Abortion in Canada - Bills & Laws
1892 - Canada’s Criminal Code prohibits abortion.
When Canada became an independent country in 1867, it continued to be governed by English common law. “When the Canadian Criminal Code was consolidated in 1892 it incorporated the existing law on abortion, modeled after the British Offences Against the Person Act. The relevant sections were Sections 271-274 of the Criminal Code, which made it illegal and punishable by life imprisonment to procure a woman’s miscarriage and made self-induced abortion subject to seven years in prison. But there was a clear “saving” provision in the code which absolved doctors who acted to preserve a woman’s life and thereby killed the foetus(1).”
(1) Jane Jenson, “Getting to Morgentaler: From One Representation to Another”, M. Janine Brodie et al, The Politics of Abortion (Toronto: Oxford University Press, 1992) p. 24.
1960s - Effort to promote legalized abortion
The public discussion of abortion was limited to an article in Chatelaine, a campaign in the Globe and Mail, The United Church Observer and increasing pressure on the part of the Canadian Bar Association and the Canadian Medical Association. The chief argument for a new law was that it would legitimize in law what was already happening in Canadian hospitals(2).
1967 - Introduction of law to legalize abortion (December 20, 1967)
The Liberal Government, under the leadership of Prime Minister Lester B. Pearson, notified Parliament of its intention to liberalize the abortion law in an Omnibus Bill. Justice Minister Trudeau introduced the 72 page Omnibus Bill which contained over 100 clauses on issues ranging from conception, divorce, homosexuality and abortion, to passport regulations and jury rules, permitting lotteries and relaxing marijuana laws.
1968 - Omnibus Law is reintroduced (July 6, 1968)
Under the new Prime Minister Pierre Elliot Trudeau, Justice Minister John Turner announced he would reintroduce the Omnibus Bill. He insisted that the amendments to the Criminal Code required to implement the Bill would not promote abortion.
1969 - Omnibus Bill is passed (May 9, 1969)
The entire Omnibus Bill is was voted upon for the final with with 149 (119 Liberals, 18 NDPs, 12 PCs) voting in favour of it and 55 (43 PCs, 11 Creditistes, 1 Liberal) voting against it.
The Omnibus Bill maintained abortion as a criminal offence under Sec. 251 of the Criminal Code, but permitted it when an application for an abortion was accepted by the majority of a three-person therapeutic abortion committee (TAC). Because “health” was broadly defined, the TACs were soon authorizing almost every application. Before long, abortion was the second most common surgery after tonsillectomies (3).
The Omnibus Bill represented a major shift in federal dealings with abortion. In the words of Mark MacGuigan, Liberal MP: “I believe that this Omnibus Bill reflects an entirely new government approach to criminal law… the bill would bring about a change not only in criminal legislation, but also in the philosophy behind it, for it apparently indicates a determination that the law shall no longer be thought of as a mirror or morals, and that from now on, crime and sin, law and morals, must be distinguished(4).”
(2) Alphonse de Valk, Morality and Law in Canadian Politics (Montreal: Palm Publisher, 1974) pp. 19-42.
(3) Paul Tuns, Why the Abortion Law was Changed (The Interim, April 1, 2009) pg. 13
(4) Hansard, January 24, 1967: 4191
1975: Petition of One Million (May 1975)
Alliance for Life (Canada), the first national pro-life group, initiated a collection of signatures across Canada which was completed with the help of the Coalition for Life and groups across the country. This “Petition of One Million”, which asked for full legal protection for the preborn was tabled in the House on Commons on May 29, 1975 following a rally on Parliament Hill. The Trudeau government ignored this petition with 1,027, 425 signatures- the largest petition in Canadian history up to that time.
1977: Badgely Report on access to abortion in Canada (January 1977)
In 1975, the government appointed a Committee on the operation of the abortion law to “conduct a study to determine whether the procedure provided in the Criminal Code for obtaining therapeutic abortions was operating equitably across Canada”. In its January 1977 report, the Badgely Committee concluded that “the procedures set out for the operation of the abortion law and not working equitably across Canada”.
1982: The Canadian Charter of Rights and Freedoms is enshrined in the Canadian Constitution
The Charter becomes the basis for the Borowski and the Morgentaler challenges. Borowski appeals to the Charter to defend the personhood of the preborn. Morgentaler appeals to the Charter to overturn the 1969 restrictions on abortion.
1978-1989: Joseph Borowski’s Challenge
In September 1978, former Manitoba Highways Minister Joe Borowski argued in the Saskatchewan Court of Queen’s Bench in Regina that exceptions allowing abortion in Sec. 251 of the Criminal Code contradicted the right to life provisions of the Canadian Bill of Rights. It took five years of court battles, leading all the way to the federal Supreme Court before Borowski was able to gain status to represent the preborn in order to challenge the abortion law in Canada.
In May 1983, the Borowski trial in defence of the preborn child opened in Regina. Counsel for Joseph Borowski argued that the rights of the preborn were included implicitly in the Charter already, by proving the humanity of the preborn child. For six weeks, internally known medical personnel led by Sir William Liley of New Zealand and Professor Jerome Lejeune of France, testified to the nature of the preborn child. At the trial, scientific evidence demonstrating that the unborn child is a human being was uncontested.
