The Attorney-General of Ontario’s appeal of the jury acquittal of Morgentaler and his two associates on November 8th, 1984, and, the request for a new trial, began on Monday April 29, 1985, before a panel of five judges from the Ontario Supreme Court of Appeal. Because of the importance of the appeal, which will require rulings from Ontario’s highest court on several sections of the Charter of Rights and Freedoms, there was a panel of five judges, rather than the customary three. The five judges are Chief Justice William Howland, Associate Chief Justice B.J. MacKinnon, Mr. Justice Charles Dubin, Mr. Justice G. Arthur Martin, and Mr. Justice John Brooke.
We do not presume to second guess the outcome of this appeal, but for some days pro-lifers had an unaccustomed pleasure in reading the headlines, for example:
Morgentaler defense was ‘misconceived’ judge says (Toronto Star, May1)
Judges attack doctor’s lawyer (Toronto Sun, May 2)
Morgentaler lawyer grilled about defence of necessity (Winnipeg Free Press, May 2)
Court of Appeal rejects Morgentaler arguments (Globe & Mail, May 3)
Court rejects Morgentaler’s arguments that abortion laws cruel (Kingston Whig Standard, May 3)
Abortions not emergency
Provincial Crown counsel, James Blacklock opened the case by outlining the two broad areas of the appeal: first, the defence of necessity should not have been allowed; secondly, the judge should have declared a mistrial because the defence lawyer invited the jury to disregard the law.
Mr. Blacklock stated that the defence of necessity is applicable only in “emergency situations where normal human instincts, whether of self-preservation or altruism, overwhelmingly impel disobedience,” and to “circumstances of imminent risk where action is taken to avoid a direct and immediate peril.” He quoted from a Supreme Court of Canada ruling which said the situation must “cry out for action and make a counsel of patience unreasonable.” He argued that these conditions were not met in the Morgentaler case. There was no evidence in the trial of any risk, or of any emergency. He added that Morgentaler’s disagreement with the abortion laws does not permit him to break the law, and then say it was necessary to do so.
Mr. Blacklock turned to a review of the defence counsel’s submission to the jury. Morris Manning invited the jury to disregard the law; he said that the issue before them was “whether or not women should be allowed to have abortions in clinics;” and he suggested that a verdict of not guilty would somehow lead to free access to abortion across Canada or lead the Ontario government to open up abortion clinics.
“At that point,” Mr. Blacklock continued, “ it was no longer possible to have a trial conducted in accordance with the rule of law… In a trial by jury, the judge is to direct the jury on the law and the jury is duty bound to apply that law to the facts.” At that point, the trial judge should have declared a mistrial.
When Morris Manning began to address the court about his defence of Morgentaler, he encountered a good deal of flak from three of the judges. The Toronto Sun stated that the judges “blasted Morgentaler” and the Winnipeg Free Press said he was “grilled.” Certainly Mr. Justice Dubin and Mr. Justice Brooke found difficulty in accepting the plea of defence of necessity. They asked how Morgentaler and his associates could rely on that defence when they conspired in advance to do abortions on most women who came to the clinic – not only on women rejected by hospital therapeutic committees, but on women who did not even apply to such committees in the first place, those “who wanted to avoid the hassle.” Manning countered with the argument that “a woman with an unwanted pregnancy is in an emergency situation.” That theory did not strike Mr. Justice Brooke as acceptable and he said, “the emergency feature in this is missing.” Mr. Justice Dubin claimed, “ I don’t understand how you can tell a jury to disobey the law and use the defence of necessity. To argue necessity you need to prove danger to health and no way to avoid breaking the law.”
Later, Mr. Justice Dubin went further when he said “This whole defence seems to be… misconceived. If you are right, then any doctor can do it in his office at any time.”
Mr. Justice Dubin went on to say that the trial went far beyond the issue it was supposed to deal with. Manning asked, “What issue is that?” and received the reply, “The issue of guilt or innocence of the accused. Not about the issues that you have introduced at this trial. The question is whether there was a trial according to law.”
Mr. Justice Brooke referred to the speech of Manning to the jury, and the attempts by Associate Chief Justice William Parker to neutralize the submissions. “I can’t remember reading a case where the trial judge had to go to this extent to tell a jury to disregard counsel’s statements… That is very, very serious. He (the trial judge) was trying to save the trial.”
