R. v. Morgentaler, 1988 CanLII 92 (SCC)

JudgeDickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson and La Forest, JJ.
CourtSupreme Court (Canada)
Case DateJanuary 28, 1988
JurisdictionCanada (Federal)
Citations1988 CanLII 92 (SCC);37 CCC (3d) 449;84 NR 80;82 NR 1;[1988] SCJ No 3 (QL);(1988), 82 N.R. 1 (SCC);[1988] 1 SCR 30;62 CR (3d) 1;JE 88-220;1988 CanLII 90 (SCC);[1988] SCJ No 1 (QL);44 DLR (4th) 385;63 OR (2d) 281;[1988] 1 SCR 212;26 OAC 1;3 WCB (2d) 332;31 CRR 1

R. v. Morgentaler (1988), 82 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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R. v. Henry Morgentaler, Leslie Frank Smoling and Robert Scott

(19556)

Indexed As: R. v. Morgentaler

Supreme Court of Canada

Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson and La Forest, JJ.

January 28, 1988.

Summary:

Three doctors set up a clinic in Toronto to perform abortions upon women who had not obtained a certificate from a therapeutic abortion committee of an accredited or approved hospital as required by s. 251(4) of the Criminal Code. The doctors were charged with conspiracy to procure miscarriages contrary to ss. 251 and 423(1)(d) of the Criminal Code. The doctors applied to quash the charge or stay the proceedings on the ground that s. 251 was ultra vires the Parliament of Canada, infringed ss. 2(a), 7 and 12 of the Charter and was inconsistent with s. 1(b) of the Canadian Bill of Rights. The trial judge dismissed the application. The doctors appealed. The Attorney General of Ontario applied to quash the appeal.

The Ontario Court of Appeal, in a judgment reported 6 O.A.C. 53, allowed the application and quashed the appeal. The doctors were then tried before a judge and jury and were acquitted. The Crown appealed; the doctors cross-appealed.

The Ontario Court of Appeal, in a judgment reported 11 O.A.C. 81; 52 O.R.(2d) 353; 22 D.L.R.(4th) 641; 22 C.C.C.(3d) 353; 48 C.R.(3d) 1; 17 C.R.R. 223, allowed the appeal, set aside the verdict of acquittal and ordered a new trial. The doctors appealed to the Supreme Court of Canada. The court stated the following constitutional questions: 1. Does s. 251 of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms? 2. If s. 251 of the Criminal Code of Canada infringes or denies the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms, is s. 251 justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982? 3. Is s. 251 of the Criminal Code of Canada ultra vires the Parliament of Canada? 4. Does s. 251 of the Criminal Code of Canada violate s. 96 of the Constitution Act, 1867? 5. Does s. 251 of the Criminal Code of Canada unlawfully delegate federal criminal power to provincial Ministers of Health or Therapeutic Abortion Committees, and in doing so, has the Federal Government abdicated its authority in this area? 6. Do ss. 605 and 610(3) of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by ss. 7, 11(d), 11(f), 11(h) and 24(1) of the Canadian Charter of Rights and Freedoms? 7. If ss. 605 and 610(3) of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by ss. 7, 11(d), 11(f), 11(h) and 24(1) of the Canadian Charter of Rights and Freedoms, are ss. 605 and 610(3) justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982? The Supreme Court of Canada, McIntyre and La Forest, JJ., dissenting, allowed the appeal. The court held, for differing reasons, that s. 251 of the Criminal Code violated a pregnant woman's right to security of the person under s. 7 of the Charter; that such violation was not in accordance with the principles of fundamental justice; that s. 251 was not a reasonable limit prescribed by law under s. 1 of the Charter; that s. 251 was not ultra vires Parliament; that s. 251 did not violate s. 96 of the Constitution Act; and that s. 251 was not an unlawful delegation of the criminal law power.

