- R. v. Morgentaler (1993)
SCCInfoBox
case-name=R. v. Morgentaler
full-case-name=Her Majesty The Queen v. Henry Morgentaler
heard-date=February 4, 1993
decided-date=September 30, 1993
citations= [1993] 3 S.C.R. 463, 125 N.S.R. (2d) 81, 107 D.L.R. (4th) 537, 85 C.C.C. (3d) 118, 25 C.R. (4th) 179
docket=22578
history=Judgment for the defendant in theNova Scotia Supreme Court .
ruling=appeal dismissed
ratio=Nova Scotia regulations regarding abortion were ultra vires the legislature of the province as criminal law.
SCC=1992-1993
Unanimous=Sopinka J.
NotParticipating=
LawsApplied="R. v. Morgentaler" [1993] 3 S.C.R. 463, was a decision by the
Supreme Court of Canada invalidating a provincial attempt to regulate abortions in Canada. This followed the 1988 decision "R. v. Morgentaler ", which had struck down the federalabortion law as a breach of section 7 of the "Canadian Charter of Rights and Freedoms ". In 1993, the provincial regulations were ruled to be acriminal law , which would violate the "Constitution Act, 1867 ". That Act assigns criminal law exclusively to the federal Parliament.Background
Having won his case in "R. v. Morgentaler",
abortion rights activistHenry Morgentaler planned to open anabortion clinic inNova Scotia . The provincial government responded by passing legislation that would outlaw such clinics (as a provincial offence) and limit abortions to recognizedhospital s. This regulation was not limited to abortion but also coveredliposuction and other procedures; indeed, the provincial government claimed it was merely fighting the privatization of thehealth care system (since Morgentaler's clinics were private). The penalty set out in the legislation would be a fine of between $10,000 to $50,000. Undaunted, Morgentaler went ahead and opened his clinic, supposedly to receive potential patients for his other clinics outside Nova Scotia. Eventually, however, Morgentaler informed the press that he had indeed carried out abortions in his Nova Scotia clinic. The government charged him for this, but Morgentaler challenged the constitutionality of the law.Ruling
Upon receiving the issue, the Supreme Court declined to decide the case on the basis of the Charter and limited itself to the federalism issue. Even here, the Court limited itself by not considering the issue of whether abortion relates to
peace, order and good government , which would definitely make it federal jurisdiction. JusticeJohn Sopinka , writing for a unanimous Court, simply agreed with the argument that these specific abortion regulations, rather than being a valid provincial regulation of hospitals andmedicine , instead constituted an invalid criminal law. As a result, all of these regulations were struck down, including the ones not dealing with abortion.The Court began by noting that the legislation was always meant to target specific services, and above all else abortion. In considering the law's
pith and substance , this raised the question of whether the provincial government's true motives for enacting the legislation was not to regulate hospitals or medicine, but to limit what it saw as "the socially undesirable conduct of abortion" (which would be a criminal law function). The Court also noted that in "Morgentaler v. The Queen " (1975), it had been found that the abortion law later struck down in 1988 had been criminal law, and as such it had been appropriately passed by Parliament as opposed to by a provincial legislature. This also raised the question of whether abortion laws are designed to deal with "socially undesirable conduct." The Court then quoted Nova Scotia'sHansard , which reinforced the notion that the provincial government saw Morgentaler's clinics as a "publicevil which should be eliminated" and minimized the argument that the law had been meant to combat privatization.The Court observed that the fines were serious penal considerations, a typical feature of criminal law.
The provincial regulations were also ruled to be very similar to the federal abortion law struck down in 1988 (although Nova Scotia did not resurrect the
Therapeutic Abortion Committee s of the federal law). The similarities were problematic to the provincial law, since similarities between provincial laws and laws in theCriminal Code of Canada have, in the past, led to provincial laws being struck down as "ultra vires " the provincial governments.Commentary
In his book "Constitutional Law of Canada", constitutional scholar
Peter Hogg referred to this "Morgentaler" decision as "remarkable," noting that the regulation of the procedures besides abortion had been struck down after the Court had referred to them as a "smokescreen" for the "true purpose of the legislation." In Hogg's view, the Court had done this under the doctrine of "colourability", which holds that a law designed to look like it was enacted within the powers of the relevant legislative body, but in fact attempting to regulate a matter within another level of government's authority, should be struck down. The Court, however, had emphasized pith and substance, and claimed that it did not employ the colourability doctrine in this particular case. [Hogg, Peter W. "Constitutional Law of Canada". 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), p. 374-375.]References
ee also
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List of Supreme Court of Canada cases (Lamer Court) External links
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