Morgentaler v. The Queen

Morgentaler v. The Queen
Collection
Supreme Court Judgments
Date
1975-03-26
Report
[1976] 1 SCR 616
Judges
Laskin, Bora; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; de Grandpré, Louis-Philippe
On appeal from
Quebec
Subjects
Criminal law
Decision Content
SUPREME COURT OF CANADA
Morgentaler v. The Queen, [1976] 1 S.C.R. 616
Date: 1975-03-26
Dr. Henry Morgentaler Appellant;
and
Her Majesty the Queen Respondent;
and
The Attorney General of Canada et al.
Intervenants.
1974: October 2, 3, 4, 7; 1975: March 26.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF QUEEN'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Criminal law—Unlawful abortion—Defences sub­mitted to jury in error—"Necessity" not proven—Exclusion of criminal responsibility in cases of surgical operations not applicable—Verdict of acquittal by a jury—Conviction entered by Court of Appeal—Powers of Court of Appeal—Criminal Code, R.S.C. 1970, c. 34, ss. 251(1), (4), 45, 613(4)(b), 603, 605.
Appellant was accused of having procured the miscar­riage of a female person by the manipulation and use of an instrument, contrary to s. 251(1) of the Criminal Code. During the trial which took place before a judge and jury, he admitted the act, but relied upon the common law defence of necessity and the statutory defence found in s. 45 of the Criminal Code.
A verdict of acquittal was returned. A unanimous decision of the Court of Appeal set aside this verdict and a conviction was entered with a direction to the trial judge to pass sentence. Hence the appeal to this Court as of right under s. 618(2) of the Criminal Code, on the basis that s. 251 of the Criminal Code is unconstitution­al; that it is inoperative by virtue of the Canadian Bill of Rights; that the preferred indictment was void as constituting an abuse of power by the provincial Attorney General; that the accused was entitled to the benefit of the defences of necessity and of s. 45; that the operation performed was not within the intendment of s. 251; and that the Court of Appeal could not substitute a convic­tion for an acquittal in a jury trial.
Held (Laskin C.J. and Judson and Spence JJ. dissent­ing): The appeal should be dismissed.
Per Martland, Ritchie, Pigeon, Beetz and de Grandpré JJ.: Nothing was said to show that there was any evidence of an urgent necessity for effecting the abortion in disregard of s. 251 of the Criminal Code. Therefore, the Court of Appeal was correct in holding that the trial judge erred in putting the defence of necessity before the jury as there was no evidence to support it. It would be wholly inconsistent with the requirements for a legal abortion as they are clearly defined in s. 251, to read s. 45 as protecting from criminal responsibility any person who performs the operation anywhere provided only that it is done with reasonable care and skill having regard to the state of health of the woman. To submit that the operation performed did not come within the intendment of s. 251 is to ignore the meaning of "avortement" in the French version as well as the definition of "means". By specifying the use of an instrument, the section clearly covers a surgical abortion as practiced by the accused. As for the conviction entered by the Court of Appeal after the accused had been acquitted by a jury, s. 605(1) of the Criminal Code, granting the right of appeal from an acquittal, clearly includes a judgment at trial with or without a jury. Section 613(4) authorizes the Court of Appeal to enter a verdict of guilty where the accused was tried by a jury. Paragraph (b) necessarily applies to a jury verdict after such a trial as well as to an acquittal by a judge. It is true that, as a rule, the duty of a court of appeal is to render the judgment that the trial court should have rendered. However, under our Criminal Code in what is clearly a fundamental departure from common law principles, Parliament has not only pro­vided for appeals against acquittals, but has also spelled out the powers which can be exercised on such appeals, including that of entering a verdict of guilty when there has been an acquittal by jury verdict. This is obviously a power to be used with great circumspection.