Civil Rights - Topic 388

Freedom of conscience and religion - Infringement of - Abortion legislation - Section 251 of the Criminal Code made it an offence for a pregnant woman to obtain an abortion except where the requirements of s. 251(4) were satisfied - In the Supreme Court of Canada, McIntyre, J. (La Forest, J., concurring), adopted the reasons of the Ontario Court of Appeal to find that s. 251 did not violate the freedom of conscience and religion under s. 2(a) of the Charter of Rights and Freedoms - Wilson, J., stated that the decision to have an abortion was a matter of personal conscience - State interference in a woman's right to decide by imposing criminal sanctions violated a pregnant woman's freedom of conscience - Wilson, J., also stated that conscientious beliefs that were not religiously motivated were equally protected - Dickson, C.J.C., Beetz, Estey and Lamer, JJ., expressed no opinion on this issue - See paragraphs 212 to 218, 253.

Civil Rights - Topic 781

Liberty - Particular rights - Abortion - In the Supreme Court of Canada, Wilson, J., stated that the right to liberty under s. 7 of the Charter of Rights and Freedoms guarantees to every individual a degree of personal autonomy over important decisions intimately affecting their private lives; therefore the right to liberty gives a pregnant woman the right to decide whether or not to have an abortion and s. 251 of the Criminal Code violates that right - McIntyre, J. (La Forest, J., concurring), did not discuss the right to liberty specifically, but did state that the Charter provided no constitutional right to have an abortion - Dickson, C.J.C., Beetz, Estey and Lamer, JJ., expressed no opinion on the issue - See paragraphs 188 to 206, 236 to 243.

Civil Rights - Topic 1395

Security of the person - Health care - Abortion legislation - Section 251 of the Criminal Code made abortions unlawful except where, inter alia, a certificate was obtained from a therapeutic abortion committee of an approved or accredited hospital stating that a continued pregnancy endangered the woman's life or health - The Supreme Court of Canada, McIntyre and La Forest, JJ., dissenting, held that s. 251 violated a pregnant woman's right to security of the person under s. 7 of the Canadian Charter of Rights and Freedoms - Dickson, C.J.C. (Lamer, J., concurring), stated that state interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, breached the right to security of the person - Additionally, s. 251 breached s. 7 to the extent that it denied women abortions unless they met criteria entirely unrelated to their own priorities and aspirations - Dickson, C.J.C., also stated that delays in complying with the mandatory procedures of s. 251 increased physical and psychological risks and therefore violated s. 7 - Beetz, J. (Estey, J., concurring), held that insofar as s. 251 frustrated the obtaining of effective and timely medical treatment where the woman's life or health was endangered it violated s. 7 - Beetz, J., agreed that the procedural delays built into s. 251 violated s. 7 - Wilson, J., agreed that pregnant women were exposed to a threat to their physical and psychological security under the legislative scheme set up in s. 251 - McIntyre, J. (La Forest, J., concurring), stated that where there was no right to an abortion at common law, by custom or under the Charter, s. 251 could not violate any Charter rights - See paragraphs 14 to 33, 83 to 119, 208, 236 to 243.

Civil Rights - Topic 3830

Cruel and unusual treatment or punishment - What constitutes - Circumstances not constituting - Abortion legislation - Section 251 of the Criminal Code made it an offence for a woman to obtain or for a doctor to perform an abortion, except where the requirements of s. 251(4) were satisfied - In the Supreme Court of Canada, McIntyre, J. (La Forest, J., concurring), stated that for the reasons expressed by the Ontario Court of Appeal s. 251 did not constitute cruel and unusual treatment or punishment respecting the woman or the doctor - Dickson, C.J.C., Beetz, Estey, Lamer and Wilson, JJ., expressed no opinion on the issue - See paragraph 254.

Civil Rights - Topic 5544

Equality and protection of the law - Denial of - What constitutes - Unequal administration of law - Section 251 of the Criminal Code made it an offence to obtain or perform an abortion except where the requirements of s. 251 (4) were satisfied - In the Supreme Court of Canada, McIntyre, J. (La Forest, J., concurring), agreed with the Court of Appeal that s. 251 did not violate equality rights under s. 15 of the Charter of Rights and Freedoms - Dickson, C.J.C., Beetz, Estey, Lamer and Wilson, JJ., expressed no opinion on the issue - See paragraph 252.

