In the first two parts of this series, we focused on testimony presented to the parliamentary sub-committee considering how federal legislation should be changed to reflect Section 15 of the Charter, the “equal rights” section, which came into effect in April of this year.
In Part I, we reported on the testimony given by feminist, pro-abortion and homosexual rights’ organizations. These various groups appear to have formed a loose coalition to work towards a common goal. (See my column, “Clearing the air,” elsewhere in this issue for information on this point.) Part II of our report concentrated on briefs presented by pro-family organizations that balanced the radical views presented by the groups featured in the first part.
Abortion was not one of the topics included in the discussion paper prepared by the government to facilitate public input at the hearings. It was, however, a topic brought up many times by different groups. Part way through the public hearings, the committee chairman, Patrick Boyer, expressed his surprise that abortion was seen as relevant to discussions on the equality issue.
The majority of the feminist-oriented organizations who submitted briefs concerning women’s rights in general endorsed or promoted abortion as a woman’s right and argued that “restricted access” to abortion denies women the opportunity to fully participate in society.
Many pro-lifers do not view the present abortion level of over 65,000 a year as indicating a lack of access to abortion. And yet, “restricted access” is the term used to describe the current “limitations” on abortion specified in the Criminal Code. The single-issue, pro-abortion groups and the feminist women’s groups all argue that provisions restricting abortions to hospitals with therapeutic abortion committees (TACs) are unfair. Such restrictions, they assert, leave stranded many women who seek an abortion, since hospitals may decide not to have TACs and not provide abortions. Women outside of large urban areas have difficulty in getting abortions, it is claimed, because if they cannot get an abortion in their own community, they have to travel. This discriminates against poor women who may not be able to afford to travel. Further, TACs are discriminatory in that they take the ultimate decisions out of the hands of the woman involved and subject her to patronizing decisions from mostly male doctors.
At least eight of the briefs received by the committee were focused solely on women’s rights to “reproductive freedom.” (Presented by such organizations as Canadian Abortion Rights Action League, Abortion by Choice, Calgary Birth Control Association, Citizens for Reproductive Choice and Planned Parenthood Saskatchewan.) These organizations want abortion removed entirely from Criminal Code legislation and they want free-standing abortion clinics across Canada.
The pro-life point of view was not heard so frequently.
Some pro-life women’s organizations (REAL Women of Canada, Alberta Federation of Women United for the Family and Women for Life, Faith and Family) included rights for the unborn in their briefs, which focused on equality for women. One individual, Pastor Fred Vaughn, appeared before the committee I Toronto and made an eloquent plea for the unborn (see Part II of this series, November Interim ). The only pro-life organization to appear personally before the committee was the New Brunswick Coalition for the Protection of Human Life.
Other pro-life groups submitted written briefs. The committee heard from Alliance for Life, the educational umbrella organization for the pro-life movement in Canada, and from Campaign Life, the largest political action group. Written testimony was also submitted by Action Life Ottawa, the Association of Southwestern Ontario Pro-Life Groups, B.C. Teachers for Life, Canadian Advocates for Life, Right to Life groups in Chatham-Kent, St. Thomas, St. Catherine’s, Stratford and Yarmouth and Area, and Terrace and Williams Lake Pro-Life.
Alliance for Life compared the inequities facing the unborn child with those suffered by women in their struggle to win full and equal benefit and protection of the law. The Alliance brief said,
“Today it is the child in the womb who is at the mercy of more powerful groups within society, usually female-dominated, who seek to improve their own status by denying equality to less powerful individuals.”
New Brunswick Coalition for Life argued that abortion contravenes Section 7 of the Charter (“Everyone has the right to life…”) and Section 12 (“Everyone has the right not to be subjected to any cruel and unusual treatment or punishment”). Pro-life briefs argued persuasively that abortion is discrimination both on the basis of age and also on the basis of sex. As Alliance for Life’s brief noted,
“These children, undeniably the youngest and most vulnerable members of the human family, are denied benefit of the law merely because of their age and place of residence – the womb.”
The Alliance brief also tackled the question of access and equality: that abortion must be equally available to all women in Canada arises from the mistaken notion that abortion is a fundamental right of women. Such a notion, says Alliance, is absolutely repudiated both by the original framers of the 1969 abortion legislation as well as by recent legal decisions.
In support of this point, Alliance quoted the 1984 decision of Justice Parker, handed down in the Saskatchewan Court of Queen’s Bench. He had written
“…that no unfettered right to an abortion ca be found in our law, nor can it be said that a right to an abortion is deeply rooted in the traditions of conscience of this country.”
The Alberta Federation of Women United for the Family pointed out that abortion discriminates on the grounds of sex. “The father of an unborn child has no right to prevent the death of his child it the mother chooses to have an abortion,” their brief said.
Action Life Ottawa contended that, under current law, “these tiny human beings are being discriminated against on the basis of age, sex, place of residence and/or physical or mental disability.” Yearly, 65,000 unborn babies are denied the most fundamental right – the right to life, and, says Action Life, “no other individual suffers discrimination to such an extent that he/she loses his/her life.”
Campaign Life’s brief attempted to neutralize the pro-abortion argument that Section 15 of the Charter ‘renders unconstitutional the abortion provisions of the Criminal Code.” It argued that “the fundamental purpose of a prohibition against abortion is to protect the life of the unborn child.” Western societies, if noted,
“Have since earliest times prohibited and restricted abortion and the purpose f this was to safeguard the lives of unborn children. Any suggestion that abortion laws are intended to regulate the health care of women is unfounded and historically unsupportable and was rejected by the Supreme Court of Canada in R. v. Morgentaler.”
