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History of Abortion in Canada


The road to having no federal criminal law in Canada regarding abortion is a long and detailed story. The following is a timeline of significant events.

1869

Parliament enacted a criminal law which prohibited abortion and punished it with a penalty of life imprisonment.

 

1892

Parliament enacted the first Criminal Code, which criminalized abortion and the sale, distribution and advertisement of contraception.

 

1937

Social worker Dorothea Palmer was acquitted of offering birth control information No one was ever charged again with this crime even though the law was not changed until 1969.

 

1961

Harold Fine, a wholesale druggist in Toronto, was convicted of selling condoms through the mail.

 

1967

As Canada turned 100 years old, the Federal Standing Committee on Health and Welfare began consideration of proposed amendments to the Criminal Code relating to abortion. Dr. Henry Morgentaler appeared on behalf of the Humanist Fellowship of Montreal, arguing for a repeal of the abortion law.

 

1969

Parliament decriminalized contraception and some abortions, provided that a hospital committee certified that continuation of the pregnancy would likely endanger the woman's life or health.

Dr. Morgentaler ended his general practice to specialize in the performance of abortions at his clinic in Montreal.

 

1970

Dr. Morgentaler's clinic was raided and he was charged with performing illegal abortions. In 1971 he was again charged with performing an illegal abortion.

 

1973

Dr. Morgentaler issued a public statement that he was performing abortions. In May, he demonstrated his technique on national television. The clinic was raided again and ten new charges were laid. On November 13 a jury acquitted Dr. Morgentaler.

 

1974

The Court of Appeal reversed the acquittal, and Dr. Morgentaler appealed to the Supreme Court of Canada. Mr. Justice J.K. Hugessen sentenced Dr. Morgentaler to 18 months. He remained free pending his appeal to the Supreme Court of Canada.

 

1975

In March the Supreme Court dismissed the appeal. Dr. Morgentaler served 10 months in jail, where he suffered a mild heart attack. In June a jury acquitted Dr. Morgentaler on a second count.

 

1976

The Court of Appeals denied the Crown's appeal of Dr. Morgentaler's acquittal and the Supreme Court of Canada let that denial stand. The federal government amended the Criminal Code to prevent any future appeal court ordering conviction after jury acquittal. The Minister of Justice set aside the 1974 conviction and ordered a new trial. Dr. Morgentaler was released from custody. The new trial resulted again in an acquittal.

The Minister of Justice established the Committee on the Operation of the Abortion Law, chaired by Robin Badgley.

In November the newly elected Parti Québécois government announced that outstanding charges against Dr. Morgentaler would not proceed and that doctors providing abortions in Quebec would not be prosecuted.

 

1977

The Badgley Committee report of the Ministry of Justice concluded that the abortion law was not being applied equitably across Canada. The report stated that "the procedure provided in the Criminal Code for obtaining therapeutic abortion is in practice illusory for many Canadian women."

 

1982

The Constitution Act received Royal Assent. The Supreme Court of Canada later heard Dr. Morgentaler's appeal based on several sections of the Constitution.

 

1983

Dr. Morgentaler opened a clinic in Winnipeg. The clinic was raided and Dr. Morgentaler, Dr. Robert Scott, and head nurse Lynn Crocker were charged with procuring a miscarriage.

Police raided the Toronto clinic, seizing equipment and charging Drs. Morgentaler, Scott and Smoling with conspiracy to procure a miscarriage. The defence filed a motion challenging the constitutional validity of s. 251 of the Criminal Code.

The Toronto clinic suffered an arson attack.

 

1984

The judge dismisses the defence motion, but the jury acquitted all three doctors. The Ontario Attorney-General appealed the acquittal. The Toronto clinic reopened, and Ontario filed new charges against Drs. Scott and Morgentaler.

 

1985

Two more raids on the Winnipeg clinic resulted in six additional counts against Dr. Morgentaler, bringing the total number of charges outstanding against him in Manitoba to seven.

The Ontario Court of Appeals set aside the Toronto jury's acquittal and ordered a new trial. Dr. Morgentaler appealed to the Supreme Court of Canada. The province said that it would not seek to shut down the Toronto Clinic while the appeal was pending.

 

1986

Dr. Robert Scott opened a second Toronto clinic. Toronto police laid charges against Dr. Morgentaler, Dr. Scott, and Dr. Colodny, but the Attorney-General stayed the proceedings pending the Supreme Court of Canada appeal.

The Manitoba College of Physicians and Surgeons rejects Dr. Morgentaler's request for a license for his Winnipeg clinic on the grounds that the Criminal Code states abortions can be performed only in accredited hospitals.

