Hannah Blog

November 9, 2009

In Canada, security-of-the-person is what counts.

Filed under: another perspective — hannah @ 3:31 pm

Thanks to the Regina v. Morgentaler decision 21 years ago.

Morris Manning explains:

Morgentaler’s victory transcends abortion issue

Published On Wed Jan 30 2008

Twenty years ago this week, the Supreme Court of Canada rendered its decision in Regina v. Morgentaler, striking down Canada’s abortion law as it existed in the Criminal Code.

The 20th anniversary of this historic ruling is cause for celebration because it resulted in Canada becoming the only democratic country in the world to allow the abortion decision to be a private one between a woman and her physician. The Supreme Court decision in this case is recognized not only as a legal judgment but as a great event of historical, social and political importance.

Contrary to what many of those in the “movement” espoused, the Supreme Court’s decision did not happen because “its time had come.” Rather, the court reviewed the very detailed factual foundation that I led through evidence at trial.

The trial evidence showed the jury that while the politicians in 1969 claimed that a system was created to allow access to medical assistance for an abortion procedure, in practice, all but a privileged few women were denied access to the procedure.

In the Supreme Court, I argued that this system breached women’s constitutional protections guaranteed by Section 7 of the Canadian Charter of Rights and Freedoms: the right to life, liberty and security of the person. In view of the harsh reality of the evidence presented at trial, the Supreme Court agreed with my legal argument and declared the section of the Criminal Code unconstitutional.

What few realized was that after the jury’s decision to acquit at trial, the political desire to appeal that acquittal to the Court of Appeal led the way to the Supreme Court of Canada being able to strike down the law. It was, after all, the perfect irony. When the jury refused to convict, the government, rather than listening to the will of the majority and accepting their judgment, appealed the acquittal and allowed me to present to the Ontario Court of Appeal and ultimately to the Supreme Court of Canada, the legal argument based on the Canadian Charter of Rights and Freedoms which the jury did not hear and which the trial judge had rejected prior to the jury hearing the evidence.

Today we can be thankful for the political motivation driving toward that legal decision and thankful that each successive government, both Liberal and Conservative, has wisely refused to be drawn back into the no-win debate concerning the abortion decision.

Lawyers and judges have relied on the Morgentaler decision to deal with countless important legal, social and fundamental rights. Legal databases show that decision has been referred to in 489 court decisions.

While many of the decisions deal with legal rights and remedies in cases that affect only the parties within that case, others reflect the importance of the Morgentaler decision to many Canadians, which has absolutely nothing to do with the abortion issue.

The Morgentaler ruling has had profound effects on issues concerning access to health-care services that implicate a person’s life and security of the person. Because of the Morgentaler decision, when an individual can show that the state has deprived her of any life or security-of-the-person interest and that there has been a prohibition from seeking medical treatment, courts will strike down the barrier the state has erected.

Also of great importance was the recognition by the court in the Morgentaler case that any provision which seriously compromises physical and psychological integrity can be viewed as constituting an infringement of security of the person.

The recognition by the Supreme Court that state interference with bodily integrity and serious state-imposed psychological stress engages the security of the person interest was recently applied in Chaoulli v. Quebec.

Taking the Morgentaler ruling’s principles forward, Supreme Court Justices William Binnie and Louis LeBel were of the view that delays in medical treatment could cause interference with physical and mental well-being, amounting to a deprivation of both physical and psychological personal security.

Chief Justice Beverley McLachlin and Justice John Major also found that delay in medical treatment could engage security of the person, because injuries could become irreparable, or due to pain, constant discomfort or limited mobility and due to the possibility of “significant adverse psychological effects.”

So what should be celebrated in recognition of the 20th anniversary of the Morgentaler decision?

We should celebrate that there was a man named Henry Morgentaler who kept the courage of his convictions to fight government in order to achieve justice for others.

We should celebrate the fact that in Canada we have a judicial system that allows one lawyer to bring to court a legal argument that changes the legal boundaries and shows the justice system can work.

We should celebrate that, on occasion, our Supreme Court will fulfill its proper constitutional role in utilizing the Charter to protect us from governmental excesses or prohibitions.

And most of all, we should celebrate that Canada has a Charter of Rights and Freedoms, which, as former Chief Justice Brian Dickson stated, has as its purpose the unremitting protection of individual rights and liberties.

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