Per Martland, Ritchie, Dickson, Beetz and de Grandpré JJ.: Section 45 of the Criminal Code is not available as a defence to a charge under s. 251. Parliament in s. 251 has proscribed as criminal conduct, surgery procur­ing a miscarriage, except in conformity with precise and detailed protective measures including a qualified medi­cal practitioner and an accredited or approved hospital. Section 251 contains a comprehensive code on the sub­ject of abortions, unitary and complete within itself, which the general language of s. 45 does not touch. Section 45 may be available as an answer to a charge arising out of a surgical operation performed on an unconscious patient but it is not available as an answer to a charge of procuring an abortion contrary to s. 251 for s. 251 is concerned with procurement of miscarriage and only remotely, if at all, with surgical operations. As for the defence of necessity, at the very least it must rest upon evidence from which a jury could find (I) that the accused in good faith considered the situation so emer­gent that failure to terminate the pregnancy immediate­ly could endanger life or health and (2) that upon any reasonable view of the facts compliance with the law was impossible. The evidence did not establish these two conditions and the defence of necessity was not open to the appellant.
Per Laskin C.J. and Judson and Spence JJ., dissent­ing: The contention that s. 251 of the Criminal Code was invalid was rejected by this Court because Parlia­ment may determine what is not criminal as well as what is, and may hence introduce dispensations or exemptions in its criminal legislation. Parliament has made a judgment which does not admit of any interfer­ence by the Courts. Furthermore, having regard to the residuary feature of federal legislative power, s. 251 cannot be invalidated unless it is shown that it is in relation to a head of exclusive provincial legislative power. This was not proven.
As to the effect of the Canadian Bill of Rights upon s. 251, s. 1(b) of the Canadian Bill of Rights must not be regarded as charging the Courts with supervising the administrative efficiency of legislation or with evaluat­ing the regional or national organization of its adminis­tration, in the absence of any touchstone in the legisla­tion itself which would indicate a violation of s. 1(6). There is no judicial basis for impeaching s. 251 under s. 1(b) merely because not all persons affected by s. 251 may find it feasible because of geographical or economic considerations to take shelter under its exculpating terms. Any unevenness in the administration of the relieving provisions is for Parliament to correct and not for the Courts to monitor as being a denial of equality before the law and the protection of the law.
As to the dispensations afforded by compliance with s. 251(4) and (5), they do not involve any issue of depriva­tion of a right which may require an opportunity to be heard with or without counsel. They simply permit a person to make conduct lawful which would otherwise be unlawful. Furthermore, it is difficult to see how due process of law in s. 1(a) can be said to require express provision for review of a therapeutic abortion committee’s decisions or can require that reasons be given for these.
The contention that the standard upon which thera­peutic abortion committees must act is uncertain and subjective must be rejected. Parliament could assign an exercise of judgment as to the danger of continuation of pregnancy to a professional group without colliding with any imperatives called for by due process of law under s. 1(a).
Finally, it cannot be said that the mere prohibition of' abortions save as permitted by s. 251(4)(5) involves any imposition of treatment nor that a physician or other person who runs foul of the abortion law is subjected to cruel or unusual punishment if he is sentenced to a term of imprisonment for his criminal conduct. That would mean ignoring the contextual importance of the words "impose" and "imposition". Furthermore the proposi­tions that the accused had a right to a preliminary inquiry and that he had a right to have the indictment screened by a grand jury before its presentation to the Court must be rejected. Modes of trial or modes of bringing an accused to trial are not, by reason of their number, in violation of s. 1(b) of the Canadian Bill of Rights.
As to the legal issues raised under the Criminal Code, not only does s. 45 remain available as a defence but there was also evidence upon which the trial judge could leave that defence to the jury. In charging the jury on this defence, the trial judge proceeded to outline the elements of a s. 45 defence and then to relate the evidence to those elements by explaining that the required regard "to all the circumstances of the case" brought into play s. 251(4) itself as a circumstance bearing on the resort to s. 45.
