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Reproductive Rights and the Charter. Criminal Code of Canada (1968)

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reproductive rights and the charter
Reproductive Rights and the Charter
  • Criminal Code of Canada (1968)
  • 251. (1) Every one who, with intent to procure the miscarriage of a female person, whether or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and is liable to imprisonment for life.
  •      (2) Every female person who, being pregnant, with intent to procure her own miscarriage, uses any means or permits any means to be used for the purpose of carrying out her intention is guilty of an indictable offence and is liable to imprisonment for two years.
  •      (3) In this section, "means" includes (a) the administration of a drug or other noxious thing,
  •      (b) the use of an instrument, and
  •      (c) manipulation of any kind.
  •      (4) Subsections (1) and (2) do not apply to
  •      (a) a qualified medical practitioner, other than a member of a therapeutic abortion committee for any hospital, who in good faith uses in an accredited or approved hospital any means for the purpose of carrying out his intention to procure the miscarriage of a female person, or
  •      (b) a female person who, being pregnant, permits a qualified medical practitioner to use in an accredited or approved hospital any means described in paragraph (a) for the purpose of carrying out her intention to procure her own miscarriage,
  •      if, before the use of those means, the therapeutic abortion committee for that accredited or approved hospital, by a majority of the members of the committee and at a meeting of the committee at which the case of such female person has been reviewed,
  •      (c) has by certificate in writing stated that in its opinion the continuation of the pregnancy of such female person would or would be likely to endanger her life or health, and
  •      (d) has caused a copy of such certificate to be given to the qualified medical practitioner.
morgentaler 1988
Issue: does abortion section of Crim Code (251) violate s. 7?

5 to 2: yes, but 3 different opinions:

Dickson, Lamer: 251 violates sec 7 of person; inadequate procedural safeguards. No Dn of “health.” S1 Obj: “life and health” of preg women. Fails rational connection test.

Beetz, Estey: Violates sec of person; hosp requirement unnecessary; committee too restrictive. “Health” Dn not a problem. S1 Obj: “protection of fetus.” Fails rational connection test.

Wilson: Violates sec of person, and defects substantive. Also, violates “liberty.” No fundamental justice. S.1 Obj: protect fetus. Can’t limit fr of conscience during first trimester.

McIntyre: defer to Parliament (LeDain agrees).

Morgentaler (1988)
borowski 1989
Issue: Does s. 251 violate the rights of the fetus? B. wanted declaration that “everyone” in s. 7 and “every indiv” in s.15 includes the fetus.

Unanimous decision written by Sopinka:

Borowski’s case is moot because s.251 already ruled unconstitutional in Morgentaler. Developed a test for mootness:

is there a live controversy? If not, should court hear case anyway?

Judicial economy

Traditional role of jud.

Issue of standing: Borowski no longer had it

Borowski (1989)
winnipeg child family services 1997
Winnipeg Child & Family Services (1997)
  • Issue: can a judge use a common law remedy to protect a fetus who is endangered?
  • 9 to 7: no. A fetus is not a legal person. Only the legislature can change this.
  • Dissenting judges: Common law out of date; courts must fix it to bring into line with current medical knowledge. The “slippery slope” can be avoided.
tremblay v daigle 1989
Lived together 5 months; separated partly because of Tremblay’s violence

Daigle 18 weeks pregnant; wanted an abortion


-went to Que Sup Ct to request injunction to stop abortion.

Argued fetus is “human being” under Que Ch of HR & Frs, and under Que Civil Code

Judge granted injunction. Conflict bet fetal rts & D’s rights under s. 7 of Charter; fetal rts take precedence

Daigle appealed to Que Ct of Ap & lost.

At 21 weeks pregnant, applied for lv to ap to SCC. SCC hd quickly on Aug 1; granted lv and scheduled hearing for Aug 8

4 intervenors on each side

just after lunch break, D’s lawyer announced D had just had an abortion. Even though moot, wanted ct to continue

Ct continued.

Court announced decision “from the bench” after hearing: Daigle won. Reasons came later

Tremblay v. Daigle (1989)
tremblay v daigle cont d
Decision “of the court.” All 9 judges participated

even though Que civil code provides for the appointment of a “curator” for a fetus, the order can’t take effect unless the fetus is born alive.

A fetus has to be born alive before it can have rights either under the Que Ch of HR, or Canadian Charter

Admittedly, there is room for interpretation, but on a matter so crucial, the Quebec legislature would have been clear if it intended the Que Ch of HR & Frs to apply to fetuses.

Quebec’s AG intervened, but only to argue for the right of provinces to legislate on certain matters related to abortion.

Tremblay lost because the fetus is not clearly covered by the Que Ch of HRs and Frs, and therefore there’s no legal cause for action.

Tremblay v. Daigle (cont’d)