substantially, just as after
Roe
the rate increased spectacularly in the United States.
Knopff and Morton attribute the Canadian Court’s altered willingness to accept the pro-abortion decision to more than the replacement of Canada’s statutory
Bill of Rights
by the
Charter of Rights and Freedoms
. The latter, after all, was silent, and deliberately so, on the issue of abortion. The change by the Court, they point out, was due to the dramatic change in the social and political climate. Radical feminism had emerged as a major force in Canadian politics, and women secured seats on the Supreme Court as well as much greater participation in the legal profession. This is not to say that women are uniformly pro-abortion, but the women entering the legal profession, having attended university and law school, were members of the New Class, and they heavily favored abortion rights. In Canada as in America, immersion in higher education these days produces a pronounced swing to the cultural left.
In
Morgentaler, Smoling and Scott
v.
The Queen
(1988), four of the five Justices in the majority found procedural deficiencies in the statute regulating abortion, but Justice Wilson wrote that it would merely be a waste of Parliament’s time to address procedures because women have a substantive right to abortion. She ignored the legislative history of section 7, perhaps because that history tended to contradict the position she espoused. In language remarkably similar to that of the American JusticesBlackmun (in
Roe)
and Brennan (in the contraceptive case,
Eisenstadt
v.
Baird
[1972]), and the joint opinion of O’Connor, Kennedy, and Souter (in
Planned Parenthood
v.
Casey)
, she argued that section 7 promoted “human dignity and worth,” guaranteeing “a degree of personal autonomy over important decisions intimately affecting their private lives.” Like the American judges, Justice Wilson was unconcerned with what the persons who adopted the
Charter
understood themselves to be doing. Acknowledging that Parliament had an interest in protecting the fetus in the later stages of development, she offered her personal opinion that Parliament’s power might become legitimate “somewhere in the second trimester.”
Justice McIntyre dissented, saying “when in the name of constitutional interpretation, the Court adds something to the Constitution that was deliberately excluded from it, the Court in reality substitutes its view of what should be so for the amending process.” That statement seems undeniable.
The anti-abortion forces proved equally ready to use the
Charter
for purposes it was not designed to encompass. In
Borowski
the plaintiff wanted the courts to declare that the same statute stricken in
Morgentaler
outlawed all abortions because of section 7’s protection of “everyone” as entitled to life. But since the prior case had invalidated the statute, the Court, after hearing argument and a considerable subsequent delay, announced that the present nonexistence of the statute rendered Borowski’s claim moot. Justice Sopinka’s opinion for the Court said, with respect to standing, that it was sufficient that a plaintiffshow that “he has a genuine interest as a citizen in the validity of the legislation” he challenges. In a word, ideology will suffice. Mootness, he said, requires that there be “no present live controversy” which “affects the rights of the parties.” But “[t]he general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice.” “Discretion” seems to be a synonym for lawlessness.
That this is not too harsh a judgment is demonstrated by the Court’s contrasting decision in
Daigle
v.
Tremblay
(1989). In this case Daigle, having broken with her lover, Tremblay, after five months of cohabitation, decided she wanted an abortion. She cited no reasons other than a desire not to have a child. Abortion here was clearly a form of
Roe
the rate increased spectacularly in the United States.
Knopff and Morton attribute the Canadian Court’s altered willingness to accept the pro-abortion decision to more than the replacement of Canada’s statutory
Bill of Rights
by the
Charter of Rights and Freedoms
. The latter, after all, was silent, and deliberately so, on the issue of abortion. The change by the Court, they point out, was due to the dramatic change in the social and political climate. Radical feminism had emerged as a major force in Canadian politics, and women secured seats on the Supreme Court as well as much greater participation in the legal profession. This is not to say that women are uniformly pro-abortion, but the women entering the legal profession, having attended university and law school, were members of the New Class, and they heavily favored abortion rights. In Canada as in America, immersion in higher education these days produces a pronounced swing to the cultural left.
In
Morgentaler, Smoling and Scott
v.
The Queen
(1988), four of the five Justices in the majority found procedural deficiencies in the statute regulating abortion, but Justice Wilson wrote that it would merely be a waste of Parliament’s time to address procedures because women have a substantive right to abortion. She ignored the legislative history of section 7, perhaps because that history tended to contradict the position she espoused. In language remarkably similar to that of the American JusticesBlackmun (in
Roe)
and Brennan (in the contraceptive case,
Eisenstadt
v.
Baird
[1972]), and the joint opinion of O’Connor, Kennedy, and Souter (in
Planned Parenthood
v.
Casey)
, she argued that section 7 promoted “human dignity and worth,” guaranteeing “a degree of personal autonomy over important decisions intimately affecting their private lives.” Like the American judges, Justice Wilson was unconcerned with what the persons who adopted the
Charter
understood themselves to be doing. Acknowledging that Parliament had an interest in protecting the fetus in the later stages of development, she offered her personal opinion that Parliament’s power might become legitimate “somewhere in the second trimester.”
Justice McIntyre dissented, saying “when in the name of constitutional interpretation, the Court adds something to the Constitution that was deliberately excluded from it, the Court in reality substitutes its view of what should be so for the amending process.” That statement seems undeniable.
The anti-abortion forces proved equally ready to use the
Charter
for purposes it was not designed to encompass. In
Borowski
the plaintiff wanted the courts to declare that the same statute stricken in
Morgentaler
outlawed all abortions because of section 7’s protection of “everyone” as entitled to life. But since the prior case had invalidated the statute, the Court, after hearing argument and a considerable subsequent delay, announced that the present nonexistence of the statute rendered Borowski’s claim moot. Justice Sopinka’s opinion for the Court said, with respect to standing, that it was sufficient that a plaintiffshow that “he has a genuine interest as a citizen in the validity of the legislation” he challenges. In a word, ideology will suffice. Mootness, he said, requires that there be “no present live controversy” which “affects the rights of the parties.” But “[t]he general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice.” “Discretion” seems to be a synonym for lawlessness.
That this is not too harsh a judgment is demonstrated by the Court’s contrasting decision in
Daigle
v.
Tremblay
(1989). In this case Daigle, having broken with her lover, Tremblay, after five months of cohabitation, decided she wanted an abortion. She cited no reasons other than a desire not to have a child. Abortion here was clearly a form of
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