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.