On October 1st, 1985 the long-awaited judgment of the Supreme Court of Ontario Court of Appeal concerning the Morgentaler Trial was handed down.  In a unanimous decision the five judges set aside the jury verdict of acquittal, and ordered a new trial.  Their concluding statements included the following:

“The errors at trial were so fundamental that there has been no trial according to law… Accordingly, the appeal is allowed, the verdict of acquittal is set aside, and a new trial directed.”

The saga of this court case has been long.  On June 15, 1983, Morgentaler, Smoling and Scott opened their illegal abortion clinic in Toronto, and this was raided by the police on July 5.  Following their arrest, the three defendants appeared in court on November 21, 1983, and the case has dragged on for almost two years.

In the preamble to the judgment, and in the concluding paragraph which mentioned “misunderstanding on the part of certain segments of the news media as to the role of the Court in this case,” the judges emphasized that their task was not to express an opinion on the merits or demerits of abortion.  Their purpose was to see whether section 251 of the Criminal Code was constitutional, and whether the case was properly put to the jury.

The very lengthy arguments considered by the Court of Appeal revolved around four main issues.

  • Does section 251 of the Criminal Code, which concerns abortions violate the Charter of Rights and Freedoms?
  • Is it unconstitutional to appeal a verdict of acquittal given by a jury?
  • Was the defence of necessity applicable in this case?
  • Did the address of the counsel for the defence, Mr. Manning, contain misstatements in law?

Section 251 of the Code v. the Charter

The judges dealt first, and at length, with Defence Counsel Morris Manning’s submission that Section 251 of the Criminal Code violates the Charter, or is in other ways unconstitutional.  They also chose to include Sec. 15 of the Charter in their deliberations though this did not come into effect until April 17, 1985, long after the offence and trial.

Their unanimous agreement was that Section 251 of the Code is not inconsistent with the Charter.  Amongst their conclusions was the statement that S. 251 does not violate Sec. 7 of the Charter “by depriving any persons of their rights to life, liberty and security of the person, except in accordance with the principles of fundamental justice.”

They dismissed the charge that S. 251 violated the freedom of religion and conscience guarantee in Section 2(a) of the Charter.  They added “Parliament attempted to balance the interests of pregnant women and potential life and, if there is in any incidental way an infringement on freedom of conscience (which we have difficulty in seeing), such infringement is demonstrably justified in this society.”

In a similar vein they dismissed seven other charges that Sec. 251 was unconstitutional, for example, that the wording is vague, and that it violates guarantees of equality under the law, etc.

Right to Appeal an Acquittal

The Charter was also quoted by Mr. Manning in his attempt to prove that the Crown has no right of appeal from a verdict of acquittal.  But the judges, after reviewing cases and legal texts from Britain, Australia, New Zealand, the United States, as well as from Canada, disagreed.  “There are valid policy reasons for permitting the crown to appeal from an acquittal on questions of law alone to ensure the correct and uniform interpretation of the criminal law.”  They agreed that in their view the section of the Code which gave the Crown the right of appeal does not contravene the Charter.

The Crown Appeal

The Court, having cleared the deck of all constitutional arguments, then turned to the Crown appeal.  The Crown’s right to appeal against a jury acquittal is limited to questions of law.  The Crown counsel argued that the judge at the trial had erred in leaving the defence of necessity to the jury, and by instructing the jury that the evidence given in court on behalf of the defence was relevant to the defence of necessity, when in law it was not.  Furthermore, he argued that Mr. Manning’s address to the jury was of itself reason for a new trial.

The judges stated in their decision:

“With respect, we think the defence of necessity was misconceived… Not only did the defendants fail to make every reasonable effort to comply with the law, but they consciously agreed to violate it.  Their dissatisfaction with the state of the law, although perhaps relevant to the issue of motive, afforded no basis for the defence of necessity.”

A little later on, they add:

“…the defence of necessity was not open to the respondents, and the trial judge erred in leaving that defence to the jury.”

Judge’s Charge to the Jury

The trial judge in his charge to the jury outlined the evidence given by the defence (the claim that there is an increased risk factor when abortions are performed in hospitals; that Morgentaler had exhausted efforts to change the law, etc.) and said it was relevant to the defence of necessity.  At the hearings this ‘evidence’ was described by Mr. Pennington, representing the Attorney General of Canada, as “hearsay, at second or even third hand.”  It was described in the judgment as “inadmissible evidence being introduced during the trial,” and “Normally such evidence would not be admissible.”

The Court of Appeal stated that the trial judge’s fundamental error was that he failed to distinguish between the law of necessity as it applies to abortions in an emergency, and an agreement to procure miscarriages contrary to the  law for any women who wanted to end their pregnancies.

“The merit of the law was not a matter for the jury to consider on the issue of necessity.  Yet, in many respects, the manner in which the learned trial judge related the evidence to the defence of necessity invited the jury to acquit the respondents if they accepted the evidence tendered on behalf of the defence as to the unsatisfactory state of the law.  We, therefore agree…. the learned judge erred in instructing the jury as to the manner in which that issue could be resolved.”

Address to the Jury by the defence Counsel

The principal theme of the defence counsel was to urge the jury to acquit the accused because he claimed the law was a bad law.  The judgment records that “the defence counsel urged that it was the right of the jury, notwithstanding the direction of the trial judge as to the law applicable to the offence, to consider that law and decide that it should not be followed and applied.”  They quoted Mr. Manning’s words:

“But I submit to you that it is up to you and you alone to apply the law to this evidence and you have the right to say it shouldn’t be applied.”

They noted that the trial judge tried to correct what he regarded a serious misstatement of the law adding, “In our opinion, he was right.  It was of such gravity as to place the whole trial in jeopardy.”

The five members of the Court of Appeal pulled no punches as they continued:

“In our view the defence counsel was wrong in urging the jury that they had the right whether to apply the law the trial judge instructed them was applicable.  The defence submission was a direct attack on the role and authority of the trial judge and a serious misstatement to the jury as to its duty and right in carrying out its oath.  In our system the authority and duty of the judge in a criminal case is well understood and followed…

“The jury has no right to do what they like according to their view of the law or what they think the law should be.  If the jury has no such right, it is clearly wrong to tell them to the contrary…

“The submission of defence counsel was a forceful plea to the jury to nullify a law passed by Parliament.  The jury was told to exercise a right that the jury did not have, to determine not to apply that law in the face of the instructions given by the trial judge.  In effect this was a statement to the jury that they were the final arbiters of the law to be applied in deciding the guilt or innocence of the accused.  This was a serious error in this trial and in our view it raises a question of law alone which can be determined by this Court… The trial judge sought to correct the error but, in our opinion, it is unrealistic to suggest that this was impossible.  The appellant Crown must succeed on this ground also.”

The conclusion was clear.  There were substantial errors in law in the trial.  The crown had satisfied its obligation to prove that “in the light of these fundamental errors the verdict cannot stand.”  A new trial will be directed.