The definitive decision on the abortion issue under the Charter of Rights was the Morgentaler case, handed down by the Supreme Court of Canada in January 1988. In that decision, the Supreme Court struck down the abortion provision (Section 251) of the Criminal Code, which prohibited abortions except when necessary to safeguard a woman’s “life or health” and after approval by a hospital abortion committee.
Contrary to the blaring headlines at that time, the court did not then state, and never has stated, that women in Canada have a “right” to an abortion. What the Supreme Court of Canada actually decided in the Morgentaler case was that the abortion law was unacceptable on procedural grounds in that it contravened Section 7 of the Charter, which provides that: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice.”
The court concluded that unequal access to abortion was a denial of the security of the person.
To strike down the abortion law on procedural grounds, however, the court required evidence that there was, in fact, unequal access. Neither Henry Morgentaler nor his lawyers produced a single witness who had actually been prevented from obtaining an abortion. A federal government report, the Report of the Committee on the Abortion Law, tabled in 1977, had concluded that there was a lack of equal access to abortion in Canada, but it was over 10 years old.
There was another study on access to abortion, however, carried out on behalf of the Ontario government by a well-known pro-abortion activist, Dr. Marion Powell. The conclusions reached by Powell in her report were based on references, sources and authorities that were solidly pro-abortion. Her report was not an accurate reflection of the abortion situation, yet three of the five Supreme Court judges in the Morgentaler case, who were in favour of striking down the abortion law, relied heavily on this report to support their argument that there were procedural defects in the law.
Moreover, the Powell Report was never officially admitted as evidence in Morgentaler, since it did not exist at the time the case was argued on Oct. 7-10, 1986. It was tabled in the Ontario legislature on Jan. 29, 1987, over three months after the Morgentaler hearing. There is no record in the court docket of any application to seek leave to admit this report and it never formed a part of the court record.
Consequently, by using this report as a basis for its decision, the court relied on a biased and inaccurate document, obtained behind the scenes, on which there had been no cross-examination. The use of this evidence in this manner was unprecedented in the procedural rules of the court. Justice William McIntyre, one of the two dissenting judges, objected to the reliance on such material by the other judges, and stated that the court should “place principal reliance upon the evidence given under oath in court.”
The Supreme Court of Canada wanted to make the abortion law a less restrictive one, and the “procedural” argument based on the dubious evidence was its means of doing so. The court’s decision in this regard was made easier by the fact that there were no pro-life intervenors in the case.
(As legal counsel for Toronto Right to Life, I prepared a letter of complaint to the Canadian Judicial Council, signed by the resident, Laura McArthur, on Feb. 2, 1989, about the questionable use of evidence, with full knowledge that the Judicial Council would quickly dismiss the complaint, which it did. The real purpose of laying the complaint was to create a paper trail for later generations to follow.)
On the positive side, no court in Canada has ever stated that Parliament does not have the jurisdiction to pass legislation to protect the life of the unborn child. We await the day when Parliament fulfills its responsibility in this regard.
Gwendolyn Landolt is the national vice-president of REAL Women of Canada.