The January 28 decision marks the end of a legal battle which began in November 1984, when a jury acquitted Henry Morgentaler, Leslie Smoling and Robert Scott, on charges of procuring illegal abortions at 85 Harbord Street in Toronto. That acquittal was appealed by the Crown and, in October 1985, the Ontario Court of Appeal ordered a new trial on the same charges, on the grounds that errors in law made the jury trial invalid. But Morgentaler’s lawyer, Morris Manning, appealed that decision and appeared before the Supreme Court of Canada in October 1986.
Manning’s Supreme Court arguments centered on constitutional challenges to the 1969 abortion law, arguing that the law violated the 1982 Charter of Rights and Freedoms. He claimed that Section 251 of the Criminal Code, with its requirement that all applications for abortion be scrutinized first by a therapeutic abortion committee caused “dangerous delays” for pregnant women. And he argued that restricting abortions to hospitals created an unfair “unequal access” in parts of Canada where hospitals refuse to supply such services.
Although the majority of the Supreme Court justices found Section 251 unconstitutional, and thus did not address in detail the findings of the two lower courts, all seven justices reprimanded Morris Manning for his conduct during the jury trial. Manning’s remarks to the jury, that their duty was to acquit the three of criminal charges if they (the jurors) did not like the abortion law, were declared “irresponsible.”