Civil Rights - Topic 8305

Canadian Charter of Rights and Freedoms - Application - Persons protected - "Everyone" - Section 7 of the Charter provided that "everyone" had the right to life, liberty and security of the person - In the Supreme Court of Canada, Beetz, J. (Estey, J., concurring), and Wilson, J., both raised, without deciding, the issue as to whether a foetus was included in the word "everyone", thereby entitling the foetus to the protection of the Charter - See paragraphs 171, 226.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice - Section 251 of the Criminal Code made abortions unlawful except where, inter alia, a woman obtained a certificate from a therapeutic abortion committee of an approved or accredited hospital that stated that her continued pregnancy endangered her life or health - The Supreme Court of Canada, McIntyre and La Forest, JJ., dissenting, held that s. 251 violated the right to security of the person under s. 7 of the Charter and that such violation was not in accordance with the principles of fundamental justice - Dickson, C.J.C. (Lamer, J., concurring), held that the s. 251 procedure regulating access to therapeutic abortions was manifestly unfair; that there were so many barriers built into s. 251 that the defence it created often became unavailable to women who prima facie qualified for the defence, or at least forced such women to travel great distances at substantial expense and inconvenience in order to benefit from a defence that was held out to be generally available - Beetz, J. (Estey, J., concurring), held that although some independent medical opinion and some delay accorded with the principles of fundamental justice, the administrative structure of s. 251 contained so many unnecessary rules resulting in increased risks to women that s. 251 as a whole was manifestly unfair and not in accordance with the principles of fundamental justice - Wilson, J., agreed that procedural problems with s. 251 deprived rights not in accordance with the principles of fundamental justice - Wilson, J., also stated that the deprivation of a s. 7 right that also infringed other Charter rights could not be in accordance with the principles of fundamental justice - See paragraphs 34 to 51, 83 to 119, 210.

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Principles of fundamental justice - [See Civil Rights - Topic 8344 above].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - The Supreme Court of Canada stated that legislation infringing Charter rights would constitute a reasonable limit prescribed by law only where (1) the objective of the legislation was of sufficient importance to warrant over riding a constitutionally protected right and (2) the means chosen were reasonable and demonstrably justified (proportionality test) - The court stated that the proportionality test was satisfied where (1) the means were rational, fair and not arbitrary, (2) they impaired as little as possible on the right or freedom being infringed and (3) the effect of the infringing legislation was not out of proportion to the objective sought - See paragraphs 52, 155, 219.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - The Supreme Court of Canada held that s. 251 of the Criminal Code violated the right to security of the person in s. 7 of the Charter and that s. 251 was not a reasonable limit prescribed by law, because it failed the proportionality test - Dickson, C.J.C. (Lamer, J., concurring), Beetz, J. (Estey, J., concurring), and Wilson, J., agreed that the objective of s. 251 was sufficiently important to override the right to security of the person - Dickson, C.J.C., stated that the objective was to balance the competing interests of the life and health of pregnant women and the protection of foetal interests - Beetz, J., stated that the primary objective was the protection of the foetus; that protection of pregnant women was an ancillary objective - Wilson, J., agreed with Beetz, J. - Dickson, C.J.C., held that s. 251 was not a reasonable limit because it failed the proportionality test, where the procedure in s. 251 was unfair and arbitrary, it was out of proportion to the objective sought and the cumbersome procedure frustrated rather than furthered the objective - Beetz, J., held that certain procedural requirements in s. 251 were unnecessary to the objective, therefore it was not a reasonable limit - Wilson, J., held that since s. 251 took away a woman's decision to have an abortion at all stages of pregnancy, it constituted a complete denial of rights, rather than a mere limitation, and was therefore not a reasonable limit - See paragraphs 54 to 57, 154 to 171, 219 to 226.

