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25th Anniversary of SCOC Morgentaler Decision


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#1 Wetcoaster

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Posted 28 January 2013 - 11:14 AM

Twenty five years ago today the Supreme Court of Canada delivered its landmark ruling in R. v. Morgentaler. [1988] 1 S.C.R. 30.
http://www.canlii.or...88canlii90.html

As a result there is no criminal law prohibition on abortion in Canada since that decision.

As this case note highlights this decision was not unanimous and the justices reached their conclusions by different reasoning. (Footnotes are at the link specified below)


On January 28, 1988, the Supreme Court of Canada (S.C.C.) gave its decision in R. v. Morgentaler.[1] While a criminal law case, Morgentaler examined women’s rights in the context of the Charter of Rights and Freedoms.[2] This decision ranks with the Persons case in its significance regarding the definition of Canadian women’s constitutional rights. In the Persons case, the United Kingdom’s Judicial Committee of the Privy Council, then Canada’s highest court of appeal, ruled that women could be summoned for appointment to the Senate, as they were “qualified persons” defined under the relevant legislation.[3] InMorgentaler, the federal government’s criminal legislation governing abortions was ruled unconstitutional. Women had the same control of their bodies as did men.

Morgentaler and his two co-accused, were licensed physicians who ran a clinic providing abortion services to women. The relevant former provision of the Criminal Code[4]- section 251 (4) - required that abortions first be approved by a therapeutic abortion committee at an accredited or approved of hospital. The procedure had to occur at that hospital. All three physicians were opposed to the legislative regime prescribed by Parliament and had opened their clinic in defiance of the law. They were then charged with procuring abortions under the relevant provisions of the Code: 421(1)(d) and 251(1). Before they entered their pleas, the doctors asked the trial court to quash the charges on the argument that they infringed sections 2(a), 7, and 12 of the Charter which read:


2(a). Everyone has the following fundamental freedoms: freedom of conscience and religion.

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 the principles of fundamental justice; and

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

The doctors argued that they were:

  • not being allowed to follow their consciences under section 2;
  • were being prosecuted under laws that were too vague, which deprived them of fundamental justice; and that
  • women being denied an abortion were being subjected to cruel and unusual punishment, as the regulatory scheme developed under the Code had the net effect of denying them the right to the medical procedure they wanted[5].

The government argued that the doctors had broken the law – plain and simple. The trial judge refused to quash the charges at a preliminary stage saying it would be impossible to make a decision without hearing evidence and ordered the doctors to present evidence to back up their claims at trial.[6] The matter went to trial before a jury and all three accused were acquitted. As is customary, the jury did not give reasons for its decision. The government appealed.

The Ontario Court of Appeal ordered a new trial. It noted that the provision of the Criminal Code regulating abortions was over one hundred years old, and preceded the Charter by eighty years. It did not accept the argument that the right to procure an abortion on demand was steeped in Canadian tradition; rather, abortions were historically governed by law. Hence section 7 of the Charter was not offended.[7] The appeal court also did not find a breach of the Charter’s section 2 – the right to fundamental justice. It noted that Parliament was given the legal ability to govern every Canadian’s behaviour, and that, as with the challenges to other sections of the Criminal Code, there was no breach of the fundamental right to justice. The Court mentioned that laws regarding the forbidding of sex with children had been upheld as an example of a law that could be upheld because it protected public morals?[8] Here the accused had the right to a fair trial, and the right to appeal the results. Accordingly there was no breach of section 2.

The appeal court also considered section 12 of the Charter - the right not to be subjected to any cruel and unusual treatment or punishment. Women and doctors could choose to either obey the laws of Canada, or not. The court noted that if they chose to break the law, they had to accept the consequences. The consequences prescribed by Parliament for breaking the law were not out of line with any other Canadian laws.[9] The court also agreed to address the following question (which had not been argued at trial):

Is section 251 [the relevant abortion provision] “inconsistent” with sections 15, 27, and 28 of theCharter[10]?