Quebec Justice Minister Herbert Marx halted private prosecution of Dr. Yvan Machabee by abortion opponent Reggie Chartrand, as well as proceedings following a private complaint against Dr. Jean-Denis Berbube and a Chicoutimi community clinic. A Quebec Superior Court judge overruled Marx' decision to halt Dr. Machabee's case. Dr. Machabee filed a notice of appeal.

 

1987

The Supreme Court of Canada denied Rev. Ken Campbell leave to appeal the ruling by the Ontario Court of Appeal to the effect that the province's Attorney General was within his rights to order stay of proceedings in September 1986.

The Supreme Court of Canada agreed to hear anti-abortion activist Joe Borowski's appeal from a Saskatchewan Court of Appeal ruling that the constitutional guarantee of right to life does not apply to foetuses.

Dr. Morgentaler was scheduled for arraignment on charges initiated by Reggie Chartrand. Dr. Morgentaler petitioned Quebec Superior Court to block all actions against him by anti-abortion people. The judge adjourned proceedings against Dr. Morgentaler until the Quebec Superior Court could rule on whether three earlier complaints by Reggie Chartrand should proceed.

The Quebec Court of Appeal ruled that Justice Minister Marx had the right to order a halt to Dr. Machabee's trial in 1986.

The Quebec Superior Court ruled that two abortion-related complaints against Dr. Morgentaler by Reggie Chartrand were valid and that a pre-inquiry should determine if there were grounds for formal charges against Dr. Morgentaler.

The Ontario government dropped the 1986 charges against Drs. Morgentaler, Scott and Colodny.

Dr. Morgentaler's arraignment on the charges initiated by Reggie Chartrand was postponed pending the Supreme Court of Canada ruling on his case in Ontario.

 

1988

The Supreme Court of Canada struck down Canada's abortion law (section 251 of the Criminal Code), ruling that it was unconstitutional. The Justices found that the law violated Canada's Charter of Rights and Freedoms because it infringed upon a woman's right to ``life, liberty and security of the person." The decision came approximately 20 years after Dr. Morgentaler first performed an abortion.

The federal government introduced a resolution to Parliament containing the broad outline of a new gestation-based abortion law. The resolution was defeated, along with five amendments.

 

1989

The Supreme Court of Canada refused to decide on the claim of Joe Borowski that foetuses have a constitutionally guaranteed right to life. Since the abortion law had already been struck down, his case was found to be moot.

The province of Nova Scotia passed legislation prohibiting the performance of abortions in clinics, in response to Dr. Morgentaler's plans to open a free-standing abortion clinic in Halifax. The Canadian Abortion Rights Action League (CARAL) launches a legal challenge of the Nova Scotia legislation. The Nova Scotia Attorney General challenged CARAL's standing to launch such a case, and Mr. Justice Merlin Nunn of the Nova Scotia Supreme Court denied CARAL's standing.

In Manitoba, Ontario and Quebec, men tried to get injunctions to halt their former girlfriends' abortions. In the Ontario and Quebec cases, courts granted the injunctions; one was set aside on appeal but the Quebec Court of Appeal upheld the injunction against Chantal Daigle, who appealed to the Supreme Court. Ms. Daigle had already obtained an abortion in the U.S. but the court nonetheless overturned the Quebec court's injunction on grounds that the law does not recognize a foetal or paternal right to stop an abortion.

Dr. Morgentaler challenged the Nova Scotia law by announcing that he had just performed seven abortions at his Halifax clinic. He was immediately charged under the provincial Medical Services Act. After seven additional charges were filed, the province obtained an injunction against his performing any more until charges against him had been heard.

The federal government introduced Bill C-43 to prohibit abortion unless a physician finds the pregnancy a threat to the woman's physical, mental or psychological health.

 

1990

The Nova Scotia Appeal Court denied CARAL the right to launch its own constitutional challenge because Dr. Morgentaler's case was already underway. The Supreme Court of Canada denied CARAL leave to appeal.

The House of Commons narrowly passed Bill C-43.

The media reported two cases of women having clandestine, illegal abortions, the first such cases in almost 20 years. One woman died

A Nova Scotia provincial court judge struck down the Medical Services Act as unconstitutional and acquitted Dr. Morgentaler of all charges. The court found that abortion law is a matter of federal, not provincial jurisdiction. The Nova Scotia government appealed this decision.