Mr. Manning then began a broad attack on Section 251 of The Criminal Code. This is the section of the Code which makes abortion illegal except in the cases covered in the 1969 amendments. The amendments allow abortions only in specific cases, and under very specific conditions. A woman may have a legal abortion only in an accredited hospital after a therapeutic abortion committee has ruled that the pregnancy endangers her life or health.
Manning claimed that the sole purpose of Section 251 was to protect the health of the mother against the dangers of abortion. With safer abortions, he argued, the health hazard to mothers no longer exists, and therefore Section 251 should be removed from the Criminal Code. He referred once again to the Margarine case (which he had quoted ad nauseam in the previous trial). For years margarine was thought to be injurious to health and its use in Canada was illegal. Once this opinion was shown to be false, the use of margarine was legalized. Manning argued that as there was no social evil in margarine, so there was no social evil in allowing abortions. He reiterated that he believed there are no rights to the fetus in Section 251.
The judges did not agree and a debate followed concerning the state’s interest in protecting the fetus, the rights protected under the Charter of Rights and Freedoms, the balance of conflicting rights, and whether Parliament or the Courts should decide the issues. Manning, waving like a banner the Roe v. Wade decision which opened the door to abortion on demand in the United States, suggested the judges should follow suit here. Mr. Justice John Brooke countered by saying “There are a variety of interests across the country. Is it for judges or Parliament to say?” He added that abortion laws in the United States would be far different had President Reagan been able to appoint two members to the U.S Supreme Court.
Mr. Justice Dubin took issue with Manning on the purposes of Section 251 and declared that these were meant to balance the rights of the fetus with the health or life of the mother. He told Manning that his argument flew in the face of the Supreme Court of Canada decision ten years ago in a case involving Morgentaler. When Manning persisted in arguing that Section 251 was designed to safeguard the health of the women, Dubin replied, “That’s not what the Supreme Court said – I suggest you re-read the judgement.”
Associate Chief Justice Mackinnon interjected that, at any rate, the section presupposes that not all women will be eligible for abortions.
Amongst the many other lines of attack, Manning claimed that Section 251 was vague, that it takes away freedom of religion, that Ontario women do not have equal rights because Quebec women have easy access to abortion, and that an attempt to get a retrial is an abuse of justice.
There was scant sympathy from the judges for some of the arguments. They asked whether, because Quebec allows the law to be broken, it means that all other provinces must do the same. There was open skepticism over the claim that because some religions allow abortions, therefore a woman’s choice to have an abortion is “a personal, religious, moral, private right, worthy of being protected under the Constitution. It ought not to be taken away without compelling reason.” The judges were not convinced. “Religious value to have an abortion?” Asked Associate Chief Justice MacKinnon. “I have difficulty with that,” said Mr. Justice Brooke, “I am tripping on what you mean by the right.” Judge Dubin wanted to know “Is this religious belief one that mandates a woman to have an abortion?” The judges could not see why a woman whose religion accepted abortion had fewer rights, than any other woman, including atheists, and Judge Dubin added “It’s beyond me at the moment.”
Morris Manning completed his submission in mid-afternoon on May 2. After the usual short recess the judges returned to the courtroom, and Chief Justice William Howland told the Ontario Crown counsel, Bonnie Wein, that she need not answer four of Manning’s arguments. Apparently this is a move that appeal judges use occasionally when an argument lacks merit or is “overly exotic.” They dismissed the arguments that Canada’s abortion laws constitute cruel and unusual punishment on women and that it is an abuse of judicial process for the government to continue pursuing Morgentaler through the courts. They also rejected arguments that dealt with powers of government and hospital therapeutic abortion committees with respect to abortion.
In her submission, Bonnie Wein dealt with the right of the Crown to appeal an acquittal. Her main thesis was that there must be justice to the accused, but that equally there is a counterbalance of justice in the interests of the public. Right of appeal against an acquittal is needed because it secures a universal law, protects the public against legal errors, enhances the public appreciation of the legal system, and ensures that there is respect for criminal procedures and the law by all those engaged in law procedures.