The guarantees of equality, equal benefit, and equal protection under the Charter were not offended. The court ruled that there was no evidence that this law created or induced any inequalities. The court did note that there appeared to be inequalities as to the way in which the law applied to individuals in that different provinces had developed different procedures for allowing abortions, but felt that it was up to Parliament to sort out those inconsistencies.[11] It should be noted that a number of points of criminal procedure were considered in this decision, but they will not be dealt with here.


The decision was appealed to the S.C.C.

The S.C.C. issued a 5-2 decision striking down the abortion provision of the Criminal Code as being unconstitutional.[12] The court asked itself seven questions, each answered by the judges involved.

1. Does section 251 [the abortion provision] of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by sections 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms?

Judges Dickson (Chief Justice) and Lamer replied: Yes -

State interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitutes a breach of security of the person. Section 251 clearly interferes with a woman's physical and bodily integrity. Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and thus an infringement of security of the person. A second breach of the right to security of the person occurs independently as a result of the delay in obtaining therapeutic abortions caused by the mandatory procedures of s. 251 which results in a higher probability of complications and greater risk. The harm to the psychological integrity of women seeking abortions was also clearly established Any infringement of the right to life, liberty and security of the person must comport with the principles of fundamental justice.[13]


Judges Beetz and Estey replied: Yes –

Security of the person” within the meaning of s. 7 of the Charter must include a right of access to medical treatment for a condition representing a danger to life or health without fear of criminal sanction. If an act of Parliament forces a pregnant woman whose life or health is in danger to choose between, on the one hand, the commission of a crime to obtain effective and timely medical treatment and, on the other hand, inadequate treatment or no treatment at all, her right to security of the person has been violated.[14]


Judge Wilson replied: Yes -

Section 251 of the Criminal Code takes a personal and private decision away from the woman and gives it to a committee which bases its decision on "criteria entirely unrelated to [the pregnant woman's] own priorities and aspirations". Section 251 also deprives a pregnant woman of her right to security of the person under s. 7 of the Charter. This right protects both the physical and psychological integrity of the individual. Section 251 is more deeply flawed than just subjecting women to considerable emotional stress and unnecessary physical risk. It asserts that the woman's capacity to reproduce is to be subject, not to her own control, but to that of the state. This is a direct interference with the woman's physical “person.”[15] She went onto state that Section 2 of the Charter had also been violated in that the freedom to choose one’s destiny was an individual freedom allowing any person to follow one’s conscious.


Judges McIntyre and La Forest (Dissenting): No –

They ruled that there was no right of abortion in Canada[16]. Thus there was no Charter breach. In their opinion the doctors had broken the law and a new trial should have been ordered[17].


2. If section 251 of the Criminal Code of Canada infringes or denies the rights and freedoms guaranteed by sections 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms, is section 251 justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?

Judges Dickson (Chief Justice) and Lamer: Section 251 could not be saved as a result of their answer to question 1. The way in which the law was worded and enforced was a major breach of women’s Charterrights. Hence, the abortion provision was void.[18]

Judges Beetz and Estey replied: Section 251 could not be saved as a result of their answer to question 1. The way in which the law was worded and enforced was a major breach of women’s Charter rights. Hence, it was void.[19]
Judge Wilson replied: Section 251 could not be saved as a result of her answer to question 1. The way in which the law was worded and enforced was a major breach of women’s Charter rights. Hence, it was void.[20]

Judges McIntyre and La Forest (Dissenting). No. They would have upheld the law. It was Parliament’s decision to make the law, and up to Parliament to change it.

3. Is section 251 of the Criminal Code of Canada ultra vires [beyond the powers of] the Parliament of Canada?

Judges Dickson (Chief Justice), Lamer, Beetz, Estey, and Wilson: Did not answer this question, as a result of their answers to questions 1 and 2.

Judges McIntyre and La Forest (Dissenting). No. Parliament had the legal ability to pass this law.

4. Does section 251 of the Criminal Code of Canada violate section 96 of the Constitution Act, 1867?

None of the Judges dealt with this question as the result of their reasoning above.