 

1991

Bill C-43, the legislation to recriminalize abortion, was defeated by the Senate. This was a significant moment in Canadian history as the Senate, whose members are appointed, is usually considered a symbolic chamber and passes bills presented to it by the House whose members are elected by the public. Abortion was now treated like any other medical procedure, governed by provincial and medical regulations.

 

1992

A firebomb destroyed the Toronto Morgentaler Clinic.

The Court of Queen's Bench of Manitoba found the province's refusal to fund abortions in clinics but not in hospitals to be discriminatory. The Manitoba government appealed the ruling.

Dr. Morgentaler initiated legal action against the governments of P.E.I. and Newfoundland for their refusal to cover clinic abortions under Medicare. Newfoundland began paying a portion of the cost of a clinic abortion.

 

1993

The Liberals returned to power under Chretien with a sizable majority and the abortion debate at the national level became almost non-existent.

The appeal division of the Supreme Court of Nova Scotia upheld the lower court decision in favour of Dr. Morgentaler. The Nova Scotia government soon launches an appeal, and on November 14 the Supreme Court of Canada agrees to hear it.

The Manitoba Court of Appeal ruled that doctors must be paid for performing abortions at the province's one abortion clinic. The Manitoba government passed the Health Services Amendment Act, which again excluded payment for non-hospital abortions.

The Supreme Court of Canada dismissed the appeal by the Nova Scotia government in Dr. Morgentaler's case, thereby confirming that the province was trying to legislate in the area of federal criminal law when it passed legislation prohibiting the performance of abortions in clinics.

 

1994

The court hearing began for Ontario's application for a public injunction to restrict anti-abortion harassment and intimidation of patients, health-care providers and their families at specific locations in the province.

Dr. Morgentaler opened an abortion clinic in Fredericton, New Brunswick The New Brunswick government invoked its Medical Services Payment Act which prohibited doctors from performing abortions outside an approved medical facility. The New Brunswick College of Physicians and Surgeons restricted Dr. Morgentaler's license to practice and  he stopped offering abortion services . The New Brunswick Court of Queen's Bench ruled that the province had no right to restrict abortions to hospitals, and that its medical legislation overstepped the legitimate powers of a province. New Brunswick appealed.

In Ontario, the court granted a temporary injunction to protect women going into clinics and specific doctors at their offices and homes in London, North Bay, Brantford, Toronto and Kingston.

British Columbia gynaecologist and abortion provider Dr. Garson Romalis was shot and seriously wounded by a sniper at his home in Vancouver.

 

1995

The New Brunswick Court of Appeal and the Supreme Court of Canada upheld the lower court ruling against the province's attempt to prohibit funding for abortions at clinics.

The P.E.I. Supreme Court ruled that the province must cover physician fees for clinic abortions for Island residents.

British Columbia's Access to Abortion Services Act became law. It set up "bubble" zones around abortion clinics, doctors' offices and doctors' homes.

Ontario gynaecologist and abortion provider Dr. Hugh Short was shot and wounded by a sniper at his home in Ancaster.

 

1996

A New Brunswick man asked the Quebec Superior Court for an injunction to stop his wife, who was vacationing in Quebec, from terminating her pregnancy. The judge rejected the request, following the 1989 Daigle ruling.

A sidewalk protester, Maurice Lewis, challenged British Columbia's Access to Abortion Services Act. The British Columbia Supreme Court convicted Lewis. Lewis appealed the decision to the British Columbia Court of Appeal but died before the case could be heard.

Jim Demers, an anti-abortion protester, was charged with breaching the bubble zone at Everywoman's Health Centre in Vancouver.

 

1997

Michael O'Malley of Campaign Life was found in contempt by the Court of Queen's Bench (Alberta) for breaching an order to stay outside the bubble zone of Calgary's Kensington Clinic. He was ordered to pay costs and forbidden from appealing the decision until they are paid.

The British Columbia Supreme Court awarded damages of $20,000 to the Elizabeth Bagshaw Society. In 1991, a group of anti-abortion protesters had attempted to "counsel" women entering the clinic. The Court did not grant a permanent injunction because the government enacted the Access to Abortion Services Act before the end of the trial.

Dr. Morgentaler challenged a P.E.I. regulation that denied payment under the province's health care plan for an abortion unless it is deemed medically necessary and performed in a hospital. The court ruled in favour of the government.

Abortion provider Dr. Jack Fainman was shot through the window of his home in the Winnipeg area.

Jim Demers was convicted of violating British Columbia's bubble zone law. He was sentenced to probation and ordered to stay away from Vancouver's abortion clinics.

