R. v. Morgentaler
| R v Morgentaler | |
|---|---|
|
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| Hearing: October 7–10, 1986 Judgment: January 28, 1988 |
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| Full case name | Dr Henry Morgentaler, Dr Leslie Frank Smoling and Dr Robert Scott v Her Majesty The Queen |
| Citations | [1988] 1 S.C.R. 30, 63 O.R. (2d) 281, 37 C.C.C. (3d) 449, 31 C.R.R. 1, 62 C.R. (3d) 1, 26 O.A.C. 1 |
| Docket No. | 19556 |
| Prior history | Judgment for the Crown in the Court of Appeal for Ontario. |
| Ruling | Appeal allowed, acquittal restored |
| Holding | |
| Section 251 of the Criminal Code violates a woman's right to security of person under section 7 of the Canadian Charter of Rights and Freedoms and cannot be saved under section 1 of the Charter. | |
| Court Membership | |
|
Chief Justice: Brian Dickson Puisne Justices: Jean Beetz, Willard Estey, William McIntyre, Julien Chouinard, Antonio Lamer, Bertha Wilson, Gerald Le Dain, Gérard La Forest |
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| Reasons given | |
| Majority | Dickson C.J. (pp. 45–80), joined by Lamer J. |
| Concurrence | Beetz J. (pp. 80–132), joined by Estey J. |
| Concurrence | Wilson J. (pp. 161–184) |
| Dissent | McIntyre J. (pp. 132–161), joined by La Forest J. |
| Chouinard and Le Dain JJ. took no part in the consideration or decision of the case. | |
R v Morgentaler was a decision of the Supreme Court of Canada which held that the abortion provision in the Criminal Code was unconstitutional, as it violated a woman's right under section 7 of the Canadian Charter of Rights and Freedoms to security of person. Since this ruling, there have been no criminal laws regulating abortion in Canada.
Prior to this ruling, section 251.9 of the Criminal Code, allowed for abortions to be performed solely at accredited hospitals with the proper certification of approval from the hospital's Therapeutic Abortion Committee.
Three doctors, Dr. Henry Morgentaler, Dr. Leslie Frank Smoling and Dr. Robert Scott, set up an abortion clinic in Toronto for the purpose of performing abortions on women who had not received certification from the Therapeutic Abortion Committee, as required under subsection 287(4) of the Criminal Code. In doing so they were attempting to bring public attention to their cause, claiming that a woman should have complete control over the decision on whether to have an abortion.
Morgentaler had previously challenged the abortion law at the Supreme Court in the pre-Charter case of Morgentaler v. The Queen, [1976] 1 S.C.R. 616 in which the Court denied having the judicial authority to strike down the law.
The Court of Appeal for Ontario found in favour of the government. On appeal, the main issue put before the Court was whether section 251 violated section 7 of the Charter. A secondary issue put to the Court was whether the creation of anti-abortion law was ultra vires ("outside the power") of the federal government's authority to create law.
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