If adversarial relationship could prevail then case

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
