Morgentaler v. the Queen: a study in law reform
Creators: name: Kaupp, Shelly F.
Publisher: name: University of Calgary
Year: 1990
Subjects: subject: KF 9315 K38 1990
subject: Abortion - Law and legislation - Canada
subject: Morgentaler, Henry, 1922-
subject: Law reform - Canada

description: Bibliography: p. 118-121.
description: Dr. Henry Morgentaler's eighteen year campaign against the federal criminal law on abortion provides a model case study that demonstrates the dynamic character of the law reform process in Canada. The different streams of influence that are a part of the abortion controversy in Canada indicates that the reform of the law is not a process monopolized by elected representatives. Through access to the judicial process a number of different individuals and groups have an opportunity to influence, and even change the direction of the law. The initial focus of this study is the civil disobedience of Dr. Morgentaler, followed by an examination of the influence of lawyers, juries and judges, as well as the impact of the Canadian Charter of Rights and Freedoms on the law reform process in the context of the abortion controversy. An objective of this thesis is to describe and explain Dr. Morgentaler's role as a catalyst in reforming the law on abortion, as well as the law on how jury verdicts would be reviewed by an appeal court. Chapter one begins with details on Dr. Morgentaler's initial campaign in Quebec. Three Morgentaler jury trials, two cases before the Quebec Appeal Courts and the 1976 Supreme Court of Canada decision are examined. The chronology also recounts Morgentaler's move into Ontario and Manitoba. Dr. Morgentaler's 1984 Toronto trial, the 1985 Ontario Appeal Court decision and the Supreme Court decision handed down in January of 1988, are the primary sources for re-examining issues similar to those discussed in the Quebec trials. The next three chapters elaborate issues and problems as identified in chapter one. Chapter two examines the statutory and common law defences utilized by Dr. Morgentaler's lawyers. The historical evolution of the necessity defence is traced and its current status in Canadian law evaluated. The purpose of this chapter is to illustrate the impact of lawyers on the law reform process. Chapter three considers the role of the jury as a law reform mechanism. Jury decisions contrary to what should follow from clear proof indicates that the jury role extends beyond mechanical fact-finding. Throughout common law history, juries have gone beyond the routine determination of whether an individual or group has violated a law. At times the law is on trial; and on occasion it is the law that must yield to the community conscience. Chapter four contrasts the success of constitutional issues raised in the two Morgentaler appeals before the Supreme Court of Canada. Given that the Morgentaler trials and appeal cases have crossed over two constitutional eras in Canada, there is an opportunity in this study to contrast the cautious judicial response under the Diefenbaker Bill of Rights with the more activist approach adopted by the Supreme Court in striking down laws on the basis of a conflict with a Charter right. It is apparent that the Charter has substantially altered the political process in Canada and to some extent has established the Supreme Court of Canada as a separate branch of government. Chapter five turns to a comparative analysis of the American experience with court involvement in the abortion issue. The landmark decision of Roe v. Wade is considered with a view to the implications for court legitimacy and effectiveness in the policy arena. Although difficult to define, there are effective limits to the exercise of judicial review as a vehicle for law reform. A comparison of the decision by our Supreme Court in R. v. Morgentaler, and the U.S. Supreme Court decision in Roe v. Wade, demonstrates that the ability to provide leadership on difficult social issues is a function of judicial creativity and statesmanship. However a decision by a judge or a group of judges, cannot be regarded as a final solution, but rather as an important stage in a much larger debate about our national abortion policy.