It has been alleged that the Minister of Finance of Canada, his servants and agents, allocate money from the consolidated revenue fund, comprised of taxes levied upon and collected from the Plaintiff and all other taxpayers in Canada, for various purposes, including the provision of health care and treatment services throughout Canada, and that a portion of the money so allocated is designated for, and expended in, the establishment and maintenance of therapeutic abortion committees. Because, it is alleged, the objects and conduct of therapeutic abortion committees are illegal, it has therefore been alleged that the distribution of money by the Minister of Finance for these specific programs is illegal.
The evidence which was adduced at trial revealed that the Saskatchewan Government receives grants from the Federal Government in accordance with conditions prescribed in various statutes, regulations and agreements. Generally speaking, the Federal Government makes grants to the Provincial Government with respect to three programs: hospital services, medical care services and post-secondary education. The grants are based on population and are payable on the basis of the costs incurred by the Province with respect to these three general programs.
Although costs of performing abortions are included in the expenses of some hospitals, they are not segregated, and the Provincial Government therefore does not make any payments to hospitals representing reimbursement for designated expenses in performing abortions. The direct payments by the Provincial Government for medical services include payments related to therapeutic abortions, but these costs can only be determined by a calculation thereof by the Provincial Government agency responsible for administration of the medical care program. The Provincial Government allocates money to this agency from its consolidated revenue fund to finance medical care services, but there is n o specific allocation for the therapeutic abortion services. Even less is there any allocation of Federal grants to the Provincial Government for therapeutic abortion services. The grants received from the Federal Government, deposited in the Provincial consolidated revenue fund, are referable solely to the cost of financing the general programs entailing hospital services, medical care services and post-secondary education. Consequently, even if it should be concluded that the abortions are ultra vires, as alleged, the Plaintiff has not established that he is entitled to any relief against the Minister of Finance of Canada.
Canadian Bill of Rights
The Plaintiff has alleged that the therapeutic abortion amendments to the Criminal Code are contrary to the Canadian Bill of Rights; that unborn children are ‘individuals’ within the meaning of this term in the Canadian Bill of Rights; that the amendments do not make any provision for therapeutic abortion committees to consider the life or health of the unborn; that the procedures of therapeutic abortion committees deprive the unborn of a fair hearing and an interpreter; and, from the aspect of the unborn as individuals, the unborn are denied their fundamental right to life.
In Morgentaler v. The Queen (1976) 1 S.C.R. 616 it was alleged by the accused, and by the Canadian Civil Liberties Association and the Foundation for Women in Crisis, who were permitted to intervene at the Supreme Court of Canada level, that the amendments to s. 251 violated women’s right to privacy, the security of the person, the right to appear before therapeutic abortion committees and to a fair hearing, and constituted a denial of equality before the law and a denial of due process of law, all as provided for by the Canadian Bill of Rights. The Supreme Court unanimously rejected all of these assertions, with Laskin. C.J.C., being the only member of the Court to set out in his judgment the reasons for the rejection.
It was noted that the allegation involving a denial of a woman’s right to privacy and security of the person was based on United States judicial decisions, particularly Roe v. Wade (supra), and constituted an invitation to the Court to pass judgment on the substantive quality of legislation as well as on the adequacy of procedural safeguards for the right of the individual to life, liberty and the security of the person and enjoyment of property. At page 632 it was stated:
“This Court indicated in the Curr (v. The Queen (1972) S.C.R. 889) case how foreign to our constitutional traditions, to our constitutional law and to our conceptions of judicial review was any interference by a court with the substantive content of legislation. No doubt, substantive content had to be measured on an issue of ultra vires Bill of Rights, and necessary interpretative considerations also had and have a bearing on substantive terms. Of course, the Canadian Bill of Rights introduced a new dimension in respect of the operation and application of federal law, as the judgments of this Court have attested. Yet it cannot be forgotten that it is a statutory instrument, illustrative of Parliament’s primacy within the limits of its assigned legislative authority, and this is a relevant consideration in determining how far the language of the Canadian Bill of Rights should be taken in assessing the quality of federal enactments which are challenged under s. 1(a). There is as much a temptation here as there is on the question of ultra vires to consider the wisdom of the legislation, and I think it is our duty to resist in the former connection as in the latter.”
