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Lecture 13

POLS 3140 Lecture 13: Morgentaler

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Political Science
POLS 3140
Dave Snow

March 7, 2017 Lecture 13 Morgentaler Morgentaler (1988) and Chaoulli (2005) Positive vs. negative liberty Federalism and the Charter Clash of rights in s. 7 The (limited) Oakes test in s. 7 jurisprudence Deference and dialogue Criminal Code: Section 251 1969 reform: Maximum life sentence for person performing abortion o Two years for the woman, unless Therapeutic Abortion Committee o Approved by 3 doctors o Accredited hospital o Would endanger life or health of mother Internally Qualified Rights S. 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 Principles of Fundamental Justice: Tend to replace the Oakes test, especially in later cases Abortion in the Charter (198081) Kaplan (Solicitor General): Should be dealt with not by the courts, but by Parliament Chretien (Justice): We pass legislation on abortion the court cannot go and see whether we made the right decision Trudeau (PM): No provision in the Charter would either enshrine a right to abortion or a right to life for the unborn Morgentaler in the SCC (1988) The Morgentaler case o Only 79 justices Does TAC requirement violate s. 7 right to life, liberty, and security of the person? Section 251 struck down (52 vote) o 3 sets of reasons in majority judgement (Beetz and Estey, Dickson and Lamer, and Wilson) o 1 dissent (McIntyre and LaForest) McIntyre and LaForest (Dissenting) A constitutional right to have an abortion is devoid of support in the language of s. 7 of the Charter, or any other section The court must not decide the case on the basis of how many judges may favour prochoice or prolife Change for parliament to make Judicial restraint (deference) Beetz and Estey S. 7 security of the person violated Not in accordance with PFJs, not saved by s. 1 TACs Delays and unequal availability o Used Badgley Report (social science evidence) Parliament could create more efficient TAC system o Problem with s. 251: Process, not substance
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