 

1998

Abortion provider Dr. Barnett Slepian was killed by a sniper at his home in Buffalo, New York. There was speculation that the shooting of Dr. Slepian was very similar in style to the shootings in Canada.

Gordon Watson and Don Spratt are arrested and charged with violating the bubble zone at Everywoman's Health Clinic in Vancouver, BC.

 

1999

The British Columbia Court of Appeal upheld the bubble zone legislation for abortion clinics. A British Columbia Supreme Court judge upheld the bubble zone, challenged by Jim Demers.

 

2000

Michael O'Malley was arrested in Vancouver for challenging the bubble zone law and charged with contempt of court.

Dr. Garson Romalis was attacked for the second time and stabbed in the lobby of his office building in Vancouver.

Watson and Spratt were found guilty in British Columbia Provincial Court for violating the Access to Abortion Services Act. They appealed this decision.

 

2001

After more than two years evading capture, James Kopp was arrested in France in connection with the murder of American Dr. Barnett Slepian. He had previously been charged with the 1995 shooting of Dr. Short, a Canadian. Kopp was also wanted in connection with the shootings of Dr. Romalis, Dr. Fainman and an unidentified New York State abortion provider. He was extradited to the United States.

Anti-abortion protester Bill Whatcott lost a Charter Challenge in a Regina Municipal Court case and was fined $90 for littering after he left graphic anti-abortion leaflets at the University of Regina.

 

2002

Dr. Morgentaler wrote new federal Minister of Health Anne McLellan, urging her to force Quebec, New Brunswick, Nova Scotia, Manitoba and P.E.I. to fund abortions in clinics. Dr. Morgentaler also announced his plan to sue the Manitoba government for not funding his clinic.

Bill Whatcott, a member of the Christian Truth Activists, and four others were charged with disrupting traffic while carrying anti-abortion signs near Regina General Hospital. Charges were dropped in April.

Doctors Henry Morgentaler and Claude Paquin, two of the founding members of the Association for Access to Abortion announced that the Association was filing a motion alleging that the Government of Quebec had intentionally violated the Health Insurance Act. The AAA asked the Government to reimburse women who had had to pay for an abortion, a claim which amounted to tens of millions of dollars.

In June Planned Parenthood Regina announced that it was suing Bill Whatcott, saying he had defamed the organization and harassed its clients. The clinic sought a permanent court injunction against Whatcott to prohibit him and his associates from coming within three blocks of their building and from harassing clients. A judge refused the injunction but prohibited Whatcott from making false or defamatory statements. Whatcott was arrested in Prince Albert, BC after refusing to stop displaying graphic anti-abortion signs at an intersection during rush hour.

Alliance MP Gary Breitkrutz solicited public responses to a questionnaire asking if they wanted changes to the definition of "human being" in the Criminal Code. His motion was defeated on May 23.

Breitkreuz introduced motion M-83 in Parliament, "That the Standing Committee on Health should fully examine, study, and report to Parliament on a) whether or not abortions are medically necessary for the purpose of maintaining health, preventing disease or diagnosing or treating an injury, illness or disability; and b) the health risks for women undergoing abortions compared to women carrying their babies to full term."

Two anonymous women launch a class-action suit against the Manitoba government for its failure to pay for their abortions at the Morgentaler Clinic.

Dr. Morgentaler announces plans to sue the New Brunswick and Nova Scotia governments for not funding clinic abortions.

 

2003

Protester Jim Demers' appeal was dismissed by the British Columbia Court of Appeal. Demers appeals to the Supreme Court of Canada, which decides not to hear his appeal.

Dr. Morgentaler announced plans to sue the Manitoba government for not funding abortions at his Winnipeg clinic.

James Kopp was convicted of the murder of abortion provider Dr. Barnett Slepian and was given the maximum sentence, twenty-five years to life. In federal court, Kopp still faced felony charges that, by killing Slepian, he violated a federal law guaranteeing access to abortions.

Dr. Morgentaler sued New Brunswick for its refusal to fund clinic abortions. New Brunswick Justice Minister Brad Green vowed to defend the province's decision not to fund clinic abortions, stating the province was willing to take the issue to the Supreme Court of Canada.

A British Columbia judge found anti-abortion activist Bill Whatcott guilty of obstructing police when asked to stop displaying graphic signs in July 2002. He was fined $500 and announces he intended to appeal.

MP Garry Breitkreuz's motion M-83 was defeated by a vote of 139 to 66 in the House of Commons.

Dr. Morgentaler closed his Halifax clinic, stating he feels women in Nova Scotia can now get appropriate care at Halifax's Victoria General Hospital.

