POLS 3130 Chapter Notes - Chapter 18-21: Tacitus, Therapeutic Abortion Committee, Fetus

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Published on 17 Apr 2013
School
University of Guelph
Department
Political Science
Course
POLS 3130
Professor
Chapters 18-21 of Morgentaler vs. Borowski
Chapter 18 Return to the Supreme Court
- On October 7th, 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. 7th
- 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,
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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. 21st, 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. 28th,
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.
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Document Summary

Chapter 18 return to the supreme court. On october 7th, 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. 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)

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