Civil Rights - Topic 8404

Canadian Charter of Rights and Freedoms - Criminal proceedings - Double jeopardy - Section 11(h) of the Charter protected accused who were "finally acquitted" from being retried and accused who were "finally found guilty and punished" from being punished again - Accused acquitted of an indictable offence submitted that s. 605 (1)(a) of the Criminal Code, which gave the Crown a right of appeal against acquittal in a trial court on any ground involving a question of law alone, violated s. 11(h) - The Supreme Court of Canada held that there was no merit in the submission, because "finally acquitted" and "finally found guilty and punished" must mean "after the appellate procedures have been completed" - See paragraphs 64, 176, 227, 251.

Civil Rights - Topic 8461

Canadian Charter of Rights and Freedoms - Interpretation - General - In the Supreme Court of Canada, Dickson, C.J.C. (Lamer, J., concurring), stated that "although no doubt it is still fair to say that courts are not the appropriate forum for articulating complex and controversial programmes of public policy, Canadian courts are now charged with the crucial obligation of ensuring that the legislative initiatives pursued by our Parliament and legislatures conform to the democratic values expressed in the Canadian Charter of Rights and Freedoms" - McIntyre, J. (La Forest, J., concurring), agreed that judicial review of the criminal law acquired greater scope with the Charter, but cautioned that the courts must not, in the guise of interpretation, postulate rights and freedoms which do not have a firm and reasonably identifiable base in the Charter - See paragraphs 3, 233.

Civil Rights - Topic 8462

Canadian Charter of Rights and Freedoms - Interpretation - Purposive test - In the Supreme Court of Canada, Dickson, C.J.C. (Lamer, J., concurring), stated that "the goal of Charter interpretation is to secure for all people 'the full benefit of the Charter's protection' ... To attain that goal, this court has held consistently that the proper technique for the interpretation of Charter provisions is to pursue a 'purposive' analysis of the right guaranteed. A right recognized in the Charter is 'to be understood, in other words, in the light of the interests it was meant to protect'" - See paragraph 10.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - The Supreme Court of Canada stated that "life", "liberty" and "security of the person" were independent interests, each of which were to be given independent significance - See paragraphs 11, 81, 187.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - Section 251 of the Criminal Code, which made abortions unlawful except in certain circumstances, was challenged as being contrary to the right to security of the person under s. 7 of the Charter - In the Supreme Court of Canada, Dickson, C.J.C., stated that "it is neither necessary nor wise in this appeal to explore the broadest implications of s. 7 ... I do not think it would be appropriate to attempt an all encompassing explication of so important a provision of s. 7 so early in the history of Charter interpretation. The court should be presented with a wide variety of claims and factual situations before articulating the full range of s. 7 rights." - See paragraph 9.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - In the Supreme Court of Canada, Beetz, J. (Estey, J., concurring), agreed with the Ontario Court of Appeal that it would place too narrow an interpretation on s. 7 to limit it to protection against arbitrary arrest and detention - See paragraph 82.

Civil Rights - Topic 8556

Canadian Charter of Rights and Freedoms - Interpretation - Freedom of conscience and religion - [See Civil Rights - Topic 388 above].

Constitutional Law - Topic 603

Powers of Parliament and legislatures - Delegation of power - What constitutes - Section 251 of the Criminal Code made it an offence to obtain or perform an abortion except where the requirements of s. 251(4) were satisfied - The Supreme Court of Canada affirmed that s. 251 did not unlawfully delegate federal criminal power to provincial Ministers of Health or therapeutic abortion committees, nor had Parliament abdicated its authority in this area - See paragraphs 64, 175, 227, 257.

Constitutional Law - Topic 6493

Federal jurisdiction - Constitution Act, s. 91 - Criminal law - Abortion - Section 251 of the Criminal Code made it an offence to obtain or perform an abortion except where the requirements of s. 251(4) were satisfied - Section 251 was challenged as being ultra vires Parliament because it was colourable provincial legislation in relation to health - The Supreme Court of Canada affirmed that s. 251 constituted a proper exercise of Parliament's criminal law power under s. 91(27) of the Constitution Act - See paragraphs 173, 255.

