R. v. Morgentaler

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Brooke, Lacourciere and Tarnopolsky, JJ.A.
• Citation: (1984), 6 O.A.C. 53 (CA),1984 CanLII 55 (ON CA),48 OR (2d) 519,14 DLR (4th) 184,16 CCC (3d) 1,41 CR (3d) 262,14 CRR 107,6 OAC 53
• Date: 29 October 1984

R. v. Morgentaler (1984), 6 O.A.C. 53 (CA)

MLB headnote and full text

R. v. Morgentaler, Smoling and Scott

Indexed As: R. v. Morgentaler

Ontario Court of Appeal

Brooke, Lacourciere and Tarnopolsky, JJ.A.

October 29, 1984.

Summary:

Three doctors were charged with procuring a miscarriage of female persons contrary to s. 251 of the Criminal Code of Canada. Before pleading to the charges the doctors moved to quash the indictment on the grounds, inter alia, that s. 251 was contrary to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights. The trial judge dismissed the motion. The doctors appealed the dismissal of the motion to the Ontario Court of Appeal. The Attorney General for Ontario applied to quash the appeal.

The Ontario Court of Appeal allowed the application and quashed the appeal.

Courts - Topic 7447

Provincial courts - Ontario Court of Appeal - Jurisdiction, constitutional issues - The Ontario Court of Appeal held that s. 52(1) of the Constitution Act does not provide a basis for a right of appeal from an interlocutory motion in a criminal case which raises a constitutional issue - See paragraphs 19 to 21.

Courts - Topic 7445

Provincial courts - Ontario Court of Appeal - Inherent jurisdiction - The Ontario Court of Appeal stated that it had no inherent jurisdiction to entertain an appeal in criminal cases - See paragraph 12.

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction - Court of competent jurisdiction - An accused before plea moved to quash the charge - The motion was dismissed and the accused appealed to the Ontario Court of Appeal - The Ontario Court of Appeal held that s. 24 of the Charter does not provide a basis for a right of appeal from an interlocutory motion for dismissal in a criminal case - See paragraphs 14 to 17.

Words and Phrases

Court of competent jurisdiction - The Ontario Court of Appeal discussed the meaning of the phrase "court of competent jurisdiction" as found in s. 24(1) of the Canadian Charter of Rights and Freedoms - See paragraphs 14 to 17.

Cases Noticed:

R. v. Bird and Peebles (1984), 27 Man.R.(2d) 241, refd to. [para. 7].

Welch v. The King, [1950] S.C.R. 412, refd to. [para. 12].

R. v. Kennedy (1972), 6 C.C.C.(2d) 564, refd to. [para. 13].

R. v. Brooks (1982), 1 C.C.C.(3d) 506, refd to. [para. 16].

R. v. Crate (1983), 7 C.C.C.(3d) 127, refd to. [para. 16].

R. v. Langevin (1984), 3 O.A.C. 110; 45 O.R.(2d) 705, refd to. [para. 17].

R. v. Petrovic (1984), 4 O.A.C. 29, refd to. [para. 17].

R. v. Ritter et al., [1984] 2 W.W.R. 623, refd to. [para. 17].

R. v. Toker and McKinney (1984), 13 C.C.C.(3d) 472; 54 A.R. 97 (A.C.A.), refd to. [para. 17].

R. v. Cranston (1983), 60 N.S.R.(2d) 269; 128 A.P.R. 269 (N.S.C.A.), refd to. [para. 20].

Re Forget v. The Queen (1982), 65 C.C.C.(2d) 373, refd to. [para. 22].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 602 [para. 10]; sect. 603(1) [para. 11].

Constitution Act 1982, sect. 52(1) [para. 14].

Canadian Charter of Rights and Freedoms 1982, sect. 24(1) [para. 14].

Judicature Act, R.S.O. 1980, c. 223, sect. 2, sect. 28 [para. 22].

Counsel:

David Doherty, for the respondent;

Morris Manning, Q.C., for the appellants, Morgentaler, Smoling and Scott;

Charleen Brenzall, for the Attorney General of Canada, intervenants.

This appeal was heard by Brooke, Lacourcière and Tarnopolsky, JJ.A., of the Ontario Court of Appeal on September 13 and 25, 1984.

The decision of the Court of Appeal was delivered by Brooke, J.A., and was released on October 29, 1984.