The decision in the Borowski case is a major one for the abortion issue in Canada. Although the decision by Mr. Justice Matheson was not what we had hoped for, he did make important findings, which will be very helpful for the pro-life movement.
Dr. Morris Schumiatcher writes on the Judgement elsewhere in this issue.
In view of the important findings made by Judge Matheson, we it was important to publish the entire decision The Interim. Because of its length, however, we are presenting it in two parts. The first part deals with the (Diefenbaker) Bill of Rights (1960) and the abortion law: that part of the Judgement appears below, in full.
The Borowski case challenged the abortion law both in terms of the Bill of Rights and the Charter Of Rights. Borowski’s Challenge (his Writ) was issued in 1978, before the Charter was in existence. While the Bill of Rights is, even now, still in effect, it is subject to the Charter, even now, still in effect, it is subject to the Charter, which is the overriding authority.
We will publish the second part of the Judgement, dealing with the new Charter of Rights and the abortion law, in the December issue of The Interim.
Judge Matheson’s ruling on the Charter and the abortion law is significant. He has stated that the Charter cannot be used in a court to change abortion laws: that is a decision for parliament alone. Thus, his ruling effectively blocks Morgentaler’s lawyers from arguing that the present abortion law is unconstitutional.
The Matheson decision has now become a precedent, which all courts of comparable jurisdiction must follow.
Under the Canadian Bill of Rights, parliament is supreme. The courts cannot deal with the substance of the legislation, only with the adequacy of procedural safeguards. This was the basis of the decisions in both the Dehier and Morgentaler cases. It is this position, which Judge Matheson quotes with approval here.