Since the charge arose out of a surgical operation and since provision existed for a lawful therapeutic abortion under s. 251(4), the evidentiary question, in the light of the law that was put to the jury on necessity, was whether there were more emergent circumstances than those reflected in s. 45 upon which the jury could act, if it so chose, despite the provision for a lawful abortion under s. 251(4). There was some such evidence, and it was for the jury to say whether, in the circumstances, the harm sought to be avoided was an immediate and physical one, and whether there was enough of an emergency in this respect facing the accused as to make it certain that there could be no effective resort to the machinery of s. 251(4) to cope with the emergency. The sufficiency of evidence on any issue is a matter for the jury, which alone is charged to accept what it chooses and to weigh what it accepts in the light of the law given to it by the trial judge. The jury discharged this function in this case; and once it is decided that there was evidence to go to the jury on the two defences which were properly left to the jury, the jury's verdict is not one which can be lightly interfered with by an Appellate Court.
[Parnerkar v. The Queen, [1974] S.C.R. 449; R. v. Bourne, [1939] 1 K.B. 687; Belyea v. The King, [1932] S.C.R. 279, [1931] O.R. 699; Ciglen v. The Queen, [1970] S.C.R. 804; Wild v. The Queen, [1971] S.C.R. 101; R. v. Heyes, [1951] 1 K.B. 29; R. v. Hancock, [1931] 100 L.J.K.B. 419; Savard and Lizotte v. The King, [1946] S.C.R. 20; U.S. v. Holmes (1842), 26 Fed. Cas. 360; R. v. Dudley and Stephens (1884), 14 Q.B.D. 273; Gregson v. Gilbert (1783), 3 Dougl. 232; Mouse's Case (1609), 12 Co. Rep. 63; Southwark London Borough Council v. Williams, [1971], 1 Ch. 734, referred to.]
APPEAL from a judgment of the Court of Queen's Bench, Appeal Side[1], Province of Quebec, setting aside the jury verdict of acquittal and — entering a conviction without ordering a new trial. Appeal dismissed, Laskin C.J. and Judson and Spence JJ. dissenting.
Claude A. Sheppard, Charles E. Flam and Y. Bolduc, for the appellant.
Louis Guy Robichaud, Q.C., for the respondent.
John Scollin, Q.C., and G. F. Pinos, for the Attorney General of Canada.
Clayton Ruby, for the Foundation for Women in Crisis.
Edward Greenspan, for the Canadian Civil Lib­erties Association.
B. Finlay, for the Alliance for Life.
E. Colas, Q.C., for the Association des médecins du Québec and the Front Commun pour le Respect de la vie.
James O'Reilly, for the Fondation pour la vie. The judgment of Laskin C.J. and Judson and Spence JJ. was delivered by
THE CHIEF JUSTICE (dissenting)—This appeal, which is before this Court as of right under s. 618(2) of the Criminal Code, presents the highly unusual, if not the singularly exceptional, situation of an appellate court itself entering a conviction after setting aside a jury verdict of acquittal. The appellant, Dr. Henry Morgentaler, was acquitted on the verdict of a jury of unlawfully procuring the miscarriage of a female person, contrary to s. 251 of the Criminal Code. That verdict was set aside and a conviction was entered by the Quebec Court of Appeal which found it unnecessary to send the case back for a new trial. The five judges who constituted the court, unanimous in result but not in their reasons, concentrated on the two defences that the trial judge had left to the jury, a defence under s. 45 of the Criminal Code and the common law defence of necessity preserved by s. 7(3) of the Criminal Code. It was the opinion of the court that s. 45 was not available as a defence to a charge under s. 251 (or, in the opinion of at least one of the judges, if open, was not applicable in this particular case) and that the defence of neces­sity, in so far as it differed in this case from s. 45 and in so far as it could be a separate defence, was not supported by any evidence that would bring it into play on the facts of this case in respect of all, or at least one of the elements in respect of which the defence had to raise a reasonable doubt.
