Dr. Henry Morgentaler Case

The Canadian Charter of Rights and Freedoms is without a doubt one of Canada’s most important section entrenched in the Canadian Constitution. The Charter of Rights and Freedoms is a bill of rights enacted into the Canadian Constitution as part of the Canada Act in 1982. However, the Charter was Canada’s second attempt to protect the rights and freedoms of its citizens all throughout the country and on every level of government. The Canadian Bill of Rights, which preceded the Charter was enacted in 1960. However, being only a federal statute rather than a full constitutional document, it had no power and application to provincial laws. In addition, the Supreme Court of Canada only narrowly interpreted the Bill of Rights, therefore rarely unlawful laws were declared inoperative and continued to exist. As a result, the ineffectiveness of the Bill of Rights led to many movements to improve the protection of rights and freedoms in Canada. However, similar to its predecessor, the Charter is not without faults, and loopholes. In some cases, it has even infringed upon certain liberties and democratic rights and freedoms. In other cases, the Charter has incited conflicts between liberty and democracy and raised questions that speculate whether it is truly democratic.

To prove that the Charter protects some rights but not all, a court case that involved Dr Henry Morgentaler and the Supreme Court of Canada was successful after trials. Before this case, women were only allowed to have an abortion after proper certification of approval from a hospital's Therapeutic Abortion Committee. Three doctors including Morgentaler set up an abortion clinic that allowed women to have an abortion without a certification of approval. He was later charged with illegal abortion under section 251 of the Criminal Code. Morgentaler argued that women had full right on deciding whether or not they wanted an abortion. This law was struck down as unconstitutional as it violated a woman’s right according to section 7 on the Charter.

The first section of the Charter embodies two capacities that are vital to the definition and interpretation of the ‘reasonable limits clause.’ Section one “guarantees the rights and freedoms set out in it” as well as stating that the criteria for limiting a person’s rights and freedoms must be “prescribed by law as can be demonstrably justified in a free and democratic

In Eastern Montreal, Morgentaler worked in medicine as a doctor and he would get a lot of requests for abortions from women. At first he would send them to other doctors in hospitals where it was legal but after those doctors stopped performing abortions, he had nowhere

The counter argument is simply that prior to 1982 these rights existed by mere statute, vulnerable to legislative majorities and the acquiescence of British parliament. At the very least the particular rights exempt from the scope of section 33 acquired increased protection. So it can be said that the Notwithstanding Clause facilitated the patriation of the constitution and thereby elevated the status of those rights not within s. 33 domain. The true value of this product of constitutional negotiation is to be seen in practice and in potential, not in patriation alone. There has been a dearth of charter cases utilizing s. 33. As a purely political act the Quebec government repealed and then reenacted all laws after having inserted the override section, thus insulating them from charter scrutiny. The Supreme Court upheld this omnibus application of s.33, and more important, interpreted a reference to the section or subsection of the charter instead of an explicit citation of the specific rights affected, as adequate. This "expressly declare" provision was seen as a catalyst for public debate, and the court's apparent disregard for that consideration was seen as hampering the effectiveness of s.33. More relevant are the other two occasions when the override was utilized. In 1986 the government of Grant

The Morgentaler case of 1993 and the Smolig and Scott case of 1988 were cases that would have a very impactful ruling. The supreme court of Canada decided that section 287 of the criminal code infringed the rights of section 7 in the charter of rights and freedoms. Section 7 states 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.” (Constitution Acts, 1867 to 1982) This declared that abortion could ne longer be considered a criminal offence because it was unconstitutional and violated one’s rights under section 7. The oakes test would be applied to a case such as this. The oakes test is a legal test the courts use to determine whether an

R v Grant is a leading decision of the Supreme Court of Canada on section 9, section 10, and section 24(2) of the Canadian Charter of Rights and Freedoms. The Court created a number of factors to consider when determining whether a person had been detained for the purpose of sections 9 and 10 of the

After the storm clouds of apartheid lifted to reveal the Rainbow Nation of South Africa in 1994, the first democratically elected government was tasked with drawing up a new constitution that would properly enshrine the human rights that had so long been denied the majority of citizens. One source drawn upon in developing the new constitution was the Canadian Charter of Rights and Freedoms, itself then little more than a decade old. It is not necessary to be a constitutional scholar to detect many similarities between the two; indeed, Canada’s pride in this connection is such that it is highlighted on the Government of Canada 's webpage on bilateral relations with South Africa, which boasts “South Africa 's 1996 Constitution and Bill of Rights draw heavily on Canada 's Charter of Rights and Freedoms”.

Fact: Before 1988, the Criminal Code prohibited abortion unless the life or health of a woman was endangered, the section 251(4) of the Code required them to obtain a certificate from a therapeutic abortion committee of an accredited or approved hospital. In 1998, a very significant decision took place regarding women's rights, which changed this. Dr. Henry Morgentaler, Dr. Leslie Frank Smoling and Dr. Robert Scott were all trained professionals in the medical field, that had organized a clinic to perform abortions for women who did not have a certificate/approval of the hospital. These ladies had publicly doubted the judgment of the abortion laws in Canada and insisted that a woman must have the unfettered right to choose whether or not an abortion is appropriate for her own matters. The legal case was between Dr. Morgentaler and Her Majesty the Queen. In the end of the case, only Justice Wilson, one of the judges defended an abortion right and announced that a constitutional right to abortion or “freedom of choice.” The decision 5-2, was split into four separate judgments. Although only Justice Wilson declared the

Such as in 1988, the Supreme Court declared the old abortion section of the Criminal Code to be unconstitutional, following the trial of Dr. Henry Morgentaler (uOttawa, n.d.). Considering the government represents Canada, such an event is to be distinguished as a benefit to the country, rather than solely for the individual.

Darlena Cunha of TIME writes in “Roe v. Wade Ruined Our Chance for True Abortion Rights” about how in the state of Florida, a bill had passed through committee that would make carrying out abortions, or even operating a clinic that does so, will count as felonies punishable by up to thirty years in prison. Other examples they point out in the piece occurs in conservative states, such as Kentucky, Ohio, etc., the pregnant woman must see “state-directed counseling” that urges them to keep their pregnancy and wait for twenty-four hours before making their decision (Cunha). This violates the privacy act, as Associate Justice Ruth Bader Ginsburg of the Supreme Court has also argued, because if a woman chooses to have an abortion, or carry to term,

- This issue was last tried on May 27, 2011, in the Supreme Court of Canada

6. What was the decision of the Supreme Court of the United States in Ontario v Quon?

This case is about section 18.1 of the Commissioner’s Directive regarding the eligibility of Marie Reyes into the Mother-Child Program. It is about determining whether or not the reform in the Correctional Service of Canada’s Mother-Child Program is discriminatory or is in violation of t which now states “Women convicted of any crime of violence, regardless of whether the crime involved a child, are not eligible to participate in the program”. This is in violation of Marie Reyes rights under section 7 and 15 of the Charter of Rights and Freedoms. (Do I have to keep this

SEC. 3. Definition of Terms. – For purposes of this Act, the following shall refer