The Crime of Abortion in Canada

I live in a country where abortion is not a crime but floats in legal limbo. Canada has no law regarding abortion; regulations and access vary from province to province and are prey to the whims of whomever is holding the purse strings. Despite a federal ruling that all provinces must fully fund abortions, Nova Scotia provides limited funding for abortion while New Brunswick provides zip, zero, zilch, thereby breaking the law and thumbing their noses at the Canada Health Act. Nationally we have 151 abortion facilities as opposed to the 197 ‘crisis pregnancy centres’ festering across the Great White North. In Quebec there are 61 abortion facilities, in Prince Edward Island there are none.

As Pedgehog noted in her moving post about Dr. Henry Morgantaler, it was his lengthy legal battle, R. v. Morgantaler that resulted in the Supreme Court of Canada striking down the existing abortion law on January 28, 1988. The existing law was found to violate section 7 of the Charter of Rights and Freedoms because it infringed upon a woman’s right to life, liberty and security of person. Chief Justice Brian Dickson wrote:

“Forcing a woman, by threat of criminal sanction, to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus a violation of her security of the person.”

Of course, that wasn’t the end of the matter. There have been over 35 anti-choice private member bills introduced in Parliament since 1987. Some of the more notable cases are Tremblay v. Daigle and Borowski v. Canada, both introduced in 1989.

In Quebec in 1989, Chantal Daigle and her former sexual partner Jean-Guy Tremblay ended up in court when Tremblay sought an injunction to prevent the pregnant Daigle from obtaining an abortion. His argument was that he was protecting the fetus’s right to life. Tremblay insisted that the fetus Daigle was carrying was a person and that he had the right to protect his progeny. Which is kind of ironic considering that Tremblay beat up Daigle more than once while she was pregnant. Like they say, one of the most dangerous times in an abusive relationship is when a woman becomes pregnant. Daigle countered, stating that she had a desire to raise children in stable, peaceful circumstance, that she never wanted to see Tremblay again fearing for her own psychological well being, and while the case was in court, secretly traveled to America to terminate the pregnancy.

The Supreme Court begged to differ with Tremblay, analysing his arguments against Canadian common law, the Civil Code of Quebec, and The Quebec Charter of Human Rights and Freedoms that states:

“The right to life, and the Civil Code of Quebec:  “Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy. These rights are inalienable.”

The Supreme Court of Canada ruled that a fetus is not a person under any of these laws. The Court also ruled that only women can make the choice to end a pregnancy, and that a man has no legal right to prevent a woman’s decision to have an abortion.

Just to illustrate what kind of an asshole Tremblay is, in 2000 he was convicted of assault against a former girlfriend and her friend and in 2005 it was discovered that he had been convicted of fourteen attacks on women, most of them former partners. What a peach. Thanks to him, the issue of a fetus’ right to life was settled.

About the same time, another interesting case made its way before the court. Borowski v. Canada is the leading decision of The Supreme Court of Canada on the mootness of an appealed legal matter. Joseph Borowski, a former politician in Manitoba and pro-lifer, argued that using public money for abortion through Canada’s federally funded health care system is unlawful because it contradicts the Canadian Charter of Rights and Freedoms that, he said, gave a fetus the same right to life, security of person and equality as any other citizen.

In 1989 The Court refused to rule on the matter, deeming it moot since the abortion law had already been overturned in the earlier R. v. Morgentaler ruling. The decision by the court to not rule was unanimous.

Every once in a while abortion pops its head out of the hole and tiptoes around Parliament. In 1990 the Progressive Conservative government introduced Bill C-43, which would have sentenced doctors to two years in prison if they performed abortions where the mother’s health was not at risk. This bill died in a tie vote in Senate. In 2008, your pal and mine, Ken Epp introduced a private member’s bill calling for the murder of a fetus to be considered a separate act from the murder of a pregnant woman. This fun piece of legislation was Bill C-484, The Unborn Victims of Crime Act and lived long enough to pass a vote in the House of Commons but ultimately died and never became law. In 2008, Justice Minister Rob Nicholson proposed a bill that would let judges take a victim’s pregnancy into consideration when handing down a sentence in court. This bill never even made it into the House of Commons.

If you live in Montreal, Toronto or Vancouver and decide to terminate a pregnancy, finding a clinic isn’t difficult; you have your choice of locations and services. British Columbia is the only province in the country to have an Access to Abortion Services, or a bubble zone law restricting anti-choice protesters from areas around clinics, doctor’s offices and homes. Other provinces make it incredibly difficult for a woman to obtain an abortion. In 1989, Nova Scotia banned abortions in clinics outside of hospitals, and in 1994 New Brunswick followed suit. If you live in Prince Edward Island, you’re screwed, having to leave the province to get an abortion and pay out of pocket. In the prairie provinces, Manitoba, Saskatchewan and Alberta, access is concentrated in the larger cities. In the Yukon there are no private clinics but the province pays part of the cost for a woman to travel to British Columbia to obtain an abortion. In Nunavut, there is one hospital that provides taxpayer-funded abortions but if a woman is pregnant past 13 weeks she must travel all the way fuck to Ottawa to end a pregnancy. In the Northwest Territories, there are no private clinics but abortions are provided at two out of the province’s three hospitals.