The appeal from the conviction by the Quebec Court of Appeal is founded on the defences which the trial judge had put to the jury and as well on a number of other matters, set out below, going to the merits of the charge and the acquittal at trial. In addition, the appellant has challenged the con­stitutional validity of s. 251 and has also contested its operative effect in the light of the Canadian Bill of Rights. Intervention on these matters was sought and accorded to the Attorney General of Canada, the Canadian Civil Liberties Association, the Foundation for Women in Crisis, the Alliance for Life, the Fondation de la Vie, the Front Commun pour le Respect de la Vie and l'Associa­tion des Medecins du Québec pour Le Respect de la Vie.
Section 251 of the Criminal Code, in its present form, which is as it was when the charge against Dr. Morgentaler was laid, reads as follows:
251. (1) Every one who, with intent to procure the miscarriage of a female person, whether or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and is liable to imprisonment for life.
(2) Every female person who, being pregnant, with intent to procure her own miscarriage, uses any means or permits any means to be used for the purpose of carrying out her intention is guilty of an indictable offence and is liable to imprisonment for two years.
(3) In this section, "means" includes
(a) the administration of a drug or other noxious thing,
(b) the use of an instrument, and
(c) manipulation of any kind.
(4) Subsections (1) and (2) do not apply to
(a) a qualified medical practitioner, other than a member of a therapeutic abortion committee for any hospital, who in good faith uses in an accredited or approved hospital any means for the purpose of carry­ing out his intention to procure the miscarriage of a female person, or
(b) a female person who, being pregnant, permits a qualified medical practitioner to use in an accredited or approved hospital any means described in paragraph (a) for the purpose of carrying out her intention to procure her own miscarriage, if, before the use of those means, the therapeutic abortion committee for that accredited or approved hospital, by a majority of the members of the committee and at a meeting of the committee at which the case of such female person has been reviewed,
(c) has by certificate in writing stated that in its opinion the continuation of the pregnancy of such female person would or would be likely to endanger her life or health, and
(d) has caused a copy of such certificate to be given to the qualified medical practitioner. (5) The Minister of Health of a province may by order
(a) require a therapeutic abortion committee for any hospital in that province, or any member thereof, to furnish to him a copy of any certificate described in paragraph (4)(c) issued by that committee, together with such other information relating to the circum­stances surrounding the issue of that certificate as he may require, or
(b) require a medical practitioner who, in that prov­ince, has procured the miscarriage of any female person named in a certificate described in paragraph (4)(c), to furnish to him a copy of that certificate, together with such other information relating to the procuring of the miscarriage as he may require.
(6) For the purposes of subsections (4) and (5) and this subsection
"accredited hospital" means a hospital accredited by the Canadian Council on Hospital Accreditation in which diagnostic services and medical, surgical and obstetri­cal treatment arc provided;
"approved hospital" means a hospital in a province approved for the purposes of this section by the Minister of Health of that province;
"board" means the board of governors, management or directors, or the trustees, commission or other person or group of persons having the control and management of an accredited or approved hospital;
"Minister of Health" means
(a) in the Provinces of Ontario, Quebec, New Brunswick, Manitoba, Alberta, Newfoundland and Prince Edward Island, the Minister of Health,
(b) in the Province of British Columbia, the Minister of Health Services and Hospital Insurance,
(c) in the Provinces of Nova Scotia and Saskatche­wan, the Minister of Public Health, and
(d) in the Yukon Territory and the Northwest Territories, the Minister of National Health and Welfare; "qualified medical practitioner" means a person entitled to engage in the practice of medicine under the laws of the province in which the hospital referred to in subsection (4) is situated;
"therapeutic abortion committee" for any hospital means a committee, comprised of not less than three members each of whom is a qualified medical practi­tioner, appointed by the board of that hospital for the purpose of considering and determining questions relating to terminations of pregnancy within that hospital,
(7) Nothing in subsection (4) shall be construed as making unnecessary the obtaining of any authorization or consent that is or may be required, otherwise than under this Act, before any means are used for the purpose of carrying out an intention to procure the miscarriage of a female person.