5. Does section 251 of the Criminal Code of Canada unlawfully delegate federal criminal power to provincial Ministers of Health or Therapeutic Abortion Committees, and in doing so, has the Federal Government abdicated its authority in this area?

None of the Judges dealt with this question as the result of their reasoning above.

6. Do sections 605 and 610(3) of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by sections 7, 11(d), 11(f), 11(h) and 24(1) of the Canadian Charter of Rights and Freedoms?

None of the Judges dealt with this question as the result of their reasoning above.

7. If sections 605 and 610(3) of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by sections 7, 11(d) 11(f), 11(h) and 24(1) of the Canadian Charter of Rights and Freedoms, are sections 605 and 610(3) justified by section 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?[21]

None of the Judges dealt with this question as the result of their reasoning above.

The overall result was that Canada’s laws regulating abortions were struck down. To date (2008), they have not been replaced.
http://www.law.ualbe...morgentaler.php


CBC's The Current hosted by Anna Maria Tremonti did a feature program with historic reports and interviews:



It was 25 years ago today that the Supreme Court of Canada handed down the landmark ruling that decriminalized abortion and set a precedent for other medical social issues confronting us today. The Morgentaler decision, as it is known, resulted in what is an absence of an abortion law in Canada. But that wasn't the plan when the then-Mulroney government first reacted to 5-2 decision of the highest court. Today, we hear from former Tory Justice Minister Doug Lewis on the backroom and parliamentary efforts that followed the decision.


Historical Morgentaler decision marks 25th anniversary - Carolyn Egan & Morris Manning


We started this segment with a clip from CBC news on this day, twenty-five years ago, as the Supreme Court of Canada struck down this country's abortion law.


The ramifications of that decision are still reverberating in Canada. Carolyn Egan was an active participant in that dramatic case. She was one of the founders of the Ontario Coalition for Abortion Clinics and worked closely with Dr. Henry Morgentaler.


And the lawyer who fought the case on behalf of Dr. Henry Morgentaler and then took it to Supreme Court was Morris Manning.


They were both in Toronto.


Historical Morgentaler decision marks 25th anniversary - Doug Lewis


Doug Lewis was government House Leader under Prime Minister Brian Mulroney when the Supreme Court made its decision. A year later, he became Justice Minister and Attorney General - and was faced with the task of drawing up an abortion law. Doug Lewis joined us from Orillia, Ontario.

http://www.cbc.ca/th...th-anniversary/

Edited by Wetcoaster, 28 January 2013 - 11:18 AM.

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#2 G.K. Chesterton

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Posted 28 January 2013 - 04:17 PM

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“Reason is itself a matter of faith. It is an act of faith to assert that our thoughts have any relation to reality at all.” - G.K. Chesterton

“Unbelief is as much of a choice as belief is. What makes it in many ways more appealing is that whereas to believe in something requires some measure of understanding and effort, not to believe doesn't require much of anything at all.” - Frederick Buechner

“All human nature vigorously resists grace because grace changes us and the change is painful.” - Flannery O'Connor


“My argument against God was that the universe seemed so cruel and unjust. But how had I got this idea of just and unjust? A man does not call a line crooked unless he has some idea of a straight line. What was I comparing this universe with when I called it unjust?” - C.S. Lewis

#3 Bertuzzi Babe

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Posted 28 January 2013 - 04:48 PM

Hallelujah for progress!! ::D

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#4 Wetcoaster

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Posted 28 January 2013 - 05:01 PM

Hallelujah for progress!! ::D

Here we are 25 years later - Canada has not crashed and burned in a lake of brimstone and hellfire. There simply is not IMHO any good argument to make any change to how abortions are dealt with in Canada since Morgentaler.

