Reasons of Dickson CJ and Lamer J

(The Judgment of Justices Dickson and Lamer begins on page 45 of R v Morgentaler [1988]. For a summary of their reasons for judgment, click here.)

The Chief Justice restricted his remarks to only one of the three interests protected in section 7 of the Charter, namely  “security of the person.” As Law Professor Sheilah L. Martin notes, “The Chief Justice concluded that the purpose and operation of section 251 violated a pregnant woman’s physical integrity and psychological well being.” 1

According to the Chief Justice:

The case law leads me to the conclusion that state interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitute a breach of security of the person….

Parliament could choose to infringe security of the person if it did so in a manner consistent with the principles of fundamental justice. …

At the most basic, physical and emotional level, every pregnant woman is told by the section that she cannot submit to a generally safe medical procedure that might be of clear benefit to her unless she meets criteria entirely unrelated to her own priorities and aspirations. Not only does the removal of decision-making power threaten women in a physical sense; the indecision of knowing whether an abortion will be granted inflicts emotional stress. Section 251 clearly interferes with a woman’s bodily integrity in both a physical and emotional sense. Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus a violation of security of the person. Section 251, therefore, is required by the Charter to comport with the principles of fundamental justice. (R v Morgentaler at pages 56-57)

As Professor Martin explains the Chief Justice’s reasoning,

…it is not the mere removal of decision-making authority away from women which breached section 7. It was the bodily effects and psychological stress which resulted from denying women decision-making authority which impaired women’s security of the person. He did not outline a right to choose to have an abortion. He merely recognized that a pregnant woman had a right, in the criminal justice context, to be free from state interference with her bodily integrity and a right to be free from state-imposed psychological stress. Her ‘rights’ were therefore framed in a negative way and were limited in scope. He did not give any indication of the type of criminal abortion legislation which may be constitutionally valid. 2

The Chief Justice was also concerned about the delays caused by the procedural requirements of the law, and such delays could impair a woman’s health. This he saw as another way that a woman’s “security of the person” was breached:

A second breach of the right to security of the person occurs independently as a result of the delay in obtaining therapeutic abortions caused by the mandatory procedures of s. 251 which results in a higher probability of complications and greater risk. (R v Morgentaler at page 33)

He noted that different medical techniques were used at later stages of pregnancy, and these posed greater physical health risks to the woman. He quoted from experts who said that there was an increased risk of psychological stress on women when they

“…are forced to wait for abortions, and that this stress is compounded by the uncertainty whether or not a therapeutic abortion committee will actually grant approval.” (R v Morgentaler at page 60)

Section 7 of the Charter allows the government to infringe on the right to “life, liberty and security of the person” if the infringement is in accordance with fundamental justice. Chief Justice Dickson found that the violations to “security of the person” were not in accordance with fundamental justice because the defence created in section 251 was potentially so difficult to obtain as to be in effect “illusory.” 3 For example, he said that the requirements that hospitals had to be “accredited” or “approved” reduced the availability of therapeutic abortion committees. And he noted that:

“…the seemingly neutral requirement of s. 251(4) that at least four physicians be available to authorize and to perform an abortion meant in practice that abortions would be absolutely unavailable in almost one quarter of all hospitals in Canada.” (R v Morgentaler at p. 66)

He also found that the test for a danger to women’s “health” was vague and not all therapeutic abortion committees would apply the same standards. Some committees would approve abortions for psychological reasons, others would not. So women would not know in advance whether they would qualify for an abortion and this could increase psychological stress; clear legal standards should be set out. 4

Chief Justice Dickson summed up his analysis of the Charter 7 right to “security of the person” as follows:

Parliament must be given room to design an appropriate administrative and procedural structure for bringing into operation a particular defence to criminal liability. But if that structure is “so manifestly unfair, having regard to the decisions it is called upon to make, as to violate the principles of fundamental justice”, that structure must be struck down. In the present case, the structure — the system regulating access to therapeutic abortions — is manifestly unfair. It contains so many potential barriers to its own operation that the defence it creates will in many circumstances be practically unavailable to women who would prima facie qualify for the defence, or at least would force such women to travel great distances at substantial expense and inconvenience in order to benefit from a defence that is held out to be generally available.

I conclude that the procedures created in s. 251 of the Criminal Code for obtaining a therapeutic abortion do not comport with the principles of fundamental justice. It is not necessary to determine whether s. 7 also contains a substantive content leading to the conclusion that, in some circumstances at least, the deprivation of a pregnant woman’s right to security of the person can never comport with fundamental justice. Simply put, assuming Parliament can act, it must do so properly. (R v Morgentaler at pp. 72-73)

The Chief Justice recognized that the state does have an interest in protecting fetal life but he did not elaborate on how far the government could go in protecting that interest – an interest which would have to be balanced with protecting the rights of women:

Like Beetz and Wilson JJ., I agree that protection of foetal interests by Parliament is also a valid governmental objective. It follows that balancing these interests, with the lives and health of women a major factor, is clearly an important governmental objective.” (R v Morgentaler at page 75)

Reasons of Beetz and Estey
Reasons of Madam Justice Wilson

(Go back to Summary of the Majority Opinion)

  1. Martin, Sheilah L., “Morgentaler v The Queen in the Supreme Court of Canada,” Canadian Journal of Women & the Law; 1987-1988, Vol. 2 Issue 2, p. 425.
  2. Martin, p. 425
  3. Morton, Mildred, “The Morgentaler Judgment: How the Decisions Differ,” Law and Government Division, Library of Parliament, 9 February 1988, p. 7-8.
  4. Morton, p. 8