "in
balancing the state's interest in the protection of the fetus as potential
life under s. 1 of the Charter against the right of the pregnant
woman under section 7, greater weight should be given to the state's
interest in the later stages of pregnancy than in the earlier." As
an example of the shifting balance between the interest of the state in
the fetus and the interest of the pregnant female as the pregnancy advanced,
she noted that a spontaneous abortion or miscarriage at six months causes
"far greater sorrow and sense of loss" than does one at six
days or six weeks.
Beetz J. did not find it
necessary to decide whether the 1969 abortion law violated a pregnant
woman's right to liberty, as well as her right to security of the person.
"Assuming without deciding that a right of access to abortion can
be founded upon the right to `liberty'," he found that there would
still be a point in time at which "the state interest in the foetus
would become compelling."
All of the majority decisions
specifically noted that the Court had not been asked to decide whether
a fetus is included in the word "everyone" in section 7 of the
Charter and would therefore have an independent right to "life, liberty
and security of the person."
F. Protecting the Fetus: Borowski and Daigle
The question of possible
fetal rights under the Charter was addressed in Borowski v. Attorney
General of Canada. Mr. Borowski argued that section 7 of the Canadian
Charter of Rights and Freedoms gives a fetus an independent right
to life because the word "everyone" includes the fetus, and
that the 1969 abortion law therefore violated fetal rights by allowing
legal abortions. Independent fetal rights are very different as a legal
concept from the societal right to protect the fetus recognized in Morgentaler.
In the Borowski case,
the Saskatchewan Court of Appeal examined the history of the fetus at
common law, and the language of the Charter. Concluding that the fetus
had never been a person or part of "everyone" at Anglo-Canadian
law, the Court decided that, had Parliament wished to effect such a major
departure from tradition as creating fetal rights, it would have used
very clear and unambiguous language. The decision was appealed to the
Supreme Court but was not heard until October 1988, after the Morgentaler
decision had already invalidated the relevant section of the Criminal
Code. The question raised by Mr. Borowski as to the constitutionality
of that section was therefore moot.
During the summer of 1989,
several men in Ontario, Manitoba and Quebec took their former female companions
to court, asking for an injunction against a planned abortion. In Ontario
and Manitoba, the women involved were able to obtain abortions, but in
Quebec three of the five judges in the Court of Appeal upheld an injunction
against Ms. Chantal Daigle. The Court wrote five different decisions,
and the majority relied on both the Civil Code and the Quebec Charter
of Human Rights and Freedoms.
In an unusual summer hearing,
the full bench of the Supreme Court of Canada heard the appeal on 8 August
1989 and unanimously set aside the injunction. The reasons were delivered
on 16 November 1989. The Court noted that there were three separate
arguments for setting aside the injunction:
- the substantive rights alleged to support
the injunction, whether fetal rights or "father's" rights,
either do not exist or cannot outweigh a woman's right to control her
- an injunction is an inappropriate remedy
where abortions are concerned for technical, practical and constitutional
- in the case of Ms. Daigle, the injunction
effectively amounted to a prohibition, or an improper exercise of the
federal criminal law power.
The Court decided the case
on the first argument, both because the issue of substantive rights was
the fundamental one and because deciding the case on either of the narrower
grounds would have "left it unclear whether another woman in the
position of Ms. Daigle could be placed in a similar predicament through
the use of a different legal procedure." The Court also held, however,
that all three arguments appeared to deserve serious consideration, and
this could have implications for future abortion decisions.
The Court found that a fetus
is not a person or a "human being" under the Quebec Charter.
The Civil Code does not generally recognize that a fetus is a juridical
person, although it is sometimes treated similarly to a person where necessary
to protect its interests after birth or to conserve property which will
accrue to it after birth. Therefore, had the Quebec legislature wished
to grant fetuses the right to life, it would not have used language so
uncertain or vague.
Anglo-Canadian law is not
determinative in interpreting the Quebec Charter, but the Court also looked
at how fetal rights had been dealt with in Anglo-Canadian law in part
"to avoid the repetition of the appellant's experience in the common
law provinces." Common-law courts have consistently reached the conclusion
that, to enjoy rights, a fetus must be born alive. The Court cited a 1988
English case, In re F. (in utero), which held that a fetus did
not have, at any stage of its development, a separate existence from its
mother, and therefore could not be subject to a wardship order.
