Professional Documents
Culture Documents
Christine Brousseau
100645215
LAWS 2005V
July 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.
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, § 1
3 Canadian Charter of Rights and Freedoms, Schedule B to the Canada Act 1982 (U.K.) 1982, c.11, § 7
4 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
7 Canadian Charter of Rights and Freedoms, Schedule B to the Canada Act 1982 (U.K.) 1982, c.11, § 1
8 Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited,
2003.
9 Ibid.
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?
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
exceedingly troublesome. Only accredited or approved hospitals could perform abortions, which
12 Canadian Charter of Rights and Freedoms, Schedule B to the Canada Act 1982 (U.K.) 1982, c.11, § 7
13 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.
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
did not believe that the Court should participate in “the loud and continuous public debate on
17 Ibid.
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
made23.
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.
23 Strayer, Barry, The Canadian Constitution and the Courts: The Function and Scope of Judicial Review (Toronto:
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
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
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).
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
evolutionary document, into the text or to the understanding of the original intention and meaning
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
have been avoided.38 McIntyre was reprimanding the other judges for being more concerned about
35 Ibid., 171.
36 Ibid., 173-174.
37 Ibid., 183.
38 Ibid., 133.
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
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
39 Ibid., 137-138.
40 Ibid., 138-139.
41 Ibid., 143.
42 Ibid., 143-146.
43 Ibid., 149.
44 Ibid., 151.
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.
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:
2. The ultimate source of the Constitution is the fathers 2. The ultimate source of the Constitution is the elite
of the Confederation; the human foundation of the governments and the Supreme Court of Canada,
Constitution is the creation of the Charter whom continuously revise the Constitution, making
it, through an evolutionary process, a "living
document."
4. The judiciary is empowered and equipped only to 4. The Supreme Court of Canada is the ultimate source
interpret the Constitution and to provide narrowly of Constitutional law in Canada, and is empowered
tailored relief only in concrete cases involving and equipped to provide broad relief to abstract or
clearly identifiable parties, specific issues, and non-identifiable person(s) in disputes involving
tangible harm. vaguely defined harm and/or indistinct issues.
5. The most basic purpose of the Constitution is to 5. The ultimate purpose of the Constitution is to
provide the stability necessary for the survival and promote "autonomy" and "federalism" as defined by
prosperity of the legal system. Additionally, the each individual for himself/herself, and as set forth
Preamble of the Constitution enumerates two by the government through up-to-date policies that
purposes (rule of law and supremacy of God) that are generally accepted and agreed upon due to their
Canada's constitutional system is to promote. reasonableness.
6. The Constitution embodies a multiplicity of distinct 6. The Constitutional system rests on a few vague,
principles, including democratic sovereignty and fundamental principles, paramount among which
self-government, life, liberty, due process of law, are "freedom" and "security of person"
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.
Table 1.
The differences between the main philosophical approaches to interpreting the Charter
APPENDIX B:
Table 2.
Supreme Court Justices Separate Decisions