Constitutional Law - Topic 8602

Judicial power - Appointment of judges, s. 96 - Judicial power defined - The Supreme Court of Canada held that s. 251 of the Criminal Code did not give to therapeutic abortion committees judicial powers that were exercised by county, district and superior courts at the time of Confederation - The court stated that the committees exercise medical judgment on a medical question and perform no s. 96 judicial function - See paragraphs 64, 174, 227, 256.

Criminal Law - Topic 220

Statutory defences or exceptions - General - In the Supreme Court of Canada, Dickson, C.J.C. (Lamer, J., concurring), stated that "one of the basic tenets of our system of criminal justice is that when Parliament creates a defence to a criminal charge, the defence should not be illusory or so difficult to attain as to be practically illusory" - See paragraph 46.

Criminal Law - Topic 1456

Offences against person and reputation - Abortion - General - Section 251 of the Criminal Code made abortions unlawful except where, inter alia, a certificate was obtained from a therapeutic abortion committee of an approved or accredited hospital stating that a continued pregnancy endangered the woman's life or health - The Supreme Court of Canada, McIntyre and La Forest, JJ., dissenting, held that s. 251 violated a pregnant woman's right to security of the person under s. 7 of the Canadian Charter of Rights and Freedoms, the violation was not in accordance with the principles of fundamental justice and s. 251 did not impose reasonable limits prescribed by law under s. 1 of the Charter - The court accordingly struck down s. 251 as a whole under s. 52(1) of the Constitution Act.

Criminal Law - Topic 1456

Abortion - General - The Supreme Court of Canada discussed the scope of state intervention in the abortion decision making process - Beetz, J. (Estey, J., concurring) stated that the interest in the life or health of pregnant women takes precedence over the interest in prohibiting abortions, including the interest of the state in protecting the foetus - Beetz, J., stated that assuming, without deciding, the right to liberty gave women the right to an abortion, at some point the state's interest in protecting the foetus would become compelling; from that point on limitations on abortions would be justified - Wilson, J., stated that there were reasonable limits on the right to an abortion depending on the stage of pregnancy - Wilson, J., stated that it was up to Parliament to determine the point in time when the state's interest in protecting the foetus became compelling (probably second trimester), because the value of the foetus as potential life increased as the pregnancy progressed - Dickson, C.J.C. (Lamer, J., concurring), and McIntyre, J. (La Forest, J., concurring), agreed that the issue in the case was whether s. 251 violated Charter rights, and the decision was not intended to solve the abortion issue - See paragraphs 3, 120 to 153, 219 to 226.

Criminal Law - Topic 4329

Procedure - Jury - Verdicts - Duty of jury - Defence counsel advised the jury that it could disregard the law as stated to it by the trial judge - The Supreme Court of Canada affirmed that such an address was improper - The court stated that the judge's role is to state the law; the jury's role is to apply that law to the facts - Although juries have a de facto power to disregard the law, where no reasons are given for their verdict, counsel are not permitted to encourage a jury to ignore the law they do not support or tell the jury that they have a right to do so - See paragraphs 58 to 61, 178, 179, 228, 259.

Criminal Law - Topic 4418

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Respecting law - [See Criminal Law - Topic 4329 above].

Criminal Law - Topic 4828

Appeals - Indictable offences - Right of appeal - By Crown - [See Civil Rights - Topic 8404 above].

Practice - Topic 7343

Costs - Criminal proceedings - Appeals - Indictable offences - Criminal Code, R.S.C. 1970, c. C-34, s. 610(3) - Section 610(3) prohibited the awarding of costs in appeals from indictable offences - Successful appellants claimed s. 610(3) violated their rights under ss. 7, 11(d), 11(f), 11(h) and 15 of the Charter of Rights and Freedoms and that the Supreme Court of Canada had the power to award costs on appeals under s. 24(1) of the Charter - The Supreme Court of Canada held that it was unnecessary to decide the issue, because this was not a case where costs should be awarded even if s. 610 (3) was struck down - See paragraphs 64, 177, 227, 263.

Cases Noticed:

R. v. Morgentaler, [1976] 1 S.C.R. 616; 4 N.R. 277, refd to. [para. 2].

Roe v. Wade (1973), 410 U.S. 113, refd to. [para. 2].

