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R v Morgentaler
Transcript of R v Morgentaler
Accused & charged with performing illegal abortions
Doctors believed that women's rights were being violated as well as their own, and for this reason, they appealed to have the charges against them dropped
Charges against the doctors were dropped in 1987
Decision was made on January 28th, 1988 at the Supreme Court of Canada, to strike down the law against abortion (5-2 decision)
Case led to the legalization of abortion in Canada Laws That Apply in the Case Section 251 (4) of the Criminal Code- required that abortions be approved by a therapeutic abortion committee at an accredited or approved hospital & the procedure had to occur there
Also said to have violated provisions of Codes 423 (1)(d) and 251 (1) (intent to procure abortions) Who is Dr.Henry Morgentaler? Born in Poland in 1923 (Turned 90 on the 19th of March)
Moved to Canada in 1950 after surviving the Holocaust
Opened the first abortion clinic in Montreal in 1968 when he was a member of the Canadian Humanist Association
Was instrumental in the legalization of abortion in Canada, which came about 20 years after he first performed an abortion Rights and Freedoms That Apply in the Case 2 (a)- Everyone has the following fundamental freedoms: freedom of conscience and religion
7- Everyone has 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
12- Everyone has the right not to be subjected to any cruel and unusual treatment or punishment
Also sections 15 (Equality Rights), 27 (This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians, and 28 (Notwithstanding anything anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons) Conflict Between the Laws and the Charter of Rights and Freedoms Women's rights were being violated as it took away their right to life and also was seen as a form of punishment/unusual treatment as they weren't in control of their own body (being denied abortions)
Doctors believed that their freedom of conscience was violated (Section 2)
The laws that they were being prosecuted under were too vague, which deprived them of their fundamental justice, stated in section 7
Inconsistencies with the way the law applied to individuals in different provinces (different procedures for abortion in different provinces) Oakes Test There were 7 judges that were involved with this case
5 judges (Dickson (Chief Justice), Lamer, Beetz, Estey, & Wilson) agreed that the law did infringe the rights and freedoms guaranteed by sections 2(a), 7, 12, 15, 27, and 28 in the Charter of Rights and Freedoms
2 judges (McIntyre & La Forest) believed that the law didn't infringe the rights and freedoms
In the end, the Supreme Court of Canada struck down the law against abortion (abortion provision) in the Criminal Code, with a 5-2 decision a)Is the law's goal "pressing and substantial"? 1. Important Objective No
Section 251 breaches the right to security of the person (section 7)
It forces a woman to carry a fetus to term unless she meets certain criteria that are completely unrelated to her own beliefs
Section 251 also breaches Section 2 of the Charter, as it takes away a woman's freedom of conscience (not being able to choose how you want to live your life) 1. Important Objective a)Is the law's goal "pressing and substantial"? Yes
Abortions should only be performed if they are approved (done only in emergency situations)
It is not ethical to end a life just because you feel like it (you shouldn't have the choice as to who lives and who dies) 2. Balancing the Rights of the Individual against the Rights of Society at large a)Was the infringement of the individual's right rationally connected to the law's objective Yes b) Was the individual's infringed right minimally impaired? Yes c) Was the infringement of the right proportional to the law's objective? Yes 2. Balancing the Rights of the Individual against the Rights of Society at large a)Was the infringement of the individual's right rationally connected to the law's objective? Yes b)Was the individual's infringed right minimally impaired? No
Both Sections 2 and 7 of the Charter of Rights and Freedoms are being violated
Women should be able to do what they want to their body, not what the government wants them to do c)Was the infringement of the right proportional to the law's objective? No
One person getting an abortion doesn't affect the rest of society
It should be that person's decision as to whether or not they want an abortion Importance of the Case This case led to the legalization of abortion in Canada, which was a very controversial topic at the time, and remains to be today
The legalization of abortion resolved the issue of infringement of women's rights and freedoms
It also laid the groundwork for the Daigle v. Tremblay case, which found that a fetus has no legal status as a person in Canada
Quiz 1. Who were the people involved in the case? 2. What were they accused of doing? 3. When & where was the decision made? 4. Name 2 rights/freedoms that were infringed 5.What did this case lead to? 6.What was the main that applied to this case? 7. How many judges were involved in the decision? Discussion Questions 1. Do you think the doctors should be punished for performing illegal abortions? 2.Do you think the S.C.C. made the right decision in legalizing abortion?