 

2004

Stephen Harper became the leader of the new Conservative party in March and a federal election was held soon after. In this election abortion resurfaced as a campaign issue, and the Liberals only won a minority. The Liberals and the NDP said that a woman has a right to choose and that this was protected by the Charter of Rights and Freedoms. Stephen Harper tried to steer clear of the abortion controversy saying he had no plans to change the country's abortion regulations.

The Liberal government fell after 18 months and another election was called in January 2006. This time the conservatives won a small minority. Again in the campaign Harper said he had no intention of changing the current regulations. However, he did not state whether he would allow a Private Member's bill to be introduced by one of his party. His election platform called for a three-year ban on funding for embryonic research and would focus on post-natal stem cell research funding opportunities.

 

2006

Anti-choice Liberal backbencher MP Paul Steckle introduced Bill C-338. This act would criminalize abortion after 20 weeks. It defined abortion as "the death of a child before it has completely proceeded from the body of its mother." The Bill passed first reading.

 

2007

NAF asked Health Canada as chair of the inter-provincial billing committee to delist abortion from the list of excluded services. It was not removed but NAF was asked to make another request in 2008.

Conservative backbencher MP Ken Epp, a well known opponent of legal abortion, introduced Bill C-484 "injuring or causing the death of an unborn child while committing an offence," commonly referred to as the Unborn Victims of Violence Bill. The Bill passed second reading and was sent to the Justice Committee. The pro-choice community mobilized to ensure the Bill would not pass third reading and become law. While Bill C-484 excludes the "lawful termination of pregnancy of the mother of the child to which the mother has consented," the bill's opponents warned that once a separate legal status was assigned to the foetus, the foundation for criminalising abortion and any behaviour deemed harmful to the foetus would be established. The pro-choice community argued that Bill C-484 was a pretext to have the "unborn child" as opposed to "foetus" used in the Criminal Code so that unborn child could then be subsequently used in a Charter challenge against abortion. The word "foetus" was replaced by "unborn child," and "pregnant woman" by "mother," throughout the bill.

Dion announced that the Liberals would block passage of Bill C-484. He said this was an attempt to reopen the abortion issue and he would not let that happen.

 

2008

Conservative backbencher Maurice Vellacott, another known anti-choice MP, introduced Bill C-537 "protection of conscience rights in the health care profession." It defines human life as "the human organism at any stage of development, beginning at fertilization or creation." This was the third time Vellacott had introduced this Bill.

In response to Bill C-484, Liberal MP Brent St. Denis introduced Bill C-543 on "abuse of pregnant women." Existing law already allows a judge to hand down a heavier sentence when there are aggravating circumstances such as the death of a foetus.

The National Association of Pharmacy Regulatory Authorities approved the emergency contraceptive pill Plan B, also known as the morning-after pill, as an over-the-counter drug across the country, except in Quebec. Canadian girls and women of any age may buy Plan B as they do Tylenol or vitamins, Quebecers still have to consult a pharmacist. The ruling made Canada, excluding Quebec, the fifth country worldwide to allow women to purchase Plan B without speaking to a pharmacist first.

Photo of Dr. Morgentaler receiving the Order of CanadaDr. Morgentaler was appointed to the Order of Canada for his commitment to increased health care options for women. The anti-choice community protested but a national public opinion poll reported that two-thirds of Canadians supported Dr. Morgentaler receiving Canada's highest honour.

The New Brunswick courts granted Dr. Henry Morgentaler public-interest standing to challenge the constitutional validity of the province's ban on payment for abortions at clinics. The province had asserted that Morgentaler did not have standing to bring the action but the judge stated that Morgentaler was "a suitable alternative person" to bring an action that women seeking abortions would be reluctant to undertake. The province appealed the court's decision.

Federal Justice Minister Rob Nicholson announced that the government will draft a new bill to replace Bill C-484, the Unborn Victims of Violence bill; this closes the debate about foetal rights and focuses instead on penalizing criminals who harm pregnant women.

The British Columbia appeal of Spratt and Watson was dismissed on grounds that while the impugned sections violated the appellants' right to freedom of expression, the sections were a reasonable limit on that freedom demonstrably justified in a free and democratic society.

The Conservative minority government of Stephan Harper called a federal election for October 14, 2008. The Conservatives won another minority government. Harper again said he had no plans to reopen the abortion question.

The University of Calgary Campus Pro-Life group planned to put up giant posters showing aborted foetuses and comparing abortion to the Holocaust, