R. v. Morgentaler,

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Beetz and de Grandpré, JJ.
• Citation: (1975), 4 N.R. 277 (SCC),4 NR 277,[1975] ACS no 48,AZ-76111048,1975 CanLII 8 (SCC),20 CCC (2d) 449,53 DLR (3d) 161,[1975] SCJ No 48 (QL),[1976] 1 SCR 616
• Court: Supreme Court (Canada)
• Date: 26 March 1975

R. v. Morgentaler (1975), 4 N.R. 277 (SCC)

MLB headnote and full text

R. v. Morgentaler

Indexed As: R. v. Morgentaler

Supreme Court of Canada

Laskin, C.J.C., Martland, Judson,

Ritchie, Spence, Pigeon, Dickson,

Beetz and de Grandpré, JJ.

March 26, 1975.

Summary:

This case arose out of a charge of procuring a miscarriage of a female person contrary to s. 251 of the Criminal Code. The accused admitted performing the abortion but raised the defence of necessity and the defence provided by s. 45 of the Criminal Code. The trial judge held that the defence of necessity and the defence provided by s. 45 of the Criminal Code were both available to the accused and the trial judge charged the jury to that effect. The jury returned a verdict of not guilty.

On appeal to the Quebec Court of Appeal the appeal was allowed, the jury verdict was set aside and the Quebec Court of Appeal convicted the accused. The Quebec Court of Appeal held that both the defences referred above should not have been left to the jury.

On appeal to the Supreme Court of Canada the appeal was dismissed and the judgment of the Quebec Court of Appeal was affirmed. The Supreme Court of Canada held that s. 45 of the Criminal Code did not protect the accused on a charge of procuring a miscarriage of a female person - see paragraphs 12 to 15 and 40. The Supreme Court of Canada held that there was no evidence of urgent necessity which might justify a violation of the criminal law - see paragraphs 9 to 11 and 41 to 43.

Laskin, C.J.C., Judson and Spence, JJ., dissenting, in the Supreme Court of Canada, would have allowed the appeal, would have set aside the judgment of the Quebec Court of Appeal, and would have restored the jury verdict's of acquittal. Laskin, C.J.C., Judson and Spence, JJ., stated that there was evidence to go to the jury with respect to both the defences referred to above.

Criminal Law - Topic 4357

Procedure - Charge or directions to a jury - Directions respecting defences - The Supreme Court of Canada stated a trial judge does not have to put a defence to a jury where there is no evidence to support the defence - See paragraph 11.

Criminal Law - Topic 203

General principles - Common law defences - Necessity - Abortion - Charge of procuring a miscarriage of a female person - The accused, a medical doctor, performed an abortion on a 26 year old unmarried female after the accused doctor assessed the necessity of an abortion by reference to her state of mental and physical health - See paragraphs 75 and 76 - The Supreme Court of Canada held that there was no evidence of urgent necessity which might justify a violation of the criminal law - See paragraphs 9 to 11, 41 to 43 and 100 to 104.

Criminal Law - Topic 224

General principles - Statutory defences - Protection from criminal responsibility for the performance of a surgical operation - Criminal Code, s. 45 - Abortion - Charge of procuring a miscarriage of a female person - The Supreme Court of Canada held that s. 45 of the Criminal Code did not apply to protect the accused on a charge of procuring a miscarriage of a female person - See paragraphs 12 to 15, 40 and 83 to 89.

Criminal Law - Topic 4975

Appeals - Indictable offences - Powers of a Court of Appeal on an appeal from an acquittal by a jury - Abortion - Charge of procuring a miscarriage of a female person - Criminal Code, s. 613(4) - The Supreme Court of Canada held that a Court of Appeal had the power to enter a verdict of guilty on an appeal from an acquittal by a jury - See paragraphs 17 to 33 and 47.

Criminal Law - Topic 203

General principles - Common law defences - Necessity - The Supreme Court of Canada reviewed the law of necessity as a defence to a criminal charge - See paragraphs 41 to 44 - The Supreme Court of Canada stated that if a defence of necessity does exist it may justify non-compliance in urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible - See paragraph 41.

Constitutional Law - Topic 6493

Enumeration in s. 91 of the British North America Act - Criminal law - Criminal law power respecting particular matters - Abortion - The Supreme Court of Canada stated that s. 251 of the Criminal Code respecting abortion was a valid exercise of the criminal law power by the Parliament of Canada - See paragraphs 52 to 57.

Courts - Topic 103

Stare decisis - American cases - The Supreme Court of Canada stated that American cases may be persuasive depending upon their context - See paragraph 60.

Civil Rights - Topic 8005

Canadian Bill of Rights - General principles of operation and interpretation - Due process of law - Right to life, liberty, security and enjoyment of property - The Supreme Court of Canada stated that s. 251 (abortion) of the Criminal Code is not in conflict with s. 1(a) of the Canadian Bill of Rights - The Supreme Court of Canada stated that "due process" need not be confined to procedural matters - See paragraph 66.

Civil Rights - Topic 8007

Canadian Bill of Rights - General principles of operation and interpretation - Equality before the law - Abortion, uneven and unequal operation of therapeutic abortion committees - The Supreme Court of Canada stated that s. 1(b) of the Canadian Bill of Rights did not charge the courts with supervising the administrative efficiency of legislation - See paragraph 71 - The Supreme Court of Canada stated that any unevenness in the administration of a statute is for parliament to correct - See paragraph 72.

Criminal Law - Topic 4262

Procedure - Indictment - Preferring of an indictment - An indictment was preferred by the Attorney General of Quebec who personally signed the indictment - The Supreme Court of Canada stated that such a method of bringing an accused person to trial was not contrary to the Canadian Bill of Rights - See paragraphs 73 and 74.

Words and Phrases

Due process of law - The Supreme Court of Canada discussed the meaning of the phrase "due process of law" as found in s. 1(a) of the Canadian Bill of Rights, R.S.C. 1970 - See paragraphs 63 to 66.

Cases Noticed:

Parnerkar v. The Queen, [1974] S.C.R. 449, folld. [para. 11].

R. v. Bourne, [1939] 1 K.B. 687, dist. [para. 15]; folld. [paras. 41, 90].

Belyea v. The King, [1932] S.C.R. 279, folld. [para. 23].

Ciglen v. The Queen, [1970] S.C.R. 804, folld. [para. 29].

Wild v. The Queen, [1971] S.C.R. 101, folld. [para. 29].

R. v. Heyes, [1951] 1 K.B. 29, folld. [para. 30].

R. v. Hancock (1931), 100 L.J.K.B. 419, folld. [para. 30].

Savard and Lizotte v. The King, [1946] S.C.R. 20, folld. [paras. 32, 81].

U.S. v. Holmes (1842), 26 F. Cas 36, folld. [para. 41].

R. v. Dudley and Stephens (1884), 14 Q.B.D. 273, folld. [paras. 41, 101].

Gregson v. Gilbert (1783), 3 Dougl. 232, folld. [para. 41].

Mouse's case (1609), 12 Co. Rep. 63, folld. [para. 41].

Southwark London Borough Council v. Williams, [1971] 1 Ch. 734, folld. [para. 41].

Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1; [1951] A.C. 179, folld. [paras. 53, 56].

Roe v. Wade (1973), 410 U.S. 113, dist. [para. 55].

Doe v. Bolton (1973), 410 U.S. 179, dist. [para. 55].

Curr v. The Queen, [1972] S.C.R. 889, folld. [para. 64].

The People v. Barksdale (1972), 503 P.2d 257, folld. [para. 64].

Smythe v. The Queen, [1971] S.C.R. 680, folld. [para. 74].

R. v. Newton and Stungo, [1958] Cr. L.R. 469, folld. [para. 92].

Re McCready (1909), 14 C.C.C. 481, folld. [para. 93].

R. v. Morgentaler (No. 4) (1973), 14 C.C.C.(2d) 455, refd to. [para. 97].

R. v. Morgentaler (No. 5) (1973), 14 C.C.C.(2d) 459, refd to. [para. 98].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1970, Appendix III, sect. 1(b), sect. 2(b), sect. 2(e) [para. 58].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 45 [para. 3]; sect. 251 [para. 2]; sect. 507(3) [para. 73]; sect. 613(4) [para. 17]; sect. 618(2) [para. 37].

British North America Act, 1867, sect. 91(27) [paras. 53-57].

Counsel:

Claude A. Sheppard, Charles E. Flam and Y. Bolduc, for the appellant;

Louis Guy Robichaud, Q.C., for the respondent;

John Scollin, Q.C. and G.F. Pinos, for the Attorney General of Canada;

Clayton Ruby, for the Foundation for Women in Crisis;

Edward Greenspan, for the Canadian Civil Liberties Association;

B. Finlay, for the Alliance for Life;

E. Colas, Q.C., for the Association des medecins du Quebec and the Front Commun pour le Respect de la Vie;

James O'Reilly, for the Foundation pour la Vie.

This appeal was heard by the Supreme Court of Canada on October 2, 3, 4 and 7, 1974. Judgment was delivered by the Supreme Court of Canada on March 26, 1975 and the following opinions were filed:

PIGEON, J. - see paragraphs 1 to 35.

DICKSON, J. - see paragraphs 36 to 48.

LASKIN, C.J.C. - see paragraphs 49 to 106.

MARTLAND, RITCHIE, BEETZ and de GRANDPRE, JJ., concurred with both PIGEON and DICKSON, JJ.

JUDSON and SPENCE, JJ., concurred with LASKIN, J.