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Chapter 21-24

Morgentaler v Borowski Ch. 21-24.docx

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Political Science
POLS 3130
Dennis Baker

Chapter 21 – The Supreme Court Decides Whether to Decide - October 3, 1988 Borowski came back with three interveners, even though there was no woman complainant being denied an abortion or a doctor charged with performing illegal abortion - Argued that under section 7 of the Charter (right to life liberty and security of the person), the unborn child should be included - In 1978, government had argued that Borowski lacked legal ‘standing’ and his claim should be dismissed but after a lengthy process of trials and appeals and a lot of money, he was back in the SCC and the government again tried to argue he had no business being there - The court had “invalidated” section 251 which robbed Borowski’s claim of any legal grounding - Legally, he was almost out of luck but almost earned a right to trial for some of the things he did for his cause – gave up his career, spent hundreds of thousands, went on a hunger strike, etc. - Jurisdiction was an issue – SCC vs. Parliament -However it was difficult because Judges also knew that they weren’t just dealing with Borowski the individual but Borowski the symbol - he represented the millions of Canadians who were pro-life, and Morgentaler has his day in court, it might be considered biased if Borowski didn’t get his - There were no laws regarding abortion so in this case the SCC would be acting strictly as a policy maker – Shumiatcher argued there is no need for statute in this case – they were arguing CHARTER rights, desperate case, to decide against hearing Borowski’s case would be deciding against his cause - Judge L’Heureux Dube countered – easy answer, even if it is desperate, it could just be decided that it is up to the state to decide not the courts - Shumiatcher – the reason there are no abortion laws is a direct result of the SCC’s Morgentaler ruling (you created this problem, now you have to fix it) - Justice Lamer articulated SCC’s primary concern… “if this Court proceeds with this case, then it is an acknowledgement that it has the power to tell Parliament that it should enact a law, and that if it doesn’t, Parliament is in violation of the Charter of Rights” - Shumiatcher basically said “let’s face it, this court is telling the legislature what to do or what not to do all the time” - Technically correct but bad place and time to say this - One of the interveners steps in – it is not an issue of creating a law, but rather clarifying whether section 7 includes the unborn child - Counsel for LEAF (pro-choice) argues that Borowski is asking the SCC to be the “actor of first instance”, when that is not their role – rather they should only be reviewing existing legislation - Courts not happy with Crown either – Mulroney government wanted them to postpone the case until after they passed abortion laws, SCC said no, it interferes with judicial independence (cases shouldn’t be catering to political convenience) - Judges kept asking the Crown Counsel (Sojonky) if he wanted the appeal quashed, but he wouldn’t say it. The Mulroney government did not want the case heard, atleast before the federal Election… didn’t have the political courage to say so – they wanted it quashed but knew it was a significant issue that they couldn’t come right out and ask for it, so they hoped the Courts would quash the case and take the political heat that went with it - After two recesses, they decided they WOULD hear the case - Borowski’s argued “there has never been a time when I was not the same individual” even in the womb, we are still the same person we are when we are born - Used testimony from experts in genetics, embryology, etc. and showed ultrasound tapes of life in the womb – judges were attentive at first but got bored and adjourned court until next morning - His counsel (Shumiatcher) argued criminal law, property law, torts, family law and civil law all recognized some rights of the unborn child, why should the unborn child be deprived of the right to be born alive? - This is all happening at a time when medical advancements are vast and it was being realized how human the unborn child really was, it’s ironic that these rights were taken away at this time - His last tactic was to use the words of the Chief Justice and apply them to his case, “we have to respect the rights of others…” (the rights of the unborn child) - The Crown was next, Sojonky showed that the government would prefer if it was postponed until after abortion laws were passed, but tried to address Borowski’s arguments anyway - Rebutted to his argument that the fetus has rights in other kinds of law – says this isn’t necessarily true - Reminded court that the framers of the Charter were asked to include rights of the unborn child and refused to do so - Parliament trying to balance rights of woman and interests of fetus, complicates things if it is woman’s rights vs. fetus rights - SCC decisions may settle legal cases but don’t SOLVE political issues. If either side “wins”, the opposing side isn’t likely to just pack up their bags and accept it – winner gets a “political resource” because they are backed by the courts - At the end of the oral arguments, it was decided that the final decision wouldn’t be made for a few months - Outside the Courtroom, reporters wanted to see the fetuses that Borowski had brought with him in jars (his counsel told him it was inappropriate to bring into court so they were not shown at the trial) - Since he was unable to show them in court, he was no longer carrying them, media began aggressively interrogating him - Shows that the media struggle was much worse for Borowski than Morgentaler - Court made its decision – decided NOT to go any further, not to decide the case on the basis of the jurisdictional issues - Ball was in Parliaments court to macerate legislation, only then would the SCC act Chapter 22 – The Court Plays Solomon - Summer of 1989, abortion issue would go back to court but not by design, by accident with The Daigle case - Federal government still hadn’t implemented abortion legislation which allowed the provinces the jurisdiction to make abortion as available as they wanted (because they have jurisdiction over health policy) - BC – pro-life premier, government would no longer pay for abortions except for pregnancies that threatened the life of the mother - Manitoba – refused to pay for abortions outside of hospitals - NB and NS tried to prohibit private abortion clinics all together - Ontario allowed private clinics and paid for abortions - PEI – doctors were not allowed to perform abortions since 1982 - Pro-lifers protested everywhere to force shut down on some clinics – brought to court and requests for trial were dismissed – felt that it wasn’t fair and that the pro-choicers were given advantage - Borowski spoke on their behalf – “enough is enough, we are going to fill jails with our bodies, like the negroes did in the US” (demanding change) - Some courts were granting temporary injunctions – ex. Greg murphy granted one to prevent his ex- girlfriend Barbara Dodd from having an abortion – used the same arguments that Borowski did about rights of the unborn child - However in that case the injunction was over-turned a week later and she had her abortion - BUT the next week, she called a press conference to announce her REGRET for having the abortion - Chantal Daigle case – Superior Court (Quebec) issued a preliminary injunction against Jean-Guy Tremblay’s ex-girlfriend Chantal Daigle – midway through her second trimester - People expected it to be overturned like in Dodd case – but it was not - Appealed and injunction was again upheld at the Quebec Court of Appeal, and finally went to the SCC - Case became a battle of pro-life vs. pro-choice, yet again. Both sides were allowed interveners but were only granted 10 minutes to speak - “Pathetically”, the government acted as an intervener on Daigle’s side because of their “right to legislate at a federal level” even though their failure to do so is the reaso
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