This provision, consisting of prohibitory terms in subss. (1) and (2) and of relieving terms in subss. (4) and (5) (the other subsections are definition and supporting clauses), is the product, as to its prohibitory terms, of legislation originating in s. 60 of the Offences against the Person Act, 1869 (Can.), c. 20, which in turn was founded upon the Offences against the Person Act, 1861 (U.K.), c. 100, s. 58. Its relieving provisions were enacted in 1969 by 1968-69 (Can.), c. 38, s. 18.
At the conclusion of the submission by counsel for the appellant and by counsel for the Canadian Civil Liberties Association and counsel for the Foundation for Women in Crisis, the Court announced that it did not need to hear the respondent Crown or the other intervenors on either the constitutional issue or on the applicabili­ty and effect of the Canadian Bill of Rights because no case was made out on these matters which required an answer. It is nonetheless impor­tant, in my opinion, to state why the attack on the validity and operation of s. 251 was rejected.
—II—
First, as to the attack on validity. The conten­tion that s. 251 was invalid as being an encroachment on provincial legislative power in relation to hospitals and to the regulation of the profession of medicine and the practice of medicine was made by the appellant alone. It was founded on the position that s. 251 did not meet the test of valid criminal law set out by Rand J. in the Margarine Reference, Reference re Validity of Section 5(a) of the Dairy Industry Act[2], where that learned judge stated it as follows (at pp. 49-50):
A crime is an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legisla­ture has had in mind to suppress the evil or to safeguard the interest threatened ... .
Is the prohibition then enacted with a view to a public purpose which can support it as being in relation to criminal law? Public peace, order, security, health, mor­ality: these are the ordinary though not exclusive ends served by that law, .. .
In my opinion, the provisions of s. 251 as it stood after the amendment in 1969 are well within the scope of the tests by which the late Justice Rand would measure a valid exercise of the federal criminal law power.
The wide scope of the exclusive federal criminal law power has been consistently asserted in the relevant case law in both the Privy Council, when it was Canada's ultimate appellate court, and in this Court. Parliament, in fastening upon certain behaviour or conduct or activity as criminal by proscribing it with penal sanctions, exercises a judgment which is not constitutionally impeachable simply because it may attract the opposition of a section of the population. The remedy or relief, as the case may be, lies with Parliament and not with this Court unless it is made plain to the Court that the use of the penal sanction was a colourable or evasive means of drawing into the orbit of the federal criminal law measures that did not belong there, either because they were essen­tially regulatory of matters within exclusive pro­vincial competence or were otherwise within such exclusive competence. Counsel for the appellant invoked history to support the submission that whatever the basis of prohibitory abortion legislation when first enacted in England by Lord Ellenborough's Act, 1803 (U.K.), c. 58, the evil aimed at had substantially abated because of improved medical and surgical procedures now known and practiced, and especial­ly because of the widely-used surgical suction procedure practiced by the appellant to terminate a pregnancy. Counsel relied on the recent judg­ments of the Supreme Court of the United States in Roe v. Wade[3] and Doe v. Bolton[4]. Those were cases that turned on the scope of the constitutional guarantees of the fourteenth and the ninth amendment of the American Constitution, and were not based on any issue of the limits of federal and state legislative power inter se. Indeed, counsel for the appellant conceded that, absent any issue of con­stitutional guarantees, there could be no valid attack upon the constitutionality of the state abor­tion legislation in those cases as being a trespass on congressional legislative power. (It should be recalled that there is no general criminal law power in the Congress but it resides rather in the states, qualified only by such power in the field of criminal law as Congress derives from its assigned powers.)