Before Ms. Wein entered into her main argument, that Section 251 of The Criminal Code was valid in the light of Section 7 of the Charter, she stated that the evidence called by the defence in the trial was broad and irrelevant to the constitutional issue. She quoted from the transcript of the trial to prove that the Crown had objected to the introduction of this evidence. In a reference to the earlier Supreme Court ruling, she said that Chief Justice Laskin had ruled that evidence that women want abortions, and that there are safe ways of terminating pregnancies, is not material to the issue, namely the guilt or otherwise of the accused.
Ms. Wein said that the Morgentaler defence “wrongly presumed health to be the sole purpose of the legislation, and that was where the case got into trouble on the evidence.” There is a morality underlying Section 251, and the purpose is to protect the unborn child. She argued that it is a fundamental misunderstanding to believe that women have a right to abortion, and Mr. Justice Dubin seemed to agree. Problems of equal access etc., are not faults of the legislation. One of the doctors from the United States at the jury trial acknowledged that even the most liberal abortion laws do not answer all questions. The fault does not lie, she said, in the legislation.
In discussing Section 7 of The Charter, which says that everyone has the right to life, liberty and security of person and the right not to be deprived thereof except in accordance with principles of fundamental justice, she said that this is a broad definition but not broad enough for “freedom of choice.” It does not cover the right to abortion. She added that the physician-patient relationship is not affected, and doctors must operate under the law. Whether one calls it abortion on demand, on request, freedom of choice, or a woman-and-her-doctor-decision, it is the same thing. There is no right to abortion in Section 7 of The Charter.
Roe v Wade: Exercise in raw judicial power
On Monday May 6, Ms. Wein discussed the significance of the words ‘principles of fundamental justice’ used in the Charter in Section 7. She said that the term ‘due process’ was rejected, and she emphasized that the change was made, with the strong backing of the then Minister of Justice, Jean Chretien, to avoid what happened in the United States, especially in regard to abortion and capital punishment. By use of due process, the Supreme Court of the United States overturned the legislation of most States in regard to abortion. Ms. Wein stated that Parliament should alter laws, not the Courts.
Further Bonnie Wein said that the right of ‘privacy’ which Manning claimed was in the Charter (and which was the basis of the Roe v Wade decision in 1973) was not in the Charter and was never intended to be in the Charter, as the records of the standing committee make clear. She added “The framers of the Charter sought to avoid any questions of … the courts striking down legislation that Parliament had intended to pass.”
The defence had pleaded that the intentions of Section 251 of the Criminal Code were vague. One judge remarked that there was nothing vague about subsections (1) and (2), but what about health? The reply was that Morgentaler and his associates clearly knew there was no medical certificate, and could not claim that health was vague.
Manning had argued that Section 251 is against Section 2 of the Charter which guarantees freedom of conscience and religion, because some religions allow abortions. Ms. Wein replied that there is no religious purpose to the legislation, no religious belief is interfered with, and there is no evidence of interference of conscience. By contrast she pointed to the religious purpose of the Lord’s Day Act. In the case of abortion there is “no nexus to any particular religious tenet.”
Mr. Arthur Pennington, the counsel for the federal government began his submissions late in the day. He made a number of brief points. He said that evidence at the jury trial was mainly hearsay, often at second or even third hand, and was inadmissible. Moreover, Mr. Hutchinson, who had been the defence witness on religion at the trial, was not an expert witness on any religion but his own United Church.
He said the various polls showed the Canadian people do not accept abortion on demand, and stressed the fact that privacy was considered, and rejected, for inclusion in the Charter.
A horrible example which Canada would well avoid
On Tuesday May 7, Pennington dealt largely with the effects of Roe v. Wade decision in the United States, the criticism by legal scholars of this “exercise in raw judicial power,” and the effects by Congress and the various State Legislatures to circumvent, as far as possible, the present state of the federal law. He argued that this obviously provides a horrible example which Canada would well avoid.
In his short final submission Manning urged the court to break new legal ground by concluding that Canadian women do have a right to abortion.
For those of us who have been in the courtroom the ending was an anti-climax – it came so suddenly. The five judges will have some months to consider their opinions, but it is likely that whatever the outcome there will be an appeal to the Supreme Court of Canada.