The brief pointed out that the requirement for TACs, seen by many as discriminatory in allowing “restricted access,” does not contravene the equality section of the new Charter. This charge had already been settled by the Supreme Court which ruled that TACs were not an infringement under Canada’s previous Bill of Rights.
Chief Justice Bora Laskin dismissed legal arguments challenging the validity of Section 251 of the Criminal Code, stating that such arguments are “a reach for equality by judicially unmanageable standards.” Campaign Life contends that Chief Justice Larkin’s ruling is equally applicable to the same arguments brought against the equality sections of the new Charter.
Campaign Life also dismissed contentions that restriction on abortion is sex-based discrimination. “No other medical procedure constitutes an attack on another living being,” the brief states. It continues
“The very fact that abortion is regulated by the Criminal Code shows that it is a medical procedure like none other. Men do not have the right to procedures which affect other human lives. Consequently, the availability of medical procedures is not relevant. Sexual discrimination would exist if women were prevented from doing something which men were allowed to do. However, such is not the case here. Neither sex has an unrestricted freedom to medical procedures which take human lives.”
The clearest impression gained from studying the testimony presented at the hearings is that the pro-life testimony, excellent though it may be, is swamped by the dominance of the pro-abortion point of view. There were only two oral presentations directed specifically to the rights of the unborn. This was backed up by 16 written briefs. Fewer than half a dozen women’s groups supported rights for the unborn in their submissions concerning equality for women. This points most dramatically to the need for the pro0life movement in Canada to become more active and organized to get the message across in such organized parliamentary hearings.
The major obstacle barring the way is, of course, the funding of the pro-life movement. Unlike feminist and “reproductive rights” associations, pro-life groups do not have the benefit of government funding which helps full participation in such events. For example, NAC (National Action Committee for the Status of Women) received a special government grant to send a representative across the country alerting like-minded organizations to the upcoming hearings and helping them organize their submissions to the committee.
In contrast, most pro-life groups heard about the hearings at the last minute and were hampered by the fact that volunteers are not always available to write briefs and organize appearances at short notice, especially when the hearings were scheduled during the late Spring and early Summer.
Written briefs, unfortunately, are less effective than oral presentations. Written submissions may be only cursorily studied by busy committee members while actually getting in front of a committee and being available for questions on the testimony “fixes” the organization personally in their minds. This parliamentary committee, for example, heard from approximately 250 organizations and individuals in their public hearings, received almost 550 written submissions and accumulated over 2,500 pages of testimony.
Oral presentations are transcribed and sent to all MPs and Senators and are available to the general public through the Government Publishing Centre. Interested parties, therefore, can read the Minutes and see what was said.
Testimony submitted in written briefs is not, however, entered into the Minutes. It is, therefore, not widely available to other interested parties. Although they are read by committee members, it is questionable as to how memorable such briefs are to parliamentarians swamped with written opinions.
Nevertheless, limited though pro-life testimony was, it has served notice that both sides of the issue see Section 15 as having bearing on the question and has pointed out one again the fundamental discrimination imposed on pro-life organizations who do not have the benefit of government funding to assist them in getting their views aired in such public hearings.
In the eyes of at least one experienced organizer, pro-life input was sufficient to stop the committee members from making any recommendations at all on the abortion issue.
Equality for All, the committee report, was made public in October. On abortion, the report states,
“The Committee received representations from many individuals and organizations critical of the abortion provisions in the Criminal Code (section 251). Some urged the repeal or relaxation of these provisions while others wanted them strengthened to limit the availability of abortion. Both groups relied on section 15 of the Charter.
“Those who take the pro-choice position argued that the Code discriminates against women by singling out a particular medical procedure, which happens to be carried out on women alone, for regulation. They also argued that the Code is unequal in its geographic application because of discrepancies in the hospital policies and procedures that determine whether and to what extent legal abortions are available in a particular area of the country.
“On the other hand, those who take the pro-life position advanced the argument that the legal protection offered by Section 15 should extend to the unborn. They argued, among other things, that the present law discriminates, on the basis of age, against the unborn and, on the basis of sex, against fathers of the unborn, who have no right to participate in the decision to terminate a pregnancy.
“We do not doubt that equality considerations are relevant to the abortion issue. However, if Parliament is to reconsider the abortion provisions of the Criminal Code it will have to take account of other factors as well.
This last sentence quoted is most interesting. If, indeed, a “division of views” on the subject of abortion is present among committee members, it’s not that easy to find in the remarks printed in the Minutes of the public hearings. While several committee members clearly identified themselves as supporting the pro-abortion side of the issue, members who, perhaps, are aligned to pro-life did not openly state so. Those who support abortion are Pauline Browes (PC, Scarborough Centre), Mary Collins (PC, Capilano), Svend Robinson (NDP, Burnaby) and Sheila Finestone (Lib., Mount Royal). The three who did not commit themselves to either side are the Chairman, Patrick Boyer (PC, Etobicoke-Lakeshore), Maurice Tremblay (PC, Lotbiniere) and Roger Clinch (PC, Gloucester).
Equality for All contains 85 recommendations for changes in legislation to comply with Section 15 of the Charter. The recommendations cover such areas as women, the disabled and racial minorities in the workforce, maternity benefits, marital status, government appointments, sexual orientation, women’s participation in the armed forces, the abolition of mandatory retirement, immigration and an change in the philosophy which has traditionally upheld regulations to preserve Sunday as a day of rest.
Next month: Part IV will focus on the Equality for All report.