Much the same as is the case with abolition of capital punishment.
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#5 G.K. Chesterton

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Posted 28 January 2013 - 07:15 PM

Dr. Stackhouse provides some good commentary:





Feminists for the Unborn: Speak Up
January 28, 2013

On the 25th anniversary of R. v. Morgentaler, some feminists are understandably worried that the rights of certain women—childbearing women—might be compromised.
Other feminists, such as myself, continue to hope that one day soon the rights of certain women—unborn women—might return to the public conscience and official protection of Canadians.
It has been a long, difficult, and worthy battle to emancipate women from stupid attitudes, demeaning practices, and horrible laws. It is now 2013 and Canada is not as it was. Sexism is still evident, and always will be, but it enjoys neither social acceptance nor institutional support. It is time to welcome tiny women into our circle of protection along with their mothers.
One can appreciate that for social change to take place in the world as it is, issues need radical simplification so that the necessary force can be concentrated on single pressure points. The bracketing-out of the rights of unborn women in favour of the rights of childbearing women was one of the understandable, if also deeply regrettable, consequences of theRealpolitik of feminist struggle. Feminists who used to champion the rights of unborn women were silenced by the rest of the movement and told to get in line: the rights of (adult) women were the cause of the moment, and every other consideration had to be co-opted or deferred.
Now, however, we are in a different era. Now we can see that granting a woman full rights over her body, a central and valid concern recognized by all sensible people and by the institutions of the country, should never have extended to granting her full rights over another woman’s body, the female child she carries in pregnancy. In the truly holy war for women’s rights, granting the childbearing woman the authority to kill her unborn-child/woman was a bridge much too far.
We feminists therefore should be grateful that we now occupy a social space in which we can admit our mistakes, just as we have been hectoring sexists to admit theirs. We should be able to recognize a good argument as a good argument, whether or not it is made by a woman. Female feminists should be secure enough in their own social safety now to put aside their preoccupation with themselves and consider the needs of others, including the most vulnerable human beings there are: women in utero.
We must begin by acknowledging what every pregnant woman knows: that what is living within her is another person, another human being. One of the great themes of our feminist movement is embodiment. So we must take seriously that mother and child are joined, in physiology and in dignity. The rights of one cannot be considered to the neglect of the other any more than the body of one can be discussed in disregard of the other’s.
Unborn children are, indeed, the great “others” of Canadian society today. The are literally, because legally, completely unprotected because they are unrecognized as persons. We feminists—of all people!—should be quick to recognize that sinister language of someone being “not a person” and we ought to be leaping to the defense of those who are marginalized and victimized as such.
So let Parliament do what it should have done years and years ago: summon the courage to protect at least some of these women at least some of the time. And let us feminists also remedy what we once said, and stopped saying: That we are in favour of the rights of all women, and especially the most vulnerable.





http://www.johnstack...orn-speak-up-2/
“Reason is itself a matter of faith. It is an act of faith to assert that our thoughts have any relation to reality at all.” - G.K. Chesterton

“Unbelief is as much of a choice as belief is. What makes it in many ways more appealing is that whereas to believe in something requires some measure of understanding and effort, not to believe doesn't require much of anything at all.” - Frederick Buechner

“All human nature vigorously resists grace because grace changes us and the change is painful.” - Flannery O'Connor


“My argument against God was that the universe seemed so cruel and unjust. But how had I got this idea of just and unjust? A man does not call a line crooked unless he has some idea of a straight line. What was I comparing this universe with when I called it unjust?” - C.S. Lewis

#6 Wetcoaster

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Posted 28 January 2013 - 09:01 PM

Dr. Stackhouse provides some good commentary:
http://www.johnstack...orn-speak-up-2/

No he does not provide good commentary - he advocates a position contrary to what Parliament, the supreme law of Canada (the Charter) and the courts have set out as legal rights.

He is wrong and is no feminist as he claims - at least no feminist that I have ever encountered as the bedrock principle of feminism is choice. The woman can choose to have an abortion or she can choose to carry the fetus to birth... but it is the choice of the pregnant woman alone.

The basic equation is by according legal rights to a fetus and giving the state the power to make decisions for the pregnant woman on behalf of the fetus diminishes the rights of a real person - the pregnant woman.

He claims to speak for all women and to know what they all think and feel. The arrogance is palpable. If he does not want to have an abortion that is his choice (not physically possible of course) but it is a choice that each pregnant woman makes and not the state and not Dr. John Stackhouse.