Paton v. United Kingdom (1980), 3 E.H. R.R., refd to. [para. 2].

Abortion Decision of the Federal Constitutional Court - First Senate - of the Federal Republic of Germany (1976), 9 John Marshall J. Prac. and Proc. 605, refd to. [para. 2].

R. v. Big M Drug Mart Ltd., [1985], 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; [1985] 3 W.W.R. 481; 13 C.R.R. 64, refd to. [para. 10].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 27 B.L.R. 297; 33 Alta. L.R.(2d) 193; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 11 D.L.R.(4th) 641, refd to. [para. 10].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; [1985] 4 W.W.R. 286; 18 C.C.C.(3d) 481; 32 M.V.R. 153; 18 D.L.R.(4th) 655, refd to. [para. 10].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 11].

Reference Re s. 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 11].

R. v. Jones, [1986] 2 S.C.R. 284; 69 N.R. 241; 73 A.R. 133, refd to. [para. 11].

R. v. Caddedu (1982), 40 O.R.(2d) 128 (H.C.), refd to. [para. 16].

R. v. Videoflicks Ltd. (1984), 5 O.A.C. 1; 48 O.R.(2d) 395 (C.A.), refd to. [para. 16].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 26 C.C.C.(3d) 481; 2 C.R.R. 76, refd to. [para. 17].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 22 C.C.C.(3d) 321; 26 D.L.R.(4th) 200, refd to. [para. 52].

Joshua v. The Queen, [1955] A.C. 121 (P.C.), refd to. [para. 59].

R. v. Shipley (1784), 4 Dougl. 73; 99 E.R. 774, refd to. [para. 60].

U.S. v. Dougherty (1972), 473 F. 2d 1113, refd to. [para. 61].

Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169; 3 O.A.C. 321, refd to. [para. 82].

Collin v. Lussier, [1983] 1 F.C. 218, refd to. [para. 118].

U.S. v. Vuitch (1971), 402 U.S. 62, refd to. [para. 126].

City of Akron v. Akron Center for Reproductive Health Inc. (1983), 103 S. Ct. 2481, refd to. [para. 135].

R. v. Videoflicks Ltd., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 159].

Schneider v. British Columbia, [1982] 2 S.C.R. 112; 43 N.R. 91, refd to. [para. 161].

R. v. Mezzo, [1986] 1 S.C.R. 802; 68 N.R. 1, refd to. [para. 178].

Meyer v. Nebraska (1923), 262 U.S. 390, refd to. [para. 196].

Pierce v. Society of Sisters (1925), 268 U.S. 510, refd to. [para. 196].

Skinner v. Oklahoma (1942), 316 U.S. 535, refd to. [para. 197].

Griswold v. Connecticut (1965), 381 U.S. 479, refd to. [para. 198].

Eisenstadt v. Baird (1972), 405 U.S. 438, refd to. [para. 198].

Loving v. Virginia (1967), 388 U.S. 1, refd to. [para. 199].

Doe v. Bolton (1973), 410 U.S. 179, refd to. [para. 200].

Thornburgh v. American College of Obstetricians and Gynecologists (1986), 106 S.Ct. 2169, refd to. [para. 202].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 211].

Ferguson v. Skrupka (1963), 372 U.S. 726, refd to. [para. 234].

City of New Orleans v. Dukes (1976), 427 U.S. 297, refd to. [para. 234].

Minnesota v. Clover Leaf Creamery Co. (1981), 449 U.S. 456, refd to. [para. 234].

Hoffman Estates v. Flipside, Hoffman Estates Inc. (1982), 455 U.S. 489, refd to. [para. 234].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 235].

Reynolds v. Sims (1964), 377 U.S. 533, refd to. [para. 235].

Peralta et al. v. Ontario (1985), 7 O.A.C. 283; 49 O.R.(2d) 705 (C.A.), refd to. [para. 257].

Harrison v. University of British Columbia, [1986] 6 W.W.R. 7, refd to. [para. 261].

Statutes Noticed:

Abortion Act 1967, (U.K.), c. 87, sect. 1(1)(a) [para. 134].

