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Chapter 18-21

Morgentaler v Borowski Ch. 18-21.docx

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University of Guelph
Political Science
POLS 3130
Dennis Baker

Chapters 18-21 of Morgentaler vs. Borowski Chapter 18 – Return to the Supreme Court - On October 7 , 1986, Morgentaler returned to the SCC - The court was now well on its way into “Charter land” and bore only a faint resemblance to the self-restrained Court that had cautiously avoided the abortion issue and sent Morgentaler to prison a decade earlier - A bold new path of judicial activism was being carved out by the Court - In its first 22 decisions regarding the Charter, the SCC had ruled in favour of the individual Charter claimant 12 times - No case better exemplified the Court’s new course of judicial activism than its decision in Big M Drug Mart v. The Queen; The SCC ruled that the Sunday-closing requirements of the federal Lords Day Act violated the freedom of religion provision in the Charter (this overruled the SCC Bill of Rights precedent regarding Robertson and Rosetanni v. The Queen) - Interest group use of litigation as a political tactic was now a prominent factor in Charter cases (as seen in the Morgentaler case) - The charter created a forum in which interest groups could press their claims - The federal government’s Court Challenges Program announced in 1985 that the government would be allocating $9 million over the next five years to fund litigation arising under the equality rights, language rights and multiculturalism provisions of the Charter. - Surprisingly there were no interest groups participating as interveners as there had been in Morgentaler’s 1975 trip to the SCC. There were several explanations for this: pro-life groups had decided not to intervene because they were already heavily committed financially to the Borowski case, etc. - The case was scheduled to start at 10:30 am on Oct. 7 th - This brought a lot of attention by the media, public, supporters and opponents - Only 7 judges sat on the case (one was too ill and another had been dropped due to an even number of justices) - There were two prongs to Manning’s appeal: the constitutional attack on section 251 and then the issues arising from the trial itself (the availability of the defence of necessity; the issue of a mistrial because of Manning’s closing statements to the jury; ad whether the right of the Crown to appeal from a jury verdict was itself a violation of the Charter) - The constitutional issues were the same as before: Did the abortion law violate freedom of conscience (s. 2(a)), the liberty and security of the person (s. 7), the right against cruel and unusual punishment (s. 12) and the equality provisions (s. 15 and s. 28) - When Manning rose to present his arguments, it was a great disappointment; it turned out to be one of the greatest bores (not only the audience but even the judges seemed to lose interest) - There was one new card in Manning’s deck (in his new argument): the BC Motor Vehicle Reference decision Manning argued this precedent now paved the way for the SCC to find a right to abortion in s. 7 and thus a substantive interpretation of the rights to “life, liberty and security of the person”. This “emancipated” version of the right to liberty was broad enough, Manning told the Court, to “include... the right to be let alone in making fundamental decisions such as whether to marry, divorce, bear children, not to bear children, or to terminate an unwanted pregnancy”. Manning was gambling that the BC Motor Vehicle Reference would trump what had previously been the Crown’s strongest suit: the legislative history indicating that the framers of the Charter intended it to be completely neutral on the abortion issue. - The remainder of the week was taken up by 3 Crown attorneys, then closing statements. Wein and Sojonky defended the abortion law against Manning’s Charter attacks, while Blacklock presented the Crown’s position on the jury-related issues. - The Morgentaler appeal raised many of the most fundamental issues confronting the Court in its new role under the Charter. Should the broadly worded section 7 guarantee that “life, liberty and security of the person” can be infringed only “in accordance with the principles of fundamental justice” be limited to procedural meaning or does it allow the courts to review the substance of legislation? How much weight should be given to the legislative history; the framers intent, in interpreting s. 7 as well as other sections of the Charter? If the judges are free to add substantive non-explicit meaning to s. 7, is there any compelling reason to prefer “the right to privacy” of a pregnant women to the “right to life” of the fetus? Should the ‘reasonable limitations’ criterion of s. 1 be interpreted in a way that defers to legislative judgement of should the burden of proof be placed on the government? Would the latter simply amount to “judicial second guessing” of legislative choices? Does the s. 15 equality rights simply prohibit laws that discriminate unfairly between individuals, or do they create a positive obligation for governments to remedy private inequalities? - After the introduction of the Charter, the SCC fell behind on their workload, therefore they imposed a 60 page limit on factums and was in the process of eliminating the time consuming practice of giving lawyers an oral hearing to request leave to appeal. - In the Morgentaler case, the Court took its first steps in this direction: Manning had requested 5 days to present his arguments but had been turned down by the Court saying he could have 2 days. - Imposing strict time limits on oral arguments would force both the judges and the attorneys to focus on the truly core issues of the case Chapter 19 – The Decision that Rocked the Country - On Jan. 21 , 1988, the SCC issued a press release saying it would hand down its Morgentaler decision the following week (it had been 16 months since the Court had finished hearing oral argument in the Morgentaler case) - Unanimity in the Morgentaler decision would have been nice, but it didn’t happen. On Jan. 28 , th a divided court handed down its decision. By a margin of 5-2, the Court ruled that the abortion law violated s. 7 of the Charter. In addition to the two dissents, the five-judge majority divided three ways on why the law was invalid. One justice (Wilson) declared a constitutional right to abortion, and even acknowledged a legitimate state interest in protecting the life of the fetus at some point. - The other judges who ruled against the abortion law did so because they said it violated the procedural fairness required by s. 7, not because there is any independent right to abortion. These four disagreed among themselves on just how serious even the procedural violations were. Two, Dickson and Lamer, said that the requirements of the current law, such as approval by a therapeutic abortion committee were inherently unfair and would have to be scrapped. The other two, Beetz and Estey, defined the procedural problems more narrowly and thus remediable. They ruled that in principle there was no legal problem with the requirement of the current law that abortions be permitted only when the continuation of a pregnancy “would threaten the life or health of the mother” or with the requirement of an independent and impartial third party to be the judge of the issue; the purpose of a TAC. - The two dissenters, McIntyre and LaForest, looked behind the text of the Charter to the original understanding of its meaning. They found that the history of the debates surrounding the framing of the Charter in 1980-1981 shows that it was intentionally neutral on the abortion issue. They reasoned that judges have no authority to create rights that were not intended to be included in
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