The Court dealt very briefly
with the issue of "father's rights," noting that no court in
Quebec or elsewhere has ever accepted the argument that "a father's
interest in a fetus which he helped create could support a right to veto
a woman's personal decisions in respect of the fetus she is carrying."
Again, the Court declined
to decide whether a fetus is included within the term "everyone"
as used in section 7 of the Canadian Charter, and therefore has a right
to "life, liberty and security of the person." Tremblay
v. Daigle was a civil suit between two private parties, and the
Charter applies only to state actions; however, the Court did find that
neither the Civil Code nor the common law afforded juridical rights
to the fetus, and therefore the Quebec legislature would likely have used
clear language had it intended to effect such a fundamental change in
the status of the fetus. It is difficult to see how the same logic would
not apply to the interpretation of "everyone" in the Canadian
Almost as interesting as
what the Court did decide was its phrasing of the issues it was not deciding.
The Court refrained from taking a position on whether an injunction could
ever be an appropriate remedy when an abortion was at issue, and on whether
provincial legislation could result in a prohibition of some abortions
without being an unconstitutional exercise of the federal criminal law
In addition, the Court concluded
its analysis of the substantive rights issue as follows:
It should be noted that
because of the way we have decided the question of "foetal rights,"
it was unnecessary to consider the second aspect of the "substantive
rights" argument, i.e., the claim that even if foetal rights
do exist, they could not justify compelling a woman to carry a foetus
The argument referred to
was based on "the long-standing legal principle that a person may
not be compelled to use his or her body at the service of another person,
even if the other person's life is in danger." This seems to be a
separate argument from a pregnant woman's right to security of the person
under the Charter, and it is one that could play a role in future decisions.
G. Provincial Jurisdiction over Abortion
Following the Morgentaler
decision in early 1988, some provinces attempted to limit funding for
abortions. In March 1988, the British Columbia Cabinet enacted a regulation
under the Medical Service Act, making abortions an uninsured service
unless performed in a hospital when a significant threat existed to the
pregnant woman's life.
The British Columbia Civil
Liberties Association challenged the regulation, and it was declared invalid
by the British Columbia Supreme Court on a somewhat technical ground.
The Cabinet had declared that abortion services, other than when a significant
threat existed to the pregnant woman's life, were not medically required
services and were therefore not insured. The Chief Justice of the Supreme
Court took "judicial notice of the fact that, if there is to be a
lawful abortion, such a procedure requires medical services." Therefore,
the legislature did
not authorize the Cabinet by regulation to provide that services rendered
by a medical practitioner that are medically required are to be considered
as services that are not medically required.
The Court suggested that
it might well have been open to Cabinet to declare that abortion was not
an insured service despite the fact that it was a medically necessary
one. This, however, could have brought British Columbia into conflict
with the language of the Canada Health Act, which would have created
a separate set of problems.
In June 1989, the Nova Scotia
legislature passed the Act to Restrict Privatization of Medical Services
(called the Medical Services Act), which proposed a range of medical
procedures, to be set by regulation, that could be performed only in hospitals.
The stated purpose of the Act was "to prohibit the privatization
of the provision of certain medical services in order to maintain a single
high-quality health-care delivery system for all Nova Scotians."
One of the procedures restricted to hospitals under the subsequent regulations
was abortion. As well as stating that medical services performed contrary
to the Act were not reimbursable by the provincial health program, the
Act provided for a fine of from $10,000 to $50,000 to be levied against
persons contravening the Act.
Although the Nova Scotia
Medical Services Act regulations covered other procedures as well
as abortion, it was widely considered that the timing of the legislation
was influenced by Dr. Morgentaler's public announcements that he intended
to establish an abortion clinic in Halifax. The Canadian Abortion Rights
Action League (CARAL) tried to challenge the legislation as being beyond
provincial jurisdiction, as well as violating sections 7, 15 (equality
rights), and 28 (sexual equality) of the Charter. On 13 October 1989,
the Nova Scotia Trial Division found that CARAL did not have sufficient
standing to bring an action, and the Court of Appeal upheld the decision
in March 1990.
On 26 October 1989,
Dr. Morgentaler announced at a press conference that he had performed
seven abortions at his Halifax clinic that day. On 27 October 1989,
an information was sworn charging Dr. Morgentaler with seven counts of
performing unlawful abortions contrary to the Medical Services Act.
Dr. Morgentaler announced his intention of continuing to perform abortions.
