Abortion Law in Canada
1980 - 1989

1982: The Canadian Charter of Rights and Freedoms is enshrined in the Canadian Constitution.

The Charter becomes the basis for the Borowski and the Morgentaler challenges. Borowski appeals to the Charter to defend the personhood of the unborn. Morgentaler appeals to the Charter to overturn the 1969 restrictions on abortion.

1978 – 1989: Joseph Borowski’s Challenge

Joseph BorowskiIn September 1978, former Manitoba Highways Minister Joe Borowski argued in the Saskatchewan Court of Queen’s Bench in Regina that exceptions allowing abortion in Section 251 of the Criminal Code contradicted the right to life provisions of the Canadian Bill of Rights. It took five years of court battles leading all the way to the federal Supreme Court before Borowski was able to gain status to represent the unborn in order to challenge the abortion law in Canada.

In May 1983, the Borowski trial in defence of the unborn child opened in Regina. Counsel for Joseph Borowski argued that the rights of the unborn were included implicitly in the Charter already, by proving the humanity of the unborn child. For six weeks, internationally known medical personnel led by Sir William Liley of New Zealand and Professor Jerome Lejeune of France, testified to the nature of the unborn child. At the trial, scientific evidence demonstrating that the unborn child is a human being was uncontested.
"Joseph Borowski and the Trial of the Century," September 30, 1983

On October 3, 1983, Borowski’s claim on behalf of the unborn child was dismissed by the Regina Court. “In a 31-page judgment, the judge concluded that the child in the womb was not a person under law, and ‘not within the scope of the term everyone utilized in the Charter’; therefore, the abortion provisions in the Criminal Code did not contravene the Charter. The odyssey through the appeal courts was about to begin.”(5)

After several delays and an attempt by the federal government to have the case dismissed, the Supreme Court of Canada heard Borowski’s case in October 1988. On March 1989, the court dismissed Borowski’s appeal on the sole basis that his case had been rendered moot when the Supreme Court of Canada had struck down section 251 of the Criminal Code in the January 1988 Morgentaler case.(6) The Court did not assess the scientific and medical evidence on the nature of the unborn child presented in the original trial.

1973 – 1988: Henry Morgentaler challenges Canada’s abortion law

Dr. Henry Morgentaler had been performing illegal abortions since 1968. In 1973, he published a description of his abortion technique in the Journal of the Canadian Medical Association. On March 15, 1973, he publicly announced that he had personally performed over 5,000 abortions in violation of section 251 of The Criminal Code. On May 13, Mother’s Day, CTV broadcast Morgentaler performing an abortion procedure.

In 1973 he was charged with performing an illegal abortion in a freestanding clinic. A jury found him not guilty. On appeal, this decision was set aside and Morgentaler was found guilty. This judgment was upheld by the Supreme Court of Canada in Morgentaler(1) v. The Queen in 1975.(7)

Morgentaler was sentenced to 18 months in jail. After his release from prison in Quebec, he decided to challenge the law in other provinces. Over the next 15 years, he opened and operated private abortion clinics across the country in direct violation of the law.(8)

On November 8, 1984, a Toronto jury acquitted Dr. Morgentaler and co-accused on charges of conspiracy to procure a miscarriage. On October 1 of the following year, the Ontario Court of Appeal set aside the jury’s acquittal and ordered a new trial.
Challenge to the Criminal Code: Morgentaler   (See pp. 3-7)

1988: Abortion Law Struck Down

The case continued to the Supreme Court of Canada, which delivered its landmark decision on January 28, 1988. In a complex 5-2 majority judgment in Morgentaler v. The Queen (2), “Canada’s top Court ruled that the existing federal legislation regulating access to legal abortions, which allowed doctors to provide women with therapeutic abortions under specified ‘medical’ indications and with the approval of a Therapeutic Abortion Committee (TAC), violated a woman’s right to ‘security of the person’ and therefore was unconstitutional.(9)

As a result of the Court’s decision, the current abortion law was no longer in effect. However, the Court did not say that the federal government could not develop a new law that would balance the constitutional protection guaranteed to women under section 7 of the Canadian Charter of Rights and Freedoms with the state’s legitimate interest in protecting the unborn.(10)

July 1988: Six attempts to draft a new abortion law fail

Left without an abortion law following the Supreme Court decision in Morgentaler, the government introduced a motion which would have allowed for a gestational approach to abortion. That motion and five amendments with various approaches to a new abortion law were defeated in the House of Commons in July 1988. The only proposal to come close to passing was introduced by MP Gus Mitges. It called for legal protection of unborn children from the time of conception. The Mitges amendment was narrowly defeated 118 to 105.

July 1989: Tremblay v. Daigle

Jean-Guy Tremblay obtained an injunction from the Quebec Superior Court to prevent his fiancée, Chantal Daigle, from aborting their 20-week unborn child. The Quebec Court of Appeal upheld the injunction recognising that the unborn fetus has rights. Mr. Justice Yves Bernier wrote:
“The child that has been conceived but not born is a reality that must be taken into account . . . It is not an inanimate object, nor the property of anyone, but a living human entity distinct from the mother . . . and has the right to life and protection from those who conceived it.” The decision also recognized the rights of the father.

The case went all the way to the Supreme Court of Canada. The court agreed to hear the case with extraordinary haste because of the urgency of the situation. While hearing the case the court was informed by Ms. Daigle’s lawyer that the abortion had already taken place. Nevertheless, the judges proceeded to make their decision. “Less than two hours later, the chief justice announced that the court had unanimously voted to overturn the injunction and would issue its reasons at a later date."(11)

By denying the possibility of paternal injunctions in the Daigle case, by ruling section 251 unconstitutional in the Morgentaler decision, and dismissing the Borowski effort to establish protection for the unborn in the Charter, the Supreme Court brought Canada to its present situation: the absence of any federal law restricting abortion.(12)
Political consequences of the Court’s abortion decision

(5) Lianne Laurence, Borowski: A Canadian Paradox (Interim Publishing Company, April 2004) p. 312.
(6) David Brown, “Life’s Dominion in Canada: A Legal Survey,” Life and Learning VIII, ed. Joseph W. Koterski, S. J. (Washington, D.C.: University Faculty for Life, 1999) p. 8.
(7) F.L. Morton, Morgentaler v. Borowski: Abortion, the Charter, and the Courts (Toronto: McClelland & Stewart Inc., 1992) chapter 3.
(8) Abortion in Canada, (Wikipedia). http://en.wikipedia.org/wiki/Abortion_in_Canada
(9) Brodie, et al, The Politics of Abortion (Toronto: Oxford University Press, 1992) p. 4.
(10) F.L. Morton, chapter 3.
(11) F.L. Morton, pp. 281 - 282.
(12) William Mathie, “ ‘Shut up!’ he explained: How the effort to keep abortion off the political agenda has shaped politics,” Life and Learning XV, ed. Joseph W. Koterski, S. J. (Washington, D.C.: University Faculty for Life, 2005) pp. 321 - 348.

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