In mid 1983 Henry Morgentaler, Leslie Smoling and Robert Scott were charged with conspiracy to perform an illegal abortion in Ontario. However, before even entering a plea, their lawyer, Morris Manning, arguing that the charge was unconstitutional, asked that a motion be heard on those grounds.
The motion was granted and, with Justice Parker presiding, the ensuing proceedings lasted for 63 days. The Hearing which began on November 21, 1983, ended on July 20, 1984, when Judge Parker handed down his judgment dismissing M. Manning’s motion that the charges were unconstitutional.
A trial date for the three abortionists is now being set.
Laura McArthur, President of Toronto Right to Life, sat in one the proceedings for 59 of the 63 days. The following are her observations:
It was extremely interesting- horrible – but very interesting.
Judge Parker, throughout the hearing remained totally neutral. There was no way you could tell if he had any leanings one way or the other.
He was polite, mannerly, always in a good frame of mind, and was generally very accommodating. He accepted all information or evidence, even though it might not have been particularly pertinent. He did so because he said it was a “motion” and not a trial. He stated at the beginning that he was prepared to hear everything and then he would sort it out.
“On the day of the judgment he was very firm, very decisive.”
He was out-of-sorts on only two occasions. One day he was short with Arthur Pennington (lawyer for the Attorney General for Canada) and the next time it was toward Manning, so even on off-days he was fair. I had nothing but respect for Judge Parker and even if he had allowed the motion in favour of the accused I would still have the greatest respect for him.
During the trail, Judge Parker seemed very flexible, yet on the day of the judgment he was very firm, very decisive.
The thing that pleased and surprised me the most about the written Judgment was that a lay person could understand it. It was very clearly written; and in its clarity it was easy to see that every single argument of Manning’s was struck down.
There was just one thing that couldn’t be refuted by the Crown and because of this Judge Parker said it might be cause for concern. This was the cruel and unusual clause. A Quebec abortionist testified that, after a saline abortion in a Quebec hospital, a baby was left in the bed with the woman for four hours. The assumption being that in a clinic this could never happen. However, this couldn’t be disproved, so there was nothing that Crown could say. Therefore Judge Parker stated that the uncontested verbal evidence disturbed him.
Manning insisted that, because Morgentaler had been arrested, convicted, tired, and acquitted three times in Quebec, it was an abusive process to charge him again. Judge Parker dismissed this very nicely by saying those arrests took place at another time, in another province, and because the Attorney General of Quebec turned his head to the breaking of the law in Quebec was no reason to expect that Ontario should do the same.
During the hearing Manning had accused the Attorney General of what he termed “Crown Shopping,” which meant that he was out to “get” Morgentaler and was “shopping around” for Judge and Jury to convict him. This argument apparently did not sit well with Judge Parker, because he referred to this twice in his judgment and both times dismissed it as any silly argument should be dismissed.
Manning carried on for hours during the hearing about how the rights of women and doctors in Ontario were discriminated against because in Quebec women could readily get their abortions in clinics and doctors could freely perform them.
“Who were these vague people who were being discriminated against?”
In cross examination, Mr. Pennington handled this well. He pointed out that of all the nineteen witnesses brought forth by Manning, none of them testified that they had been personally discriminated against. So, he asked, who were these vague people from some province, sometime, who were being discriminated against and, why, if they existed, were they not called upon to testify?
The Judge squashed Manning’s argument also when, in his judgment, he said that the argument – that if a law is ignored in one province, it should be ignored in another – “would lead to an absurd situation whereby any provincial Attorney General could render a criminal law provision inoperative across Canada by simply not enforcing it in his own province.”
Manning argued that the abortion law was vague – that people couldn’t understand it and that therefore it should be void. Judge Parker ruled that laws are not void because they are uncertain. In other words, you can find out what the law means and it usually says what it means. Judge Parker continued, “Even if Section 251 [the abortion law] were vague, anyone charged with an offence under Section 251 would know whether or not he or she had received a certificate from the therapeutic abortion committee to perform the abortion and there is no degree of uncertainty as to potential criminal culpability under Section 251 of the Code.”
Manning argued the definition of miscarriage and about how the law really doesn’t say what a miscarriage is. Judge Parker said when you procure a miscarriage, it’s an abortion – period.
Manning talked a lot about poor women in rural areas who couldn’t get abortions.
Pennington and Judge Parker dealt with that very logically, and agreed that there was no discrimination against anyone in criminal law. That the law allowed anyone who fit the criterion for an abortion to have one. Accessibility was another question completely. Pennington said that if any woman is eligible for an abortion, that every region in Ontario has an abortion facility. He also pointed out that many women have to go out of their own immediate area for any form of major surgery.
I will never forget the Margarine Act! Manning used it ad nauseam to rationalize his argument that, the abortion law was really only to protect “women’s health” and said it had nothing to do with the “fetus.”[Margarine was banned in Canada because it was supposed to be bad for your health and later, when they found out that margarine was not harmful, they removed the ban.]
“None could state that … pregnancy could harm the mother’s life.”
Manning argued that because the abortion law was written solely to protect women from backstreet abortionists – because they were unhealthy for women, infection and such – but now that abortion has become “safe” – that there is no longer any need for this protection via the abortion law, as with the margarine case.
It was interesting to note the relationship among the three accused: Morgentaler and Scott versus Smoling. Smoling stayed to himself, went to lunch by himself-was always all by himself. I think, in all the 59 days, I saw him smile or exchanged a word with Morgentaler or Scott no more than once or twice and during the breaks and lunch periods, Morgentaler and Scott would be off with the other abortionists, CARAL people, the press, etc., whereas Smoling would be ignored. He seemed to have no support from anybody, least of all Morgentaler and Scott. Curiosity made me wonder why…
A bit of irony emerged, in that of all the witnesses, none could state that they could tell with any certainty, at the beginning of a pregnancy, that the pregnancy would harm the mother’s life- and there were a lot of abortionists and medical experts there. They could maybe ‘predict’ or ‘expect’ but none could say with certainty that abortion was necessary to save the mother’s life or health.
In fact, there was no serious attempt to even claim that the unborn child was not a human being. Neither was there an attempt, at any time, to claim that human life did not begin at conception.
It was obvious that they had not gone into court to argue whether or not human life began at conception. Rather, they argued that no matter what reason a woman gave for an abortion, it was her right to have one – even if she said “I just don’t want that kid.” They made no further attempt to justify what they were doing – they simply said a woman should have a right to an abortion.
In fact, the first phrase I heard in court was “a woman’s desire.” There was no attempt to establish any other reason but that a doctor should have the right to perform an abortion if the “woman so desired.” It appeared totally irrelevant to them that another human being was involved.
The most important decision by far to come out of Judge Parker’s decision is that Section 251 – the abortion section of the Criminal Code – is not in conflict with any section of the Charter of Rights.
No woman in Canada has the right to an abortion.
Laura McArthur is president of the Toronto and area Right to Life Association.