The Trials and Tribulations of Henry Morgentaler

June 24th, 2013 by Meliha Waddell

This blog is written by our law summer student, Ira Marcowitch

Canadian Legal Celebrity: it’s a term not often thrown about. In fact, I may have just made it up. However, were someone to ever fit such a bill, it would undoubtedly be Dr. Henry Morgentaler. A doctor and legal crusader, Morgentaler unfortunately passed away on May 29th. I don’t intend for this to be a lament of Dr. Morgentaler’s life; I don’t believe I could do him justice. Instead I thought I would highlight the ‘legal side’ of a man who seemed to spend a good part of his life litigating his conscience, and the changes that he brought to our criminal justice system.

In 1969, Morgentaler opened his first clinic in Montreal, and applied for special designation to perform abortions to both the provincial and federal governments. Neither was interested, and each said it was the other’s responsibility. Less than a year later, his clinic was raided and Dr. Morgentaler was charged with illegally performing abortions. Between 1973 (when the first charges went to trial) and 1976, he was tried 3 times and each time, the jury refused to convict the doctor.

On appeal from his first conviction, the Quebec Court of Appeal made history when it substituted a guilty verdict for the jury’s acquittal. On appeal to the Supreme Court of Canada, the conviction was upheld; consequently, he began his sentence in early 1975. It was at this point that the first of Dr. Morgentaler’s indelible marks on Canadian criminal law was made.

In 1975, the Liberal government of Pierre Trudeau amended s.686 of the Criminal Code, the aptly named ‘Morgentaler Amendment,’ removing the power of appellate courts to substitute a guilty verdict for a jury acquittal.

In 1975, while already in a Quebec jail, the second set of charges was laid and, not that it could have made much of a difference at the time, the doctor was acquitted. Apparently not picking up on the trend, the Attorney General laid a new set of charges in January 1976 and Morgentaler was, yet again, acquitted. Later that year, realizing the futility of charging doctors whom juries would not convict, the Quebec government announced that all charges against Morgentaler and other abortion clinicians would be dropped and that there would be no further trials of the like. In an unprecedented, and questionably improper, statement, the Attorney General of Quebec announced that from then on, abortions performed in non-hospital clinics were legal in the province.

Later in 1976, Morgentaler went on the offensive, and launched his first challenge to s.287 of the Criminal Code (the ‘Abortion’ section). The case ended up on the doorstep of the Supreme Court, yet the Court ruled against Dr. Morgentaler. Over the next few years, Morgentaler traversed the country, setting up clinics in numerous provinces.

In 1983, the clinic established in Toronto was raided by police and, yet again, Morgentaler found himself before the court. By this point, the story should be familiar. He was acquitted at trial, and the acquittal was appealed – first to the Court of Appeal, which overturned it, and then to the Supreme Court. And thus the stage was set for what would undoubtedly be the most famous, and memorable, iteration of R v. Morgentaler.
In 1988, the Supreme Court rendered its verdict. In a 5-2 ruling, the Court held that s.287 was violative of the Charter of Rights and Freedoms, and that the law would be struck down. They found that the various administrative procedures that a woman would have to endure to get an abortion violated their s.7 right to ‘life, liberty, and security of the person’ as the consequential delays made it more likely that the woman would suffer complications from either the pregnancy or the procedure. Only one judge, Madam Justice Bertha Wilson, directly tackled the issue of whether prohibiting abortion per se violated the guarantee of ‘life, liberty and security of the person.’ In a famous and oft-quoted ruling, she found that section 7 protected the right to make fundamental person decisions without state interference, and that the choice of whether to carry a baby to term or not undoubtedly qualified as such.

In 1989, the Nova Scotia legislature got wind that Morgentaler was planning to open a clinic in Halifax and, in less than a day, passed the Medical Services Act. This Act prescribed penalties for doctors if they performed various procedures, abortion included, outside a hospital. In what would be his last venture to the Supreme Court, Morgentaler challenged the law as outside the jurisdiction of the province to pass. In what would become a seminal case on the division of legislative powers in Canada, the Supreme Court ruled that the law, indeed, was outside the legislative power of Nova Scotia. They found that the law was an obvious attempt, couched in neutral language but based in morality, to prevent Morgentaler from setting up shop in Nova Scotia. Such a prohibition on moral grounds has long been accepted as the purview of the federal government, and the Court consequently found that the law was of no force or effect.

It seems a bit ironic to think that a single doctor could have more impact on the shape of criminal law than 99% of judges and lawyers. Yet it would seem that such is the case with Dr. Morgentaler. From criminal procedure to the substance of the law itself, Dr. Morgentaler’s litigation has had a profound impact on the shape of criminal law in Canada. The cases that bear his name still stand as cornerstones of jurisprudence in both constitutional and criminal law. They are a staple of first year law school curricula and, though the doctor has now passed, his legacy will endure through the laws that he helped build as well as destroy.

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