On October 3, 1983, Borowski’s claim on behalf of the preborn child was dismissed by the Regina Court. “In a 31 page judgment, the judge concluded that the child in the womb was not a person under law, and not within the scope of the term everyone utilized in the Charter”; therefore, the abortion provisions in the Criminal Code did not contravene the Charter. The odyssey through the appeal courts was about to begin(5).”
After several delays and an attempt by the federal government to have the case dismissed, the Supreme Court of Canada heard Borowski’s case in October 1988. In March 1989, the court dismissed Borowski’s appeal on the sole basis that his case had been rendered moot when the Supreme Court of Canada had struck down Sec. 251 of the Criminal Code in the January 1988 Morgentaler case(6). The Court did not assess the scientific and medical evidence on the nature of the preborn child presented in the original trial.
1973 - 1988 - Henry Morgentaler challenges Canada’s abortion law
Dr. Henry Morgentaler had been performing illegal abortions since 1968. In 1973, he published a description of his abortion technique in the Journal of the Canadian Medical Association. On March 15, 1973, he publicly announced that he had personally performed over 5,000 abortions in violation of Sec. 251 of the Criminal Code. On May 13, Mother’s Day, CTV broadcasted Morgentaler performing an abortion procedure.
In 1973, he was charged with performing an illegal abortion in a freestanding clinic. A jury found him not guilty. On appeal, the decision was set aside and Morgentaler was found guilty. This judgment was upheld by the Supreme Court in Canada in Morgentaler (1) v. The Queen in 1975(7).
Morgentaler was sentenced to 18 months in jail. After his release from prison in Quebec, he decided to challenge the law in other provinces. Over the next 15 years, he opened and operated private abortion clinics across the country in direct violation of the law(8).
On November 8, 1984, a Toronto jury acquitted Dr. Morgentaler and co-accused the charges of conspiracy to procure a miscarriage. On October 1 of the following year, the Ontario Court of Appeal set aside the jury’s acquittal and ordered a new trial.
1988 - Abortion Law is struck down
The case continued to the Supreme Court of Canada, which delivered its landmark decision on January 28, 1988. In a complex 5-2 majority judgment in Morgentaler (2) v. The Queen, “Canada’s top court ruled that the existing federal legislation regulating access to legal abortions, which allowed doctors to provide women with therapeutic abortions under specified ‘medical’ indications and with the approval of a Therapeutic Abortion Committee (TAC), violated a woman’s right to ‘security of the person’ and therefore was unconsitutional”.
As a result of the court’s decision, the current abortion law was no longer in effect. However, the court did not say that the federal government count not develop a new law that would balance the constitutional protection guaranteed to women under Sec. 7 of the Canadian Charter of Rights and Freedoms with the state’s legitimate interest in protecting the preborn(10).
1988 - Six attempts to draft a new abortion law fail (July 1988)
Left without an abortion law following the Supreme Court decision in Morgentaler, the government introduced a motion which would have allowed for a gestational approach to abortion. That motion and give amendments with various approaches to a new abortion law were defeated in the House of Commons in July 1988. The only proposal to come close to passing was introduced by MP Gus Mitges. It called for legal protection of preborn children from the time of conception. The Mitges amendment was narrowly defeated 118 to 105.
1989 - Tremblay v. Daigle (July 1989)
Jean-Guy Tremblay obtained an injection from the Quebec Superior Court to prevent his fiancée, Chantal Daigle, from aborting their 20 week preborn child. The Quebec Court of Appeal upheld the injunction recognizing that the preborn fetus has rights. Mr. Justice Yves Bernier wrote: “the child that has been conceived but not born is a reality that must be taken into account… it is not an inanimate objection, nor the property of anyone, but a living human entity distinct from the mother… and has the right to life and protection from those who conceived it”. The decision also recognized the rights of the father.
The case went all the way to the Supreme Court of Canada. The court agreed to hear the case with extraordinary haste because of the urgency of the situation. While hearing the case, the court was informed by Ms. Daigle’s lawyer that the abortion had already taken place. Nevertheless, the judges proceeded to make their decision. “Less than two hours later, the chief justice announced that the court had unanimously voted to overturn the injunction and would issue its reasons at a later date(11)”.
By denying the possibility of paternal injections in the Daigle case, by ruling Sec. 251 unconstitutional in the Morgentaler decision, and dismissing the Borowski effort to establish protection for the preborn in the Charter, the Supreme Court brought Canada to its present situation: the absence of any federal law restriction abortion(12).
(5) Lianne Laurence, Borowski: A Canadian Paradox *Interim Publishing Company, April 2004) p. 312.
(6) David Brown, “Life’s Dominion in Canada: A Legal Survey” Life and Learning VIII, ed. Joseph W. Koterski, S.J. (Washington, D.C.: University Faculty for Life, 1999) p. 8.
(7) F.L. Morton, Morgentaler v. Borowski: Abortion, the Charter and the Courts (Toronoto: McClelland & Stewart Inc., 1992) Ch. 3.