BTW here is what he advocates in his book "Finally Feminist: A Pragmatic Christian Understanding of Gender":

Discussions about gender continue in many Christian denominations. With good people and solid arguments on each side of the divide, there seems to be little hope for a synthesis or even constructive dialogue. In this brief book, John Stackhouse proposes a way forward.


Stackhouse provides biblical, theological, and practical arguments for his own understanding of the issue: Equality is the biblical ideal, but patriarchy is allowed and regulated by a God who has larger kingdom purposes in mind.

http://www.amazon.ca...59397053&sr=8-1

As I said if John Stackhouse (Ph.D., University of Chicago; Sangwoo Youtong Chee Professor of Theology and Culture at Regent College, Vancouver) self-describes as a feminist then it is the most bizarre definition of feminist that I have ever encountered.

A fetus has no rights independent of the pregnant woman...period, full stop.

A fetus is not a person, it is not a human being, it is not a"tiny woman", an "unborn-child/woman", "women in utero". etc.

A fetus cannot be elevated to status as a person by appealing to the "rights of unborn women" or the "rights over another woman’s body, the female child she carries" - they do not exist.

I go with the Hon. Gordon O'Connor (Minister of State and Chief Government Whip, Conservative Party of Canada) who said this during the earlier debate on the Woodworth motion and he was speaking for the Harper government.


It has always been part of Canada's criminal law, and it reflects the well-established legal principle that the law does not recognize a fetus or unborn child as a legal person, possessing rights separate from its mother, until it is born alive.

The Supreme Court of Canada has affirmed this interpretation for the purposes of the Criminal Code. The Supreme Court has also declared that the right to liberty guarantees a degree of personal autonomy over important decisions intimately affecting private life. The decision of 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 and take precedence over that of the state.

...


I cannot understand why those who are adamantly opposed to abortion want to impose their beliefs on others by way of the Criminal Code. There is no law that says that a woman must have an abortion. No one is forcing those who oppose abortion to have one.

Within the free and democratic society of Canada, if one has a world view based on a personal moral code that is somewhat different from others, then live according to those views as long as they are within the current laws. On the other hand, citizens who are also living within the reasonable limits of our culture and who may not agree with another's particular moral principles should not be compelled to follow them by the force of a new law.

...


I am sure we all recognize that the issue of abortion raises strongly held and divergent views within and outside Parliament. However, I firmly believe that each of us should be able to pursue our lifestyle as long as it is within the boundaries of law and does not interfere with the actions of others. Trying to amend the legal rules governing abortion, as is intended by this motion, will not improve the situation. It will only lead to increased conflict as the attempt is made to turn back the clock.

http://www.parl.gc.c...d=5524696#T1800

Edited by Wetcoaster, 29 January 2013 - 11:18 AM.

To err is human - but to really screw up you need a computer.

Always listen to experts. They'll tell you what can't be done and why. Then do it.

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Illegitimi non carborundum.

Never try to teach a pig to sing - it wastes your time and annoys the pig.

#7 Bertuzzi Babe

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Posted 29 January 2013 - 10:59 AM

^^^

A HUGE +1......50 if I were able to do so


(so hate it when I run out of +s so early in the day :P)


She is wrong and she is no feminist as she claims - at least no feminist that I have ever encountered as the bedrock principle of feminism is choice. The woman can choose to have an abortion or she can choose to carry the fetus to birth... but it is the choice of the pregnant woman alone.


Absolutely correct..



I firmly believe that each of us should be able to pursue our lifestyle as long as it is within the boundaries of law and does not interfere with the actions of others. Trying to amend the legal rules governing abortion, as is intended by this motion, will not improve the situation. It will only lead to increased conflict as the attempt is made to turn back the clock.


A-FlyingSpaghettiMonster-men!!

Edited by Bertuzzi Babe, 29 January 2013 - 11:03 AM.

"Sursumredditio" non usquam in hac mea loquantur!



Ense petit placidam sub libertate quietem.....






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