Reflections on Dobbs, part 6: an excursus on abortion in Canada

As in many things, Canada and the United States differ with respect to abortion policy. As noted earlier, unlike the US, Canada has a unified Criminal Code for the entire country. For the first century after Confederation, abortion was banned as a criminal offence. Under Pierre Trudeau's Criminal Law Amendment Act, 1968-69, also known as the "Omnibus Bill," abortion was allowed under certain circumstances, provided it was performed in hospital under the supervision of a therapeutic abortion committee. If the life or health of the mother was at stake, the three-physician committee was authorized to approve it. In 1970, this provision was numbered section 251 of the Criminal Code, the first two subsections of which read as follows:

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.

All of this took place during what might be called Canada's ancien régime, that is, during the years before the country's constitution was patriated in 1982. Prior to that time, Canada's principal constitutional document was the British North America Act of 1867, which was not a constitution at all but simply a statute of the Parliament of the United Kingdom, to which Canada's Parliament was technically still subordinate. This changed in 1982, when Pierre Trudeau's government succeeded in adapting the former BNA Act into the Constitution Act, 1867 while adding a Constitution Act, 1982, consisting primarily of a new Charter of Rights and Freedoms, along with procedures for amendment. 

Unlike the former BNA Act, the validity of the Constitution Acts was home-grown, rooted in Canada's status as an independent nation state. Among other things, patriation changed the status of previously enacted laws. While the British doctrine of parliamentary sovereignty was never fully applicable to Canada's parliament due to the federal division of powers, it had now been largely replaced by a constitutional supremacy similar to that found in Article VI of the US Constitution. As in the US and other countries, this empowered the courts to act as referees under the constitution, authorized to weigh the validity of statutes according to constitutional criteria. This new regime altered the status of Canada's Supreme Court, which had been established in 1875 under section 101 of the former BNA Act. Rather than being kept busy by a plethora of civil cases with an automatic right of appeal, the Court was now elevated to the position of supreme arbiter of the country's constitution acts.

On 28 January 1988, the Supreme Court of Canada handed down a ruling in R v Morgentaler (also known as Morgentaler v the Queen) invalidating section 251 of the Criminal Code. Dr. Henry Morgentaler was a physician and abortion rights activist who performed abortions at his clinics in Toronto and Winnipeg. In so doing he ran afoul of the law on more than one occasion during the 1970s and 80s. One of these cases finally reached the Supreme Court, which ruled in his favour, thereby altering the legal status of abortion in Canada. The case was decided based on the new Charter of Rights and Freedoms, especially section 7, which guarantees everyone "the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." 

Yet, unlike Roe, Morgentaler was a narrow decision, with the concurring justices writing different opinions, none of which secured a majority of the seven justices hearing the case. As a consequence, the Court found no indefeasible right to an abortion by a pregnant woman. In fact, one of the justices explicitly identified what he saw as a flaw in Roe:

In Roe [Roe v. Wade 410 U.S. 113 (1973)], the Court held that although the State had an important and legitimate interest in protecting potential life, that interest could not become compelling until the point at which the fetus was viable. The difficulty with this analysis is clear: potential life is no less potential in the first weeks of pregnancy than it is at viability or afterward. At any stage in pregnancy, there is the potential for human life. Although the Court refused to "resolve the difficult question of when life begins," id., at 159, the Court chose the point of viability -- when the foetus is capable of life independent of its mother -- to permit the complete proscription of abortion. The choice of viability as the point at which state interest in potential life becomes compelling is no less arbitrary than choosing any point before viability or any point afterward. Accordingly, I believe that the State's interest in protecting potential human life exists throughout the pregnancy.

While striking down section 251, the Supreme Court of Canada left intact the authority of Parliament to enact another statute regulating abortion that would rectify the defects of the invalidated statute. Accordingly, the Conservative government of Prime Minister Brian Mulroney twice tabled legislation to address abortion, the second of which, C-43, died in the Senate on third reading in 1991, a rare occurrence in Canada's appointive upper chamber. By convention, normal party discipline is relaxed when divisive moral issues are brought before Parliament, or at least this was the case at the time. With Senators voting according to their respective consciences, they were at that moment not expected to defer to the Commons and the government of the day. Hence defeat in the Senate could not, and in any case would not, bring down Mulroney's government.

However, it did leave a legal vacuum with respect to abortion, with successive governments afraid to address the issue at all. Unlike other western countries, the status of the foetus remains legally unprotected from conception to birth, although in practice only one third of hospitals in Canada actually perform abortions, with the remainder done at specialized clinics. No province provides abortion beyond the gestational limit of 23 weeks and six days (Ontario, Québec, and British Columbia). The territory of Nunavut does not perform abortions beyond 12 weeks, with the other provinces and territories ranged between these two stages. This means that, while abortion is in principle legal in Canada, availability remains something of a patchwork depending on which province or territory one lives in.

I will conclude by citing two paragraphs from R. v Morgentaler that bear on the status of judicial review in Canada:

The power of judicial review of legislation, although given greater scope under the Charter, is not unlimited. The courts must confine themselves to such democratic values as are clearly expressed in the Charter and refrain from imposing or creating rights with no identifiable base in the Charter. The Court is not entitled to define a right in a manner unrelated to the interest that the right in question was meant to protect . . .

Before the adoption of the Charter, there was little question of the limits of judicial review of the criminal law. For all practical purposes it was limited to a determination of whether the impugned enactment dealt with a subject which could fall within the criminal law power in s. 91(27) of the Constitution Act, 1867. There was no doubt of the power of Parliament to say what was and what was not criminal and to prohibit criminal conduct with penal sanctions, although from 1960 onwards legislation was subject to review under the Canadian Bill of Rights . . . . The adoption of the Charter brought a significant change. The power of judicial review of legislation acquired greater scope but, in my view, that scope is not unlimited and should be carefully confined to that which is ordained by the Charter. I am well aware that there will be disagreement about what was ordained by the Charter and, of course, a measure of interpretation of the Charter will be required in order to give substance and reality to its provisions. But the courts must not, in the guise of interpretation, postulate rights and freedoms which do not have a firm and a reasonably identifiable base in the Charter.

Here the conflict between judicial activism and judicial restraint has been less evident than in the United States. In Canada, moreover, Parliament plays no role in confirming judicial appointments or even in vetting prospective judges. Instead, the Prime Minister, with the input of the Justice Department, advises the Queen's representative, the Governor General, whom to appoint to the section 96 and 101 courts. Canadians seem less invested in the composition of their courts than Americans are, because they are viewed as less political. 

But if the courts were to take on a more activist role, some of the controversy Americans have known for generations could spill over into Canada. Although there is already some evidence of this activism in Canadian courts, thus far it has not elicited the same level of controversy as in the United States, and the courts have generally exercised restraint, as seen, for example, in comparing Reference re Same-Sex Marriage (2004) with its American counterpart, Obergefell v Hodges (2015). Accordingly, while the social and cultural divisions in the United States are to some extent present in Canada, the courts here, in my view, have been more careful not to aggravate them.

Previous: Reflections on Dobbs, part 1: creating and overturning precedents 

Reflections on Dobbs, part 2: 'rights talk' and partisan polarization 

Reflections on Dobbs, part 3: Planned Parenthood v Casey

Reflections on Dobbs, part 4: the Court's reasoning

Reflections on Dobbs, part 5: was it rightly decided?