If adversarial relationship could prevail then case can be continued Relationship between Borowski and the federal government YES – both sides arguing vigorously) o Use of judicial resources (will issue to continue to reappear before the Court) NO – unlikely issue will continue to come before court – there will be specific legislative context in the future o Role of court in process – sensitive that it is the adjudicative branch NO – there is an absence of legislation or government action Analogous Cases Tremblay v. Daigle (1989) Injunction aganst abortion issued by trial judge upheld by Qubec Court of Appeal, lifted by SC Legal cases that ipact on the legal status of the fetus/unborn child o R v. Suillivan (1991) – midwives o R v. Drummond (1996) – baby shot in the womb o Winnipeg Chld and Family Services v. D.F.G (1997) – pregnant women who sniffed glue o Dobson v. Dobson – injuries sustained in woman before birth Legal cases involing ability to pretest around abortion clinics and fetal rights o Lewis (1196), Demers (2003), Wagner (2012) Morgentaler’s legal Battles: Round 2 – A Brief Timeline Clinics raided in Winnipeg and Toronto (1983) Trial in Toronto, ON (1983-84) o Doctors charged with “conspiracy” to violate s.251 o Ontario trial judge does not find s.251 violates Charter o Jury acquittal of charges Ontario Court of Appeal (1985) o Upholds appeal of Morgentaler acquittal o s. 251 of the Criminal Code does not violate the Charter o Supreme Court hearing October1986, o Supreme Court decision January 1988 o Law is struck down First Trial Does s.251 violate the Charter? o Morgentaler’s defence argues: “liberty” includes the right to govern one’s body (Roe v. Wade) “security of the person” includes psychological security s.7 includes “substantive due process” “procedural” versus “substantive” due process Presents evidence (Badgley Report) that there is unequal access to abortion across Canada Crown o substantive due process makes judges too political– avoid “ Americanizing” the Charter Justice Parker rules s.251 does not violate the Charter Depends on where you live, who is in charge – politics and culture Jury selection o Jury selection experts used by defence Challenge for cause Peremptory challenges Defence argued general “Defence of necessity”
o Bad law, hypocritical politicians, brutish police– Morgentaler was helping people o Defence tells jury to ignore the law The law was inconsistent, criminalizing women who wanted to have an abortion Judge informs jury that they cannot ignore the law, but jury acquits Government appeals – wants to control public policy Second Trial – Ontario Court of Appeal Rejects Morgentaler’s Charter challenge o Charter not meant to address abortion o Charter does not include substantive due process unless a law blatantly contrary to established principles not the case with abortion in Canada No “emergency” o SCC– Defence only excuses illegal behaviour in circumstances of imminent risk and no reasonable opportunity to take legal action
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- Fall '15
- Peter Atack
- Roe v. Wade, Morgentaler, Henry Morgentaler, Abortion in Canada