Criminal Code, R.S.C. 1970, c. C-34, sect. 251 [paras. 4, 70]; sect. 605(1)(a), sect. 610(3).

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [paras. 4, 154, 219]; sect. 2(a) [para. 212]; sect. 7 [paras. 4, 80, 185].

Civil Code of Lower Canada, art. 19 [para. 14].

Canadian Bill of Rights, R.S.C. 1970, App. III, sect. 1(b) [para. 7].

Constitution Act, 1982, sect. 52(1).

Constitution Act, 1867, sect. 91(27), sect. 92(7), sect. 96.

Criminal Law Amendment Act, S.C. 1968 69, c. 37, sect. 18 [para. 73].

Criminal Law Consolidation Act (Australian Northern Territory), sect. 79A(3)(a) [para. 134].

Criminal Law Consolidation Act (South Australia), 1935-1975, sect. 82a(1)(a).

Criminal Code (West Germany), 1976, sect. 219 [para. 134].

Penal Law (Israel), 5737-1977, sect. 315 [para. 134].

Crimes Act (New Zealand), 1961, sect. 187A(4) [para. 134].

Code penal suisse, art. 120(1) [para. 134].

Code penal (France), art. 317 [para. 169].

Code de la sante publique (France), art. 162-1, art. 162-12 [para. 169].

Authors and Works Noticed:

Whyte, John D., Fundamental Justice: The Scope and Application of Section 7 of the Charter [para. 12].

Garant, Patrice, The Canadian Charter of Rights and Freedoms (1982) [para. 12].

Tarnopolsky, W., and Beaudoin, G.A., The Canadian Charter of Rights and Freedoms: Commentary (1982) [para. 12].

Macdonald, Procedural Due Process in Canadian Constitutional Law (1987), 39 U. Fla. L. Rev. 217, p. 248 [para. 14].

Tyler, Carl W., et al., Second Trimester Induced Abortion in the United States, Case on Appeal, vol. 22, p. 4601 [para. 25].

Cates and Grimes, Deaths from Second Trimester Abortion By Dilation and Evacuation: Causes, Prevention, Facilities (1981), 58 Obs. and Gyn. 401 [para. 26].

Canada, Statistics Canada, Basic Facts on Therapeutic Abortions: 1982 (Minister of Supply and Services, 1983) [para. 41].

Isaacs, Natalie Fochs, Abortion and the Just Society (1970), 5 R.J.T. 27, p. 36 [para. 100].

Canada, Statistics Canada, Therapeutic Abortions 1985 (Minister of Supply and Services, 1986), pp. 12 [para. 102]; 38 [para. 104].

World Health Organization, Abortion Laws in Commonwealth Countries (1979), p. 28 [para. 140].

Canada, Law Reform Commission, Protection of Life Project, Options for Abortion Policy Reform: A Consultation Document (1986), pp. 74 [para. 148]; 76 [para. 149].

Cook, R.J., and Dickens, B., Emerging Issues in Commonwealth Abortion Laws, 1982 [para. 169].

MacCormick, Neil, Legal Right and Social Democracy: Essays in Legal and Political Philosophy, pp. 39, 41 [para. 190].

Tribe, L.H., American Constitutional Law (1978), pp. 924-925 [para. 201].

Burrows, Noreen, International Law and Human Rights: The Case of Women's Rights, in Human Rights: From Rhetoric to Reality, pp. 81-82 [para. 205].

Joad, C.E.M., Guide to the Philosophy of Morals and Politics, pp. 801, 803 [para. 215], 805, 806 [para. 216].

Sumner, L.W., Abortion and Moral Theory (1981), pp. 125-128 [para. 223]; 159 [para. 224].

Isaacs, Stephen L., Reproductive Rights 1983: An International Survey (1982-83), 14 Col. H.R.L. Rev. 311 [para. 224].

Canada, Report of the Committee on the Operation of the Abortion Law, 1977 (Badgley Report), pp. 17 [para. 38]; 20 [para. 44]; 27 [para. 89]; 84 [para. 39]; 91 [para. 96]; 93 [para. 101]; 102 [para. 39]; 105 [paras. 40, 97, 101]; 109 [para. 98]; 146 [paras. 24, 108]; 258, 259 [para. 106]; 308 [para. 113]; 322 [para. 145].