What counsel sought to draw from Roe v. Wade and Doe v. Bolton was that the present s. 251 of the Criminal Code could no longer be supported as legislation for the protection of a pregnant wom­an's health, and hence that rationale could no longer justify the presence of s. 251 in the Crimi­nal Code. This, however, is to attribute to Parlia­ment a particular, indeed exclusive concern under s. 251 with health, to the exclusion of any other purpose that would make it a valid exercise of the criminal law power. I am unable to accept this assessment of the basis of s. 251. Perhaps the matter would have a different face if there was here the kind of material that moved the courts in the Margarine Reference (Reference re Validity of Section 5(a) of the Dairy Industry Act)[5] to hold that the challenged s. 5(a) could no longer be supported as for the protection of health. Moreover, in that case there was no other supporting purpose open (apart from Parliament's power to control exports and imports of margarine). What is patent on the face of the prohibitory portion of s. 251 is that Parliament has in its judgment decreed that interference by another, or even by the preg­nant woman herself, with the ordinary course of conception is socially undesirable conduct subject to punishment. That was a judgment open to Parliament in the exercise of its plenary criminal law power, and the fact that there may be safe ways of terminating a pregnancy or that any woman or women claim a personal privilege to that end, becomes immaterial. I need cite no au­thority for the proposition that Parliament may determine what is not criminal as well as what is, and may hence introduce dispensations or exemp­tions in its criminal legislation. It has done this in respect of gaming and betting by prescribing for lawful operation of pari-mutuel systems (s. 188), by exempting agricultural fairs or exhibitions from certain of the prohibitions against lotteries and games of chance (s. 189(3)) and by expressly permitting lotteries under stated conditions (s. 190). I point also to the Lord's Day Act, R.S.C. 1970, c. L-13 as an illustration of a federal statute drawing its validity from the criminal law power which contains various exemptions.
Thus, I see nothing in s. 251(4)(5) that, either alone or in relation to s. 251 as a whole, casts any doubt on its validity. There is, finally, the very relevant point that having regard to the residuary feature of federal legislative power, s. 251 cannot be invalidated unless it be shown that it is in relation to a head of exclusive provincial legislative power. The only suggested bases of invalidation put forward by the appellant were the exclusive provincial powers under s. 92(7)(13) and (16). The short answer to these assertions is that in so far as s. 251 has any relationship to the establishment of hospitals or the regulation of the medical profes­sion or the practice thereof, the relationship is so incidental as to be little short of ephemeral.
—III—
I now address myself to the submissions of counsel for the appellant and counsel for the Canadian Civil Liberties Association and counsel for the Foundation for Women in Crisis on the effect of the Canadian Bill of Rights upon s. 251. These submissions invoked, in the main, s. 1(a) of the Canadian Bill of Rights and s. 1(b), s. 2(b) and, in one respect, s. 2(e). These provisions read as follows:
1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law;
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in par­ticular, no law of Canada shall be construed or applied so as to
(b) impose or authorize the imposition of cruel and unusual treatment or punishment;
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
Before summarizing and dealing with the sub-missions, variously made, on the Canadian Bill of Rights there is one matter, advanced by the appel­lant as bearing on the range of the Canadian Bill of Rights, upon which I wish to comment. It was counsel's contention that the language in s. 1(a) and s. 1(b) upon which he relied, came from the Constitution of the United States and he urged, in consequence, that the adoption of the language involved the adoption of the decisional law by which it has been elaborated and applied. Since counsel for the appellant abjured any claim that stare decisis operated, his submission amounted to this, that decisions of the Supreme Court of the United States should carry weight in the consider­ation of the particular provisions of the Canadian Bill of Rights.
This Court has found such decisions to be help­ful in the past and remains receptive to their citation, but they do not carry any authority beyond persuasiveness according to their relevance in the light of context, with due regard to the obvious differences that exist between the statutory Canadian Bill of Rights and the guarantees of the Constitution of the United States. To give decisions of the Supreme Court of the United States respectful consideration does not carry us into any such theory of the adopted statute as the appellant propounded. Such a theory might have a place where provincial legislation, already con­strued by this Court, has been adopted by another provincial legislature. It does not operate in the present case as the appellant would have it.