The province applied for an injunction restraining Dr. Morgentaler from
further violations of the Medical Services Act.
On 6 November 1989,
the injunction was granted. Mr. Justice Richard of the Supreme Court Trial
Division looked closely at the argument that the provincial legislation
violated the principles laid down by the Supreme Court in Morgentaler:
[O]ne must not lose
sight of the fact that Morgentaler 1988 was a constitutional
challenge of a section of the Criminal Code. The present application
concerns a provincial statute purportedly regulating the manner in
which certain medical services can be administered within the province.
There was no question raised as to the constitutional competence of
the legislature of Nova Scotia to regulate matters respecting the
delivery of health care services...
Given all of the above
considerations, I am left with a review of legislation which is proper
on its face and which is within the competence of the legislature
to enact. Whether it is constitutional is, as previously stated, a
question for another forum.
Richard J. granted the injunction
on the grounds that, on the evidence, there was no evidence that a private
abortion clinic was essential to the health and well-being of at least
some of the citizens of the province, or a compelling need that was not
otherwise being filled. The overwhelming public interest, therefore, was
to see that provincial laws were not flouted. This decision was also upheld
by the Nova Scotia Court of Appeal in March 1990.
The trial on the charge
itself was held in June and July 1990 before Judge Joseph Kennedy of the
Provincial Court. On 19 October 1990, Judge Kennedy found that the
Medical Services Act and the regulations made pursuant to it were
criminal law, and thus beyond the jurisdiction of the province and were
therefore invalid legislation. More specifically, he found that the law
was made primarily to control and restrict abortions within the province.
Although he accepted that the province did have real concerns about the
privatization of medical services, he found those concerns to be incidental
to the paramount purpose of preventing free-standing abortion clinics
within the province.
Because he found that the
prohibition and regulation of abortion has been and remains criminal law
in Canada, Judge Kennedy did not come to any decision on the defendant's
arguments that the legislation violated a woman's right to security of
the person and liberty under section 7 of the Charter, and to equality
under section 15 of the Charter.
On 5 July 1991, the Nova
Scotia Court of Appeal affirmed Judge Kennedy's decision. The Court held
that the Act could have been a valid exercise of provincial power, or
"in pith and substance ... an exercise of the exclusive provincial
jurisdiction in relation to hospitals or in the unassigned field of health."
However, a study of the debates in the Nova Scotia legislature, together
with the other evidence, confirmed that the primary purpose was to prohibit
Dr. Morgentaler from operating private abortion clinics rather than to
regulate private clinics within the health field more generally.
Leave to appeal to the Supreme
Court of Canada was granted and, on 30 September 1993, the Court
delivered a unanimous judgment. In a complex decision that summarized
the interpretive principles applicable to division of power cases, particularly
those dealing with the federal criminal law power, the Court struck down
both the legislation itself and the regulations under it.
The Court concurred that
the province's jurisdiction over such matters as health, hospitals, the
practice of medicine and health care policy included the right to: protect
the integrity of its health care system by preventing the emergence of
a two-tiered system of delivery; ensure the delivery of high quality health
care; and rationalize the delivery of medical services so as to avoid
duplication and reduce public health care costs.
However, the Court also
found that abortion legislation, or at least the prohibition of abortion
with penal consequences, was historically considered to be part of the
criminal law. Provincial legislation prohibiting abortions and imposing
penal consequences is therefore suspect on its face. To regulate the delivery
of abortion services validly, the Nova Scotia legislation would have to
have been solidly anchored in health care policy. Instead, when the Court
looked at the background and surrounding circumstances, including Hansard
for the period when the legislation was debated, health care concerns
were conspicuously absent.
Moreover, the apparent purpose
of the legislation was within the scope of the federal jurisdiction over
criminal law. Quoting from earlier decisions, the Court adopted the following
test for the scope of the criminal law power:
... we can properly
look for some evil or injurious or undesirable effect upon the public
against which the law is directed. That effect may be in relation
to social, economic or political interests; and the legislature has
had in mind to suppress the evil or to safeguard the interest threatened.
Is the prohibition then
enacted with a view to a public purpose which can support it as being
in relation to criminal law? Public peace, order, security, health,
morality; these are the ordinary though not exclusive ends served
by that law ...
