On Tuesday October 7, the Supreme Court of Canada began a four-day hearing on the appeal of Drs. Morgentaler, Scott and Smoling regarding the Ontario Court of Appeal’s decision to order a new trial for the three following a jury acquittal on two-year-old abortion charges. The Supreme Court Justices heard arguments on both the constitutionality of Section 251 of the Criminal Code (our abortion law) and specific points relating to the Ontario Court of Appeal ruling.
The hearing was attended by Morgentaler, Scott and assorted groupies, including Judy Rebick, Norma Scarborough, Carolyn Egan, Selma Edelstone and Burnaby NDP MP Svend Robinson. Local Ottawa CARAL members Glodwyn Piercy and Debbie Gill were also in attendance. Dr. Smoling was nowhere to be seen.
The main courtroom of the Supreme Court holds only 80 spectators and seating was on a first-come-first-served basis…except for Morgentaler and Scott who had reserved seats in the front row. Problems occurred on the first day of the hearing when an enthusiastic professor at a local university sent his entire law class to view the proceedings. Pro-life and pro-abortion supporters returned after the lunch recess to find every available seat taken and their entrance to the courtroom barred. Neither side was amused. This reporter retired to the Press Room to view the proceedings on closed circuit TV, happily freed from the decorum of the highest court in the land.
Normal security at the Supreme Court building is very tight; everyone is required to pass through two sets of x-ray equipment of the kind used in airports. Staff at the Court had been warned to expect large pro-life demonstrations, and to be on the lookout for anyone who might attack Morgentaler. Needless to say, no such demonstrations or attacks occurred.
The appeal case was a rehash of the two lower court hearings which preceded it, with the added argument from Morgentaler’s lawyer, Morris Manning, that the Crown should not have the right to appeal an acquittal in the first place. Manning’s basic arguments regarding the constitutionality of the abortion law are these: Section 251 of the Criminal Code violates Section 7 of the Charter of Rights and Freedoms (“life, liberty and the security of the person” clause) because it violates “the right not to have children;” Section 251 also violates Sections 15 and 28 of the Charter (“equality rights” clauses) because it pertains only to women, Section 251 is invalid because it is too vague. Section 251 violates the right to freedom of conscience and religion under the Charter because some religions do not permit abortions, and violates Section 12 of the Charter which prohibits cruel and unusual punishment or treatment. As well as these, Manning argued that Section 251 violates several other sections of the Constitution Act and is an unconstitutional delegation and abdication of criminal law by Parliament through the use of Therapeutic Abortion Committees.
Both the provincial and federal lawyers argued that Manning’s arguments were predicated on an invalid assumption: namely, that the sole purpose of enacting Section 251 of the Criminal Code was to protect the health of women. They stated in no uncertain terms that Parliament’s purpose in enacting Section 251 was to protect both pregnant women and unborn children. They asserted that abortion was considered an offence and crime at common law and it is still within the rights of Parliament to enact such legislation notwithstanding the above-mentioned provisions of the Charter of Rights. They pointed to Section 1 of the Charter, which allows reasonable limits to be imposed on the rights and freedoms embodies in the Charter when these limits can be demonstrably justified in a free and democratic society. The factum of the Attorney General of Canada presented to the judges, states at page 21:
”It is submitted that any ‘right’ which may exist to an abortion could not be an absolute right to an abortion on request, but would have to a more limited right in keeping with Canadian traditions which would extend the right of a pregnant woman to terminate pregnancy only in certain restricted circumstances, namely, when it can be established that the life or health of that pregnant woman would be endangered…Section 251 of the Code balances the rights and interests of pregnant women with society’s legitimate interest in protecting the unborn.”
Manning pointed in elaborate detail to Quebec’s refusal to uphold the abortion law, and the supposed beneficial effects this has had on the overall health of Quebec women. He further contended that the law should be struck down because access to abortion is limited in some parts of the country. The government lawyers responded that the legalization itself neither demands nor negates access, and that solving administrative problems was not within the purview of the Court.
The judges listened conscientiously to all of the arguments presented, asking few questions. However, when Mr. Manning began his arguments as to why juries should be told they have a right to disregard the law (as he did in the original trial), the scene changed dramatically.
Five of the seven Justices asked pointed questions, some not bothering to hide their sarcasm. Put simply, he learned judges questioned the point in having laws at all if juries can be bluntly told to ignore them. One Justice pointed out that if juries were given carte blanche to ignore the law and acquit the accused, they could similarly ignore the law and convict the accused. Realizing that he had lost that particular battle before he began.
Manning rested his case shortly thereafter, on a less than jubilant note.
It is predicted that the Court will take between six and eighteen months to render their decision. The Borowski case is headed for the Supreme Court and will in all probability be heard before any judgment in this case is handed down. In the meantime, the Morgentaler and Scott abortuaries in Toronto remain open and abortion charges in Ontario, Manitoba and Quebec remain on hold.
Although few are willing to second guess the learned Justices of the Supreme Court, early predictions are that the Court will toss back to Parliament the job of defining fetal rights and women’s rights. Meanwhile, open season on unborn babies remains.