The contentions under the Canadian Bill of Rights were that (1) under s. 1(a) thereof women had a right to privacy, involving at least a qualified right to have pregnancy terminated, especially in the first trimester of pregnancy; (2) the right to security of the person under s. 1(a) was infringed by s. 251 without due process of law because the standard in s. 251(4) ("would or would be likely to endanger her life or health") was so vague, so uncertain and so subjective as among different physicians and as among different therapeutic abortion committees as to deny due process of law; (3) there was a further denial of due process of law in the failure to provide adequate procedural safeguards whereby an applicant may appear, with counsel, if she so pleases, before a therapeutic abortion committee to plead her case; (4) moreover, since there was a right to obtain an abortion under certain circumstances without risking crimi­nal penalty, there was a right to a fair hearing thereon in accordance with the principles of funda­mental justice, pursuant to s. 2(e) of the Canadian Bill of Rights; (5) there was a denial of equality before the law and the protection of the law under s. 1(b) because s. 251(4), in permitting 'but not compelling the establishment of therapeutic abor­tion committees and in specifying the number of medical practitioners for those committees, oper­ates unequally in respect of women in rural areas and in areas where no such committees have been established and in relation to women whose eco­nomic status prevents the mobility necessary to avail themselves of such committees where they exist, and in any event, creates inequality because the vague standard given to the committees makes varying interpretations and applications thereof inevitable and consequently enables some women to obtain the protection of the law and others not; (6) there was also a denial of due process of law under s. 1(a) for failure to provide for a review of the decisions of therapeutic abortion committees having regard to the vague standard they must apply, the inability of an applicant to plead her case and the want of reasons for the committees' decisions; indeed the failure to require reasons was itself a denial of due process of law; and (7) the fact that a woman is prevented from having and a physician from performing an abortion using safe medically—proven techniques constitutes cruel and unusual treatment; and moreover, the fact that a physician is prevented from and is punished for performing an abortion which is in his judgment, in the best interest's of his patient and is with her consent is cruel and unusual punishment. It was also submitted by counsel for the Foun­dation for Women in Crisis that the Canadian Bill of Rights, even if considered merely as an aid to interpretation, would support resort to s. 45 as a defence to a charge under s. 251.
This last point does not, in my opinion, give any larger shape to s. 45 than it has under ordinary principles of construction applicable to enactments which provide shelter against conduct that would otherwise be criminal. Point 7 in the submissions on the Canadian Bill of Rights fails because it ignores the contextual importance of the words "impose" and "imposition". I am unable to agree that the mere prohibition of abortions save as permitted by s. 251(4)(5) involves any imposition of treatment; nor can it be said that a physician or other person who runs foul of the abortion law is subjected to cruel or unusual punishment if he is sentenced to a term of imprisonment for his crimi­nal conduct. Counsel's submission here inverts s. 2(6) of the Canadian Bill of Rights into a pros­cription against making conduct criminal. It is quite untenable.
I deal with points (3) and (4) together, and the short answer to them is that the dispensations afforded by compliance with s. 251(4) and (5) do not involve any issue of deprivation of a right which may require an opportunity to be heard with or without counsel. Nothing is being taken away under s. 251(4) and (5); they simply permit a person to make conduct lawful which would otherwise be unlawful. I note in this connection that s. 251(4) and (5) envisage that a qualified medical practitioner will be involved in the review by a therapeutic abortion committee of the case of a pregnant female who seeks lawfully to terminate her pregnancy. Point 6 is a related point and I am unable to see how due process of law in s. 1(a) can be said to require express provision for review of a therapeutic abortion committee's decisions or can require that reasons be given for them. There is no violation of due process of law even in the case of quasi-judicial or regulatory statutory bodies where no provision is made for review of their determinations.
Point 1 and point 2 of the submissions on the Canadian Bill of Rights may be dealt with to­gether. They raise the question considered by this Court in Curr v. The Queen[6] whether s. 1(a) of the Canadian Bill of Rights can be read as invit­ing this Court to pass on the substantive quality of legislation as well as on the adequacy of proce­dural safeguards for the right of the individual to life, liberty, security of the person and enjoyment of property, as specified in s. 1(a). The contentions of counsel who would impugn s. 251 in the light of s. 1(a) of the Canadian Bill of Rights are founded, as to point 1, on the decisions of the Supreme Court of the United States in the Wade and Bolton cases previously cited; and, as to point 2, are founded to a degree on those cases and on other decisions in the United States, such as that in The People v. Barksdale[7], a judgment of the Supreme Court of California.
