R v Morgentaler

Dr. Henry Morgentaler operated abortion clinics outside the therapeutic abortion committee scheme set up by s.251. The SCC struck down the provision for violating women's security of the person.

Section 251 criminalised abortion except where a therapeutic abortion committee at an accredited hospital certified the procedure was necessary to preserve life or health. The committee scheme delayed access, required hospital settings, and created uneven availability across Canada.

Does s.251 of the Criminal Code violate s.7 of the Charter?

Yes — by 5-2. The provision was struck down. No replacement legislation has ever been enacted.

State interference with bodily integrity and serious state-imposed psychological stress constitute breaches of security of the person. Procedural unfairness in administering a criminal-law scheme that engages security interests can itself violate s.7.

Multiple judgments. Dickson CJ and Lamer J focused on procedural unfairness — the scheme imposed delays that increased medical risk and was administered unevenly because hospitals could opt out. Beetz J and Estey J focused on the requirements being unnecessary to the state's objective. Wilson J went further: she held that s.7 includes a substantive right to decide whether to continue a pregnancy, treating reproductive autonomy as protected by liberty and conscience.

Decriminalised abortion in Canada. The federal government has never enacted replacement legislation, leaving abortion as a regulated medical procedure under provincial health care. Wilson J's opinion remains the most-cited articulation of women's reproductive autonomy in Canadian constitutional law.

R v Morgentaler, [1988] 1 SCR 30, 1988 CanLII 90 (SCC).

Dickson CJ, Beetz J, Estey J, McIntyre J, Wilson J, La Forest J, Lamer J