British prohibitions against abortion were the law in Canada until the Canadian Parliament created its own Criminal Code. Under the British 1861 Offenses Against the Person Act, a uniform maximum penalty of life imprisonment for abortion was established, which also provided that the pregnant woman herself, as well as the abortionist, could be held guilty of the offence. Those prohibitions and penalties against abortion were incorporated into the Canadian Code. The law was steadfast in its protection of unborn children.
In 1929 Britain passed the Infant Life Preservation Act which allowed that abortion could be lawful if done in good faith to preserve the life of the mother. The Canadian Criminal Code reflected this change in Section 237, and allowed abortion to preserve the life of the mother.
Therefore prior to 1969 the law permitted abortion only when necessary to preserve the life of the mother. In 1967, the Standing Committee on Health and Welfare of the House of Commons was tasked with examining three private members’ bill relating to abortion. The Committee presented its 1st report on December 19th, 1967 stating: …the committee members, on the basis of representations and study to date, feel that an interim report should be submitted now, on the understanding that the Government may wish to introduce some legislative changes in the laws concerning abortion without waiting for a full and final report.”
A bill was introduced in Parliament on December 21, 1967 by then Minister of Justice Pierre Elliott Trudeau. The Health and Welfare Committee heard from 93 witnesses and received 35 briefs. It made its final report on March 13, 1968 and recommended an amendment allowing abortion “where continuation of the pregnancy…will endanger the life or seriously and directly impair the health of the mother” and recommended further study of the abortion issue. The Committee wanted to restrict the definition of health in the amendment. The Committee heard from 26 doctors. All but one affirmed that abortion destroys a human life. Lawyer David Delher wrote: “The evidence before the Committee indicated that abortion kills a human being and that there were no longer any valid medical reasons for abortion.” Doctor Henry Fitzgibbon said in his letter of February 7, 1968: “As has been repeatedly pointed out at the hearings, there are no longer any valid reasons for the termination of pregnancy on medical grounds. The requests for abortion made to practicing physicians are almost invariably on social grounds…”. (1)
The law was amended on May 14, 1969 to allow abortion in cases where “the continuation of the pregnancy…would be likely to endanger the life or health of the mother” . The word “health” was never defined. Abortions were to be performed in accredited hospitals with the approval of a therapeutic abortion committee of 3 doctors. On January 28, 1988 the Supreme Court of Canada struck down the 1969 law, (Section 251 of the Criminal Code) for procedural reasons related to Section 7 of the Charter of Rights and Freedoms.
The Morgentaler Decision
In January 1988, the Supreme Court of Canada, in the Morgentaler decision, struck down Section 251 of the Criminal Code for procedural reasons. It found that the inequities which the law created were in violation of Section 7 of the Canadian Charter of Rights and Freedoms. As the result of the Supreme Court’s decision, Canada stands alongside Communist China in having no legislation whatsoever protecting the unborn. In making their decision, the Supreme Court Justices had before them no evidence on the nature of life in the womb.
Unlike the Roe V. Wade decision in the United States, the Supreme court of Canada did not rule that a woman has a constitutional “right” to abortion. It struck down the existing law for procedural inequities under the “security of person” phrase of Section 7 of the Charter of Rights and Freedoms. Only one of the seven judges who heard the case, Madam Justice Bertha Wilson, wrote in support of a woman’s right to abortion.
The narrow ruling in Morgentaler left the door open for Parliament to amend the offending provisions and enact a new abortion law which protects all unborn children from the time of conception onwards.
The Borowski Case
On March 9, 1989, the Supreme Court of Canada rejected the appeal of Joe Borowski who had requested a declaration that unborn children enjoy the right to life guaranteed by Section 7 of the Charter of Rights. Borowski was challenging the validity of Section 251 of the Criminal Code which had already been struck down by the Supreme Court in January 1988. Consequently, the judges found that Borowski’s case raised a “hypothetical point” and refused to make a ruling on the rights of unborn children.
In May 1983, the Borowski trial in defence of the unborn child opened in Regina. The original 1978 statement of claim by Borowski had been amended to include an offence to the “life, liberty and security of the person” clause of the Canadian Charter of Rights and Freedoms, proclaimed a year earlier. For six weeks internationally and nationally known medical personnel, led by Sir William Liley of New Zealand and Professor Jerome Lejeune of France, testified to the nature of the unborn child. The scientific evidence presented at the trial was uncontested, and demonstrated beyond a doubt that the unborn child is a human being deserving of the full protection of the law.
The case was dismissed by the Saskatchewan lower court and was eventually appealed to the Supreme Court of Canada. After several delays, and an attempt by the federal government to have the case dismissed before the hearing, the Borowski case was heard by the Supreme court in October 1988.
As the Morgentaler decision striking down the Criminal Code provisions relating to abortion had been rendered ten months earlier, there was no longer an abortion law in Canada at the time of the hearing. This posed a problem for the Supreme Court Justices. Although they allowed the hearing to proceed, they indicated that they felt that the case could well be moot.
In the ensuing decision, in March 1989, the justices did not assess the scientific and medical evidence on the nature of the unborn child presented in the original trial. Their decision to reject the appeal was based solely on the mootness of the case following their January 1988 ruling striking down Section 251 of the Criminal Code.
While the judgement in Morgentaler addressed the question of a woman’s right to “security of the person”, no judgement has ever been rendered by the Supreme Court of Canada on the constitutional rights of the unborn child.
(1) Delher, David, QC. The New Canadian Ethic: Kill our Unborn Canadians. Kanda Publishing, c.1980.