The Court firmly stated
that the presence or absence of a criminal public purpose or object is
pivotal to the validity of provincial legislation on abortion. The Nova
Scotia legislation was invalid because "the primary objective of
the legislation was to prohibit abortions outside hospitals as socially
undesirable conduct, and any concern with the safety and security of pregnant
women or with health care policy, hospitals or the regulation of the medical
profession was merely ancillary."
Finally, the Court noted
that its decision was based on a division of powers analysis, and did
not include the impact of the Canadian Charter of Rights and Freedoms.
The decision that such legislation was within federal, and not provincial,
jurisdiction did not mean that it would either survive or fail scrutiny
under the Charter.
In 1985, while abortion
was still dealt with under the Criminal Code, New Brunswick enacted
amendments to its Medical Act providing that physicians could be
found guilty of professional misconduct if they were involved in performing
an abortion elsewhere than in a hospital approved by the Minister of Health,
and providing for the disciplining of physicians in such circumstances.
The amendments appeared to be a direct result of a request by Dr. Morgentaler
that he be allowed to establish a free-standing clinic in New Brunswick.
In June 1994, almost ten
years later, Dr. Morgentaler performed five abortions at a clinic he had
recently established in Fredericton. On the same day, the Minister of
Health made a complaint to the Council of the College of Physicians and
Surgeons, under the 1985 amendments, asking the council to prohibit Dr.
Morgentaler from performing future abortions. On 5 July, the council imposed
the requested restriction on Dr. Morgentaler's licence and appointed a
board of inquiry. The hearing of the board was delayed, pending a court
decision on the constitutionality of the relevant 1985 Medical Act
In September 1994, the Court
of Queen's Bench found the amendments unconstitutional. Taking into consideration
all the relevant factors, including the fact that the amendments dated
from a point in time when abortion was covered by the Criminal Code,
the judge followed the reasoning in the Nova Scotia case. He concluded
that, although the legislation was placed in the context of regulating
physicians, its only purpose had been to prohibit the establishment of
free-standing abortion clinics and, in particular, the establishment of
such a clinic by Dr. Morgentaler. In January 1995, two out of three judges
of the New Brunswick Court of Appeal confirmed the lower court decision
in a remarkably short judgment. They adopted the statement of Sopinka
J., writing for a unanimous court, that provincial legislation whose primary
purpose is to prohibit abortions except in certain circumstances is an
encroachment on the federal criminal law power.
The Prince Edward
Island Supreme Court, Appeal Division, on 13 September 1996 upheld a regulation
that limited public funding of abortions to those that were performed
"in a hospital when the condition of the patient is such that the
service is determined by the [Health and Community Services] Agency to
be medically required." Although this means that health care coverage
for abortions in Prince Edward Island is more restrictive than in most
provinces, it is consistent with previous cases. A province can limit
coverage for abortions by regulation, provided there is authority in the
governing Act to make such a regulation. If the governing legislation
clearly conveys such authority, as did the Prince Edward Island Health
Services Act, then regulatory restrictions on coverage will be valid.
H. Other Issues
In August 1991, the Federal
Court of Canada upheld a ruling that a taxpayer could not withhold $50
in taxes to protest government funding of abortions. The Court found that
the preamble to the Charter, stating that "Canada is founded upon
principles that recognize the supremacy of God," goes no further
than preventing Canada from becoming officially atheistic. Moreover, any
possible violation of the taxpayer's freedom of conscience and religion
was justified under the Charter because, like other taxpayers, he was
under a legal compulsion to pay income tax. The state was not compelling
him to support tax-funded abortions, but only to pay his taxes like everyone
In November 1991, the Federal
Court of Appeal held that a free-standing abortion clinic operated on
a charitable basis with no intention of making a profit was a valid charity
within the meaning of the Income Tax Act. The clinic's activities
could not be contrary to public policy where no clear public policy existed;
consequently the Court allowed an appeal against the Minister of National
Revenue's refusal to grant the clinic charitable status.
Courts in at least two provinces
have upheld the right of young pregnant teenagers (aged 13 and 16) to
obtain an abortion over their parents' objections where the child had
sufficient intelligence and understanding to make up her own mind.
In 1994, the Attorney-General
of Ontario applied for injunctions against anti-abortion protest activity
near 23 locations, on the grounds that such activity constituted a public
nuisance. The locations included the homes and offices of physicians who
provided abortion services as well as specific hospitals and abortion
clinics. The court found that the physiological, psychological and privacy
interests of women about to undergo an abortion constitute objectives
of sufficient importance to warrant overriding a constitutionnally protected
right or freedom such as freedom of expression. The evidence of focused
residential picketing constituted a prima facie case of watching
and besetting, as well as a public and private nuisance. The majority
of the injunction requests were granted, although on varying terms depending
upon the specific circumstances.
