Abortion is not a crime in Canada. But it is an area of the law where, beyond that simple fact, the waters are very murky. In a nutshell, the Supreme Court of Canada said that the section of the
Criminal Code which made abortion a crime was of no force or effect so it is as if that section did not exist. The Supreme Court can overrule Parliament when the latter's laws are incompatible with the Charter of Rights and Freedoms. That was the case here.
Behaviour in Canada can only be criminal if a federal law specifically prohibits it.
Section 287 of the
Criminal Code became law in 1969.
The
Charter of Rights and Freedoms followed in 1982.
The
Code made it a criminal offence to "procure a miscarriage." Section 287 says that every one who, with intent to procure the miscarriage of a female person, uses drugs, instruments or manipulation of any kind, for the purpose of carrying out their intention, is guilty of an indictable offence and liable to imprisonment for life. The
Code exempted doctors from criminal liability if a hospital abortion committee was prepared to sign a statement to the effect that the "continuation of the pregnancy of the female person would or would likely to endanger (the pregnant woman's) life or health."
Section 7 of the
Charter says that "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
Dr. Henry Mortgentaler, through his attempts at establishing abortion clinics in a variety of Canadian provinces, forced the issue of the lawfulness of section 287 of the
Criminal Code.
The issue came to a judicial head in 1988, when the Supreme Court ruled that section 287 of the
Code offended section 7 of the
Charter, and that the former was therefore of no force or effect.
"Forcing a woman," wrote the Chief Justice, Brian Dickson, "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 this a violation of her security of the person."
There were to be other legal challenges.
An Albertan, Joseph Borowski asked the high court to rule that abortions violated the foetus' right to life and equality under section 7 of the
Charter. The Saskatchewan Court of Appeal ruled that a foetus was not a person capable of claiming rights under the
Charter. Borowski's case never made it to the Supreme Court as the decision in Mortgentaler made the issue in Borowski's appeal moot.
The issue of the
rights of the foetus reached the Supreme Court when, in 1989, a Quebec man succeeded in getting an injunction from a Quebec court to prevent his former partner from aborting her foetus. The Court sidestepped the question of foetal rights under the
Charter by deciding that the foetus was not a "person" under Quebec's
Civil Code.
A legislative vacuum of sorts was created.
Nova Scotia tried to write a law which prevented abortions except at certified hospitals. The provincial act was ruled invalid as an encroachment on criminal law powers that is reserved to the federal government.
When she was prime minister, Kim Campbell tabled a bill to bring back a form of criminal law control over abortions. The bill survived a close vote in the House of Commons on May 29, 1990, (140 to 131) but was defeated in the Senate by a rare tie vote (43 to 43) on January 31, 1991.
Therefore, since the Mortgentaler decision, there is no Canadian criminal law which addresses abortion.
The Liberal government in Ottawa has made it clear that it will not introduce amendments to the
Criminal Code with respect to abortion.
A recent development (November, 1996) involves a pregnant Ottawa woman, Brenda Drummond, who tried to kill herself or her foetus by discharging a pellet gun into her vagina. The pellet lodged into the foetus' head and the baby was born alive a few days later. Emergency surgery saved it's life when an x-ray revealed the pellet in the child's head. Attempted murder charges were brought under section 223 of the
Criminal Code which says that "a person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being." The same section defines a "human being ... when it has completely proceeded, in a living state, from the body of its mother whether or not it has completely breathed, it has an independent circulation or the navel string is severed." Defence lawyers are saying that this was merely a failed abortion which, as explained above, is no longer a crime in Canada.
http://www.duhaime.org/family/ca-abor.aspx