Since 1989, obtaining an abortion in Canada is not a crime. But depending on where you live, it’s often treated as one.

About Roxanna:
Roxanna is a freelance writer and artist educator who likes comic books, subjecting others to angry tirades, and coffee.

Comments

  1. Great post! One thing though: “In 1989, Nova Scotia banned abortions in clinics outside of hospitals, and in 1994 New Brunswick followed suit.” Is this accurate? Because as far as I know the existence of the clinic in Fredericton isn’t against the law. Or were you referring to publicly-funded abortions?

  2. Publicly funded. The Morgentaler clinic is privately funded as far as I know.
    The ban against clinics contravenes the Canada Health Act; I am fairly certain there has been legal wrangling over the Fredericton clinic.

  3. I found this while researching my latest blog, “How Did We Become Canada’s Insane Cousin.” (http://thepoliticali.blogspot.com/2012/01/how-did-we-become-canadas-insane-cousin.html) I can’t tell you how I wish the U.S. Supreme Court would say that “only women can make the choice to end a pregnancy, and that a man has no legal right to prevent a woman’s decision to have an abortion” as yours did. Thanks for this informative article.

    • Deborah, I love your list. It’s both funny and frightening because it’s true. Our Conservative government has
      been hard at work trying to imitate the Bush regime, eliminating a lot of social services and women’s groups, but the day they try to make a Canadian pay to see a doctor is the day Canada erupts in violence. But since we don’t have guns as you mention in your list, the violence would probably be sharpened hockey sticks and shouting.

  4. Nancy Howie says:

    Roxanne,
    Thank you for this. It is very disconcerting to read how a Tory MP (Stephen Woodworth) is proposing opening up the abortion…to have debate to determine when a human is formed. He is aided and abetted by Ellen Douglas, National organizer of Campaign Life Coalition. I do not know if you saw the article in Huffington Post, but she has the audacity to chastize anyone who does not want to get into the issue in Parliament. She said; “Excuse me? That is what we elect you for, to stand up for moral issues..” This woman needs to take a civics course if she thinks that is what our representatives are there for, as one poster commented. lol.
    So, thanks again for the information. I must admit I was completely ignorant of our abortion laws in Canada, smugly thinking we are so much better than those in the U.S. I will be much more vigilant now of the goings on in this regard.

  5. You probably don’t get alot of men writing on these walls however lately I have been doing some research on abortion. I just have to say that I am almost sickened to see that people are complaining about the fact that something like abortion isn’t extremely easy to do. I am personaly pro-life but I’m not some crazy guy who will try to interfere with abortion laws. I just feel I have a right to voice my opinion. In my view, some allowances were made for abortions due to instances when a woman’s health was possibly compromised or in cases of rape. Now however there are no laws and people are still complaining that an abortion clinic isn’t as easy to find as a local library. Maybe just a little thought should be put into such a decision as an abortion. From reading this article it seems there are people out there who feel we should do all we can to accomodate abortions for anyone anywhere in Canada. Perhaps the government should fund a program to have a phone number to call so a woman can call up and have a qualified doctor show up within 30 minutes or less to perform the procedure….free of charge. I think the fear in the beginning when abortion was legalized that it would be taken too far has been realized. If nobody has the right to suggest what a woman can do to her own body then we need to cut programs that tell woman they shouldn’t consume illegal drugs and large amounts of alcohol while pregnant either. Who do men think they are to be able to suggest such a thing to a woman?

  6. Roxanna Bennett says:

    Actually Chris, we do have male readers. Reproductive choice is not just about access to abortion but having civil rights.

    The complaint is not that it isn’t easy to do, it’s that it isn’t easy to get. Let’s say you’re a young woman in PEI for example, a province that flagrantly breaks the law of the Supreme Court by not providing abortion access to women. Let’s say, to use your example of rape, that this young woman, maybe she’s 16 years old, is raped by her father and becomes pregnant. Should she be forced to give birth to that child because she lives on an island and can’t afford the ferry tickets and basic travel costs to leave the province to terminate that pregnancy?

    I think a great deal of thought goes into having an abortion, it’s one of the most challenging life decision a person can make. While the idea of home visits is nice, an abortion is a low risk surgical procedure and a person having one should have access to the medical equipment found in a hospital or clinic.

    As for funding maternal health progams, that’s a completely different issue, and I’m surprised you would assume that all maternal health care is provided by men. Our health care system is fairly gender balanced. I’m not sure how you’re relating ensuring that a pregnant woman and her foetus have a healthy, safe birth with an unrelated surgical procedure.

Speak Your Mind

*