In 1995, the British
Columbia government passed an Access to Abortion Services Act, following
a history of protests at abortion clinics and the shooting, and serious
wounding, of a doctor providing services at an abortion clinic. The Act
permitted the creation of an access zone around abortion clinics and service
providers' homes within which sidewalk interference and protesting would
be prohibited. In late 1996, the British Columbia Supreme Court held that
the Act, although it clearly infringed the freedom of expression and religion
of the accused, was justified under section 1 of the Charter. The court
found that, because the messages of the protesters could contain exaggeration
and misrepresentation, and were offensive in tone and comment, they were
not central to the core values of freedom of expression. On the other
hand, the objective of the legislation, ensuring access to health care,
is a fundamental value in our society.
A. Government Action
During the 33rd Parliament,
the government had tabled a motion for debate and a vote in the House
of Commons so as to seek the guidance of Parliament on framing the new
law. Under the terms of this motion, an abortion would have been lawful
during the earlier stages of pregnancy if, in the opinion of a licensed
physician, the continuation of the pregnancy would or would have been
likely to threaten the woman's physical or mental well-being. During the
subsequent stages of pregnancy, an abortion would have been lawful only
if certain further conditions were satisfied, including the finding of
two physicians that the continuation of the pregnancy would or would have
been likely to endanger the woman's life or seriously endanger her health.
What constitutes the "earlier" and "subsequent" stages
of the pregnancy was not defined under the proposal, nor were the "further
conditions" under which an abortion could lawfully have been procured
during the subsequent stages of the pregnancy.
Debate on the government
abortion motion began in the House of Commons on 26 July and ended
with a free vote on 28 July 1988. By then, 21 amending proposals
had been submitted by individual members, only five of which were retained
for a vote by the Speaker. None of the proposals, including that of the
government, was adopted.
Of the six proposals considered
by the House, the one that received the most votes contained the most
restrictive policy on abortion. This proposal would have permitted abortion
only if two or more independent licensed physicians had in good faith
and on reasonable grounds stated that in their opinion the continuation
of the pregnancy would or would be likely to endanger the woman's life.
This amendment was defeated by a vote of 118 to 105. Significantly, no
women members voted in favour of this proposal.
Next in line in terms of
support was the government's motion. It was defeated by a vote of 147
to 76. Even less support was expressed for the remaining proposals.
In the wake of the inconclusive
vote on abortion in the House of Commons, the government stated that it
would assess its options, but it left open the question of when it might
introduce a new abortion law.
On 3 November 1989,
the Minister of Justice introduced in the House of Commons Bill C-43,
An Act respecting abortion. If Bill C-43 had been approved by both the
House of Commons and the Senate, it would have been a criminal offence
to induce an abortion on a woman unless it was done by, or under the direction
of, a physician who considered that the woman's life or health was otherwise
likely to be threatened. "Health" was defined as including physical,
mental and psychological health.
Bill C-43 was referred to
a Legislative Committee on 28 November 1989. The Committee heard
from over 50 witnesses, coming from all parts of Canada. Most witnesses
represented either a pro-choice or a pro-life viewpoint. The former argued
that abortion should not be in the Criminal Code, while the latter
argued that Bill C-43 did not provide sufficient protection for the fetus.
Pro-choice groups argued that the Canada Health Act should be used
to ensure access to abortion services. On the whole, only a small minority
of witnesses were prepared to suggest or discuss amendments consistent
with the principle of the bill.
One notable exception was
the Canadian Medical Association (CMA), which argued forcefully that private
individuals should not be allowed to initiate prosecutions under Bill
C-43 without the consent of the Attorney-General of the province. Private
prosecution of the physician performing the abortion was not an issue
under the old legislation, because an abortion was legal if previously
approved by the therapeutic abortion committee. The Canadian Medical Association
felt that Bill C-43, which provided no such protection to the individual
physician, opened the door to legal harassment by pro-life groups or individuals.
An amendment based on the CMA argument was proposed by members of the
Committee, but did not pass.