(8) Abortion in Canada (Wikipedia) http://en.wikipedia.org/wiki/abortioninCanada
(9) Brodie, et al. The Politics of Abortion (Toronto: Oxford University Press, 1992). p. 4.
(10) F.L. Morton, Ch. 3.
(11) F.L. Morton, pp. 281-282.
(12) William Mathie, “Shut Up! he explained: How the ffort to keep abortion off the political agenda has shaped politics”, Life and Leaning XV, ed. Joseph W. Koterski, S.J. (Washington, D.C.: University Faculty for Life, 2005) pp. 321-348
1991 - Bill C-43 (July 31, 1991)
A new abortion law, Bill C-43, that would have retained abortion as a criminal offence, but would have permitted it on broad grounds was presented in the House of Commons in November, 1989. This legislation passed on May 29, 1990 was sent to the Senate for debate where it was defeated by a tie vote on July 31, 1991. It was opposed by some pro-lifers who thought the bill would have no effect and also by many abortion advocates who thought it was too restrictive.
1991 - Regina v. Sullivan and Lemay
Midwives Sullivan and Lemay were charged under the Criminal Code with causing death by criminal negligence of a child they were attempting to deliver. The child died of asphyxiation in the birth canal after 15 hours of labour. The Supreme Court ruled “that a child in the process of being born was not a ‘person’ (even though the head was outside of the mothers body). Therefore, the two midwives Sullivan and Lemay could not be found negligent in causing the death of the child whose mother they were attending. This confirms that unborn babies do not have legal rights unless they are born alive.(13) Criminal Code Sec. 206).
1996 - The Drummond Case
An Ontario woman, Brenda Drummond, was charged with attempted murder when she shot her preborn child in the head with a pellet gun. The case did not go to trial because in preliminary arguments, the judge had stated that the preborn child does not have legal rights as it is not a human being.
1996 - Manitoba “Glue-Sniffing” Case
In August 1996, Winnipeg Child and Family Services attempted to have a 22 year old pregnant woman placed in custody until the birth of her child because of her long history of solvent abuse, suicide attempts and an unsuitable lifestyle. Two of her three children has been born permanently disabled due to her glue-sniffing habit. All of her children were under the permanent guardianship of Winnipeg Child and Family Services. The lower court directed that she be detained and treated. However, on appeal, the Supreme Court of Canada ruled that the law of Canada does not recognize the preborn child as a legal person possessing rights and dismissed the case.
(13) Abortion in Canada Timeline (Life Canada) www.abortionincanada.ca/history/abortioncanadatimeline.html
2007 - The Unborn Victims of Crime Act - Bill C-484
On November 21, 2007, MP Ken Epp introduced Bill C-484, The Unborn Victims of Crime Act, which would make it a separate crime to kill a preborn human being during a criminal act against the mother. The bill passed second reading 147-132, but died when parliament was prorogued due to an election call.
2010 - Roxanne’s Law
MP Rod Bruinooge introduced a private member’s bill, C-510, that would have made it a criminal offence to coerce a woman into having an abortion. The legislation was defeated on December 15, 2010.
2012 - Motion 312 - When does life begin?
A motion (m312) to establish a committee to re-examine Canada’s legal definition of a human being was defeated on September 26, 2012 in Parliament by a vote of 203 to 91. Canada’s Criminal Code states in Sec. 223 that a child only becomes a human being once he or she has fully proceeded from the womb. Sec. 223 is a 400 year old law inherited from British common law. MP Stephen Woodworth of Kitchener Centre introduced M312 on February 6, 2012, stating “Sec. 223 is, purely and simply, a law that says some human beings are not human beings.” In its first hour of debate on April 26, 2012, Woodworth asked “how many Canadians believe that birth is a moment of magical transformation that changes a child from a non-human to a human being?”
2012 - Motion 408 - Sex Selection Abortion
MP Mark Warawa of Langley, B.C. introduced Motion 408 calling on the House to “condemn discrimination against females occurring through sex-selective pregnancy termination”. Warawa’s motion came after a report was published in the Canadian Medical Association Journal which stated that measures are needed to combat the practice of sec selection abortion in Canada’s Asian immigrant population. M-408 was declared non-votable by the sub-committee on Private Member’s Business on March 21, 2013, shutting down any possibility of discussion on the matter. 92% of Canadians believe that sex-selection abortions or female feticides should be illegal, according to a 2011 Environics poll.
“Gender selection has been strongly condemned by all national political parties”, he added. “As well, the Society of Obstetricians and Gynecologists of Canada has vehemently opposed sex-selection pregnancy termination.”
The motion failed in a vote of 91 to 203, but surprised many onlookers by even attaining that many votes. Notably, the motion was backed by more than half of the Conservative caucus and ten Cabinet ministers, despite Prime Minister Stephen Harper’s strong opposition.
“Some readers might be skeptical about whether female feticide is in fact taking place in Canada and the United States”, wrote then-editor Dr. Rajendra Kale. “Research in Canada has found the strongest evidence of sex selection at higher parities if previous children were girls among Asians - that is people from India, China, Korea, Vietnam and Philippines.”