Morris Manning, Defense Counsel for Henry Morgentaler, is obviously introducing evidence into the court record, which is little more than pro-abortion propaganda. Thus will the Court of Appeal and the Supreme Court of Canada, when they adjudicate this case in subsequent years, be “informed” on the pro-abortion arguments. Manning, of course, is also no doubt aware of the advantages of the media picking up on this propaganda and of the possibility that it may have an effect on any prospective jurors when the trial takes place.
However, the propaganda aside, Manning is attempting to obtain a ruling on a broad constitutional question, namely, whether under the Charter of Rights the Courts are no longer restricted to merely ensuring that the procedural rules have been observed but may now go further and consider the content or substance of the legislation.
Governments or courts
Traditionally, in Canada, political decisions (such as abortion) have been made by elected governments and not by the Courts. However, it is being argued in the Morgentaler case (as well as some other cases now before the Courts) that the new Charter of Rights provides criteria that enable the Courts to override parliament, or in effect, to substitute their own opinion for that Parliament.
For this reason alone, apart from the abortion issue, the Morgentaler case is very important, since it could have a wide-ranging effect in other areas of the law such as pornography or religion in the schools. If the court were to accept Manning’s arguments – that it does have the power to rule on political questions – then this will give rise to many more difficulties (as has occurred in the United States’ courts). Our whole system of justice and government will have been effectively changed.
Judges are appointed by the executive (that is, the Prime Minister), they are not responsible to the people and they are protected from removal by tenure. It is of great concern to all of us should five individuals (a bare majority of the court) be permitted to rule on the social and political issues of the day, contrary to, and regardless of, the wishes of the people as represented in parliament.
Morgentalers’ case is significant, very significant.