Another amendment given
consideration would have made it an offence to discriminate against any
health care worker who refused to participate in an abortion for reasons
of conscience. While there was general agreement among both the witnesses
and the Committee members that no health care worker who conscientiously
objected to abortions should be required to participate in such procedures,
the majority view was that a "conscience clause" was properly
a human rights or labour relations issue within provincial jurisdiction.
On 6 April 1990, the
Committee reported C-43 back to the House of Commons without amendment.
Third reading debate began on 22 May 1990 and, on 23 May 1990,
the House rejected all proposed amendments to Bill C-43 by a significant
majority. Most of the proposed amendments would have limited the conditions
under which an abortion could be obtained.
On 29 May 1990, the
House of Commons passed Bill C-43 on third reading by a vote of 140 to
131. Although Cabinet Ministers were required to support the bill, it
was a free vote for all other Members.
On 31 January 1991, the
Senate voted on Bill C-43. As with the House of Commons, it was a free
vote except for members of the Cabinet (Senator Murray). Of 86 senators
present, 43 voted for the bill and 43 voted against it. Under the Rules
of the Senate, a tied vote is deemed to be a negative vote; therefore
Bill C-43 was defeated.
Various Private Members'
bills designed to restrict access to abortions were introduced in both
the 34th and 35th Parliaments, but none passed second reading.
27 June 1969 - Bill C-150
(the existing abortion law) received Royal Assent after its adoption
by the House of Commons on 14 May 1969 and by the Senate on 12 June
9 February 1977 - The
Badgley Committee tabled its report, which concluded that the abortion
law was not being applied equitably across Canada.
17 April 1982 - The Constitution
Act, 1982 received Royal Assent.
30 April 1987 - In the
case of Borowski v. Attorney General of Canada, the Saskatchewan
Court of Appeal ruled that the fetus is not covered under sections 7
and 15 of the Charter.
28 January 1988 - The
Supreme Court of Canada, in a 5 to 2 majority judgment, ruled in the
Morgentaler case that section 287 (then section 251) of the Criminal
Code contravened the rights of pregnant women under the Charter
and was therefore of no force or effect.
28 July 1988 - After a
two-day debate, the House of Commons voted down six proposals on abortion,
including the government motion.
9 March 1989 - The Supreme
Court of Canada rendered its judgment in Borowski v. Attorney
General of Canada, finding unanimously that there was no longer
an issue on which to rule as the previous abortion law had been found
unconstitutional in Morgentaler.
26 July 1989 - In a 3-2
decision, the Quebec Court of Appeal upheld an injunction preventing
Ms. Chantal Daigle from obtaining an abortion. The decision relied heavily
on Quebec's Civil Code.
8 August 1989 - The full
bench of the Supreme Court heard the Daigle appeal. Although informed
by Ms. Daigle's lawyer that his client had already had an abortion,
the Court continued to hear the arguments. It delivered a unanimous
decision that the injunction be set aside, with reasons to follow.
27 October 1989 - Dr.
Morgentaler was charged in Halifax with performing unlawful abortions,
contrary to the Medical Services Act of Nova Scotia.
3 November 1989 - The
Minister of Justice introduced into the House of Commons Bill C-43,
An Act respecting abortion.
16 November 1989 - The
Supreme Court of Canada delivered its reasons in Tremblay v.
Daigle. The Court found that neither civil law nor common law
recognizes the fetus as a "juridical person"; therefore, it
cannot be presumed that the Quebec Charter of Human Rights and Freedoms
confers legal personhood upon the fetus.
29 May 1990 - Bill C-43
passed third reading in the House of Commons, unamended.
19 October 1990 - The
Medical Services Act of Nova Scotia and regulations under it,
which prohibit the performance of certain medical services, including
therapeutic abortions, outside of hospitals, was struck down.
31 January 1991 - Bill
C-43 was defeated in the Senate by a tied vote.
5 July 1991 - The Nova
Scotia Court of Appeal affirmed the Provincial Court decision of 19 October
1990 regarding the Medical Services Act.
30 September 1993 - The
Supreme Court of Canada affirmed the unconstitutionality of the Nova
Scotia Medical Service Act and regulations.
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Operation of the Abortion Law. Report. 1977.
Cook, Rebecca J. and Bernard
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Law Reform Commission
of Canada. Crimes Against the Foetus. Ottawa, 1989.
Library of Parliament,
Information and Technical Services Branch. Abortion in Canada 1969-1989.
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original version of this Current Issue Review was published in November
1989; the paper has been regularly updated since that time.