Badgley Report - see Canada, Report of the Committee on the Operation of the Abortion Law, 1977.

Ontario, Report on Therapeutic Abortion Services in Ontario, 1987 (Powell Report), pp. 7 [paras. 24, 48]; 13 [para. 42]; 15 [para. 28]; 21 [paras. 141, 142]; 22 [para. 143]; 23 [paras. 113, 115]; 24 [paras. 41, 102]; 27 [para. 109]; 35 [para. 141]; 36 [para. 26]; 37 [para. 144]; 38 [para. 149].

Powell Report - see Ontario, Report on Therapeutic Abortion Services in Ontario, 1987.

Counsel:

Morris Manning, Q.C., and Paul B. Schabas, for the appellants;

Bonnie J. Wien and W. James Blacklock, for the respondent;

Edward Sojonky, Q.C., and Marilyn Doering Steffen, for the intervenor (Attorney General of Canada).

Solicitors of Record:

Morris Manning, Toronto, Ontario, for the appellants;

Attorney General for Ontario, Toronto, Ontario, for the respondent;

Frank Iacobucci, Ottawa, Ontario, for the intervenor.

This appeal was heard on October 7-10, 1986, before Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson and La Forest, JJ., of the Supreme Court of Canada.

On January 28, 1988, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Dickson, C.J.C. (Lamer, J., concurring) - see paragraphs 1 to 64;

Beetz, J. (Estey, J., concurring) - see paragraphs 65 to 181;

Wilson, J. - see paragraphs 182 to 228;

McIntyre, J. (La Forest, J., concurring), dissenting - see paragraphs 229 to 263.

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727 practice notes
  • R. v. O'Connor, [1995] 4 SCR 411, 29 WCB (2d) 152
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • December 14, 1995
    ...of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 75]. R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1; 44 D.L.R.(4th) 385; 31 C.R.R. 1; 37 C.C.C.(3d) 449; 62 C.R.(3d) 1, refd to. [para. 76]. Board of Regents of State Col......
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    • December 16, 2004
    ...S.C.R. 177; 58 N.R. 1; 17 D.L.R.(4th) 422; 14 C.R.R. 13; 12 Admin. L.R. 137, refd to. [para. 10]. R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1; 44 D.L.R.(4th) 385; 31 C.R.R. 1; 37 C.C.C.(3d) 449; 62 C.R.(3d) 1, refd to. [para. 10]. Sheena B., Re, [1995] 1......
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    • December 23, 2003
    ...groups:  Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at p. 595.  See also R. v. Morgentaler, [1988] 1 S.C.R. 30, at pp. 74-75, in which s. 251  of the Criminal Code  prohibiting abortions except in therapeutic situations was held to h......
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    • December 19, 2002
    ...2 S.C.R. 307, 2000 SCC 44; Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925; R. v. Morgentaler, [1988] 1 S.C.R. 30; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Edwards v. Attorney‑General for Canada, [1930] A.C. 124; Referenc......
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    ...S.C.R. 177; 58 N.R. 1; 17 D.L.R.(4th) 422; 14 C.R.R. 13; 12 Admin. L.R. 137, refd to. [para. 10]. R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1; 44 D.L.R.(4th) 385; 31 C.R.R. 1; 37 C.C.C.(3d) 449; 62 C.R.(3d) 1, refd to. [para. 10]. Sheena B., Re, [1995] 1......
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    ...groups:  Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at p. 595.  See also R. v. Morgentaler, [1988] 1 S.C.R. 30, at pp. 74-75, in which s. 251  of the Criminal Code  prohibiting abortions except in therapeutic situations was held to h......
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    • December 19, 2002
    ...2 S.C.R. 307, 2000 SCC 44; Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925; R. v. Morgentaler, [1988] 1 S.C.R. 30; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Edwards v. Attorney‑General for Canada, [1930] A.C. 124; Referenc......
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