This Court indicated in the Curr case how for­eign to our constitutional traditions, to our consti­tutional law and to our conceptions of judicial review was any interference by a court with the substantive content of legislation. No doubt, sub­stantive content had to be measured on an issue of ultra vires even prior to the enactment of the Canadian Bill of Rights, and necessary interpreta­tive considerations also had and have a bearing on substantive terms. Of course, the Canadian Bill of Rights introduced a new dimension in respect of the operation and application of federal law, as the judgments of this Court have attested. Yet it cannot be forgotten that it is a statutory instru­ment, illustrative of Parliament's primacy within the limits of its assigned legislative authority, and this is a relevant consideration in determining how far the language of the Canadian Bill of Rights should be taken in assessing the quality of federal enactments which are challenged under s. 1(a). There is as much a temptation here as there is on the question of ultra vires to consider the wisdom of the legislation, and 1 think it is our duty to resist it in the former connection as in the latter.
I am not, however, prepared to say, in this early period of the elaboration of the impact of the Canadian Bill of Rights upon federal legislation, that the prescriptions of s. 1(a) must be rigidly confined to procedural matters. There is often an interaction of means and ends, and it may be that there can be a proper invocation of due process of law in respect of federal legislation as improperly abridging a person's right to life, liberty, security and enjoyment of property. Such a reservation is not, however, called for in the present case.
The contention under point 1 that a right of privacy, as an element of liberty, is protected against federal invasion, is founded upon Roe v. Wade, supra. Yet that case did not recognize this as absolute to the exclusion of a state interest to protect health or potential life. Rather, it sought to balance its recognition of the right to privacy (that is, the right to decide on an abortion) with the right, timewise, of the state to interfere. (The Supreme Court of the United States disclaimed any intention to support abortion on demand, and, indeed, no such claim was advanced by counsel for the appellant or by his supporting intervenors in the present case.) In a situation such as exists in Canada, where there is an exclusive national federal criminal law power and no constitutionally entrenched Bill of Rights, I am unable to agree that we would be warranted in dividing the normal gestation period into zones of interest, one or more to be protected against state interference and another or others not. This is altogether apart from the question whether "liberty" in s. 1(a) embraces privacy or freedom of choice in any such sense as to entitle a pregnant woman to claim that the federal Parliament may not legislate as it has done in s. 251 in its present form. Appellant's contentions on the constitutional validity of s. 251 were in some measure based on the saine considerations that the intervenors, Canadian Civil Liberties Association and the Foundation for Women in Crisis, urged in chal­lenging s. 251 under s. 1(a) of the Canadian Bill of Rights. The challenge, in my view, fails in the latter respect as it failed in the former.
The contention under point 2 is equally unten­able as an attempt to limit the substance of legisla­tion in a situation which does not admit of it. In submitting that the standard upon which thera­peutic abortion committees must act is uncertain and subjective, counsel who make the submission cannot find nourishment for it even in Doe v. Bolton. There it was held that the prohibition of abortion by a physician except when "based upon his best clinical judgment that an abortion is necessary" did not prescribe a standard so vague as to be constitutionally vulnerable. A fortiori, under the approach taken here to substantive due process, the argument of uncertainty and subjec­tivity fails. It is enough to say that Parliament has fixed a manageable standard because it is addressed to a professional panel, the members of which would be expected to bring a practiced judgment to the question whether "the continua­tion of the pregnancy ... would or would be likely to endanger ... life or health". Moreover, I am of the view that Parliament could assign such an exercise of judgment to a professional group without colliding with any imperatives called for by due process of law under s. 1 (a).
Finally, in the catalogue of submissions under the Canadian Bill of Rights is point 5 which, understandably, shows concern for the effect of place or area of residence (where remote from hospitals or where there is a dearth of qu