Without deciding whether the word ‘liberty’ in s. 1(a) of the Canadian Bill of Rights embraced privacy, or freedom of choice by a pregnant woman to undergo an abortion, it was concluded that Parliament was entitled to legislate as it has done in enacting the therapeutic abortion provisions contained in s. 251 of the Criminal Code.
The dispensations afforded by compliance with subsections (4) and (5) of section 251 do not, it was concluded, involve any issue of deprivation of a hearing, but simply make certain conduct lawful which would otherwise be unlawful. In addition, the Court was unable to envisage how the requirement in the Canadian Bill of Rights for due process of law required express provision for review of any decision by a therapeutic abortion committee, or required that reasons be given for the decisions of the committees.
It was also alleged in Morgentaler that the standard upon which the therapeutic abortion committees must act is uncertain and vague, but Laskin, C.J.C. stated that Parliament has fixed a manageable standard and that it was permissible for Parliament to assign to a professional group the exercise of judgment based on such standard. Whether section 251 is viewed as primarily a criminal prohibition subject to a dispensing provision, or as establishing a forum and a formula for lawful abortions, no justification could be found for the Court declaring that s. 251 is incompatible with the Canadian Bill of Rights, and at p. 636 it was stated:
“Both the prohibition in s. 251 and its relieving terms are general in their application; and in qualifying the prohibition against the intentional procurement of a miscarriage by a requirement of certification of likely danger to life or health by a medical practitioner and interposing the safeguards of a medical screening committee and performance of the abortion in an accredited or approved hospital, Parliament has made a judgment which does not admit of any interference by the courts.”
The Morgentaler case entailed an attack on s. 251 of the Criminal Code by those who were desirous of avoiding the prescribed procedures whereby unlawful abortions became lawful – by those who advocated abortion committees. In Dehler v. Ottawa Civic Hospital et al (1980) 25 O.R 748, however, the attack on s. 251 was virtually identical to that by the Plaintiff. It was alleged in Dehler that an unborn person is a human being from the moment of conception, or shortly thereafter, and that abortions result in the killing of innocent human beings without due process of law and the benefit of equality before the law and the full protection of the law. It was also alleged that subsections (4), (5) and (6) of s. 251 of the Criminal Code are ultra vires the Parliament of Canada as being inconsistent with the Canadian Bill of Rights in depriving unborn persons of the benefit and protection of the fundamental rights of that statute. An attempt was made to distinguish these claims from those considered in Morgentaler, but Dehler no other conclusion is permissible but that the Plaintiff’s attack on subsections (4), (5) and (6) of s. 251 of the Criminal Code, on the ground that those subsections violate the provisions of the Canadian Bill of Rights, must fail.
Canadian Charter of Rights and Freedoms
I
The particulars of the Plaintiff’s claim that subsections (4), (5) and (6) of s. 251 of the Criminal Code are substantially the same as those involving the Canadian Bill of Rights. It has been alleged that a foetus is a person and therefore falls within the definition of “everyone” as this term is utilized, in particular, in s.7 of the Charter, and that foetuses have been deprived of the rights guaranteed by s. 7, which states:
“7. 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.”
It has also been alleged that abortions, from the aspect of the foetus, constitute cruel and unusual punishment or treatment, contrary to s. 12 of the Charter; that the foetus is denied the right to an interpreter, guaranteed by s.14; and that the legalized abortion procedures deny the foetus the right to equality before the law guaranteed by s. 15(1). The latter assertion was not seriously pursued by virtue of the fact that s. 15 will not come into force until April 17, 1985; s. 32(2). In addition, little consideration will be given to the allegation that a foetus has been denied the right to an interpreter at a meeting of the members of a therapeutic abortion committee, because s. 14 of the Charter apparently contemplates that an individual be entitled to fully comprehend proceedings which may affect such individual’s life, liberty or security of his or her person, and there was not even a suggestion that the provision of some kind of interpreter would enable a foetus to fully comprehend the proceedings of a therapeutic abortion committee.
The Interim presentation of The Regina Decision will be completed in the December issue.
