The Interim
January, 2008

On Jan. 28, 1988, the Supreme Court of Canada handed down the most calamitous judgment in Canadian history – R. v. Morgentaler, 1988 SCC. As a result of this ruling, Canada is the only democracy in the world with the ignominious distinction of having no law to protect the life of a baby in the womb at any time during a pregnancy.
There was no legal basis for the 1988 Morgentaler decision. It was an exercise in raw judicial power. The seven judges who took part in the case came up with no fewer than four separate opinions.
On one disastrous point, five of the judges agreed: led by chief justice Brian Dickson and his successor, Mr. Justice Antonio Lamer, they resolved to strike down the few remaining restrictions on abortion which Parliament had retained in Section 251 of the Criminal Code in 1969, on the pretence that the law violated the right to life, liberty and security of the person in Section 7 of the 1982 Canadian Charter of Rights and Freedoms.
In the opinion of Dickson and Lamer, the provisions in Section 251, which required the approval of a lawful abortion by a so-called “therapeutic abortion committee,” were so cumbersome as to violate the Charter right of a pregnant mother to security of the person. In a similar, separate opinion, justices Jean Beetz and Willard Estey contended that Section 251 could not pass muster with the Charter, because it outlawed all abortions in private clinics like those run by Henry Morgentaler.
In yet another separate, concurring opinion, Madam Justice Bertha Wilson went even further: she maintained that Parliament had no constitutional authority to restrict the overwhelming majority of abortions which occur during the first trimester of a pregnancy.
In support of this view, Wilson argued that a fetus is only a “potential life.” Yet, even in 1988, this was a manifestly absurd proposition inasmuch as it was already a well-established scientific fact that human life begins at conception. With reference to the cutoff point during a pregnancy, after which the state could intervene to protect the life of a baby, Wilson opined: “It seems to me that it might fall somewhere in the second trimester.”
In such various ways, the majority of the Court in Morgentaler, 1988, presumed to instruct Parliament on how it should restrict abortion. In a joint dissenting opinion, justices William McIntyre and Gerard La Forest took strong issue with such judicial arrogance. While conceding that the Charter had to some extent extended the function of the courts, they argued that it did not go so far as to “allocate to the courts the responsibility for designing, initiating or directing social or economic policy.”
In particular, McIntyre and La Forest contended that nothing in the Charter mandated unelected judges on the Supreme Court of Canada to define the parameters of an appropriate abortion law for Canadians. “The solution to this question in this country must be left to Parliament,” they insisted. “It is for Parliament to pronounce on, and to direct, social policy. This is not because Parliament can claim all wisdom and knowledge, but simply because Parliament is elected for that purpose in a free democracy and, in addition, has the facilities – the exposure to public opinion and information – as well as the political power to make effective its decisions.”
In taking this stance, McIntyre and La Forest exercised judicial restraint, upheld the separation of legislative and judicial powers and reaffirmed the principles of democratic government. In contrast, the majority of the court usurped the legislative powers of Parliament by striking down Canada’s abortion law.
Today, 20 years and more than two million abortions later, Canada still has no law restricting abortion. While Parliament bears much of the blame for this shameful deficiency in the law, it is clearly the ruling of the Supreme Court of Canada in Morgentaler, 1988, which brought on this continuing national calamity.
Canadians can only wonder when our elected legislators in Parliament will finally summon up the resolve to enact a new law on abortion and exercise their indubitable constitutional authority to curb the lawless excesses of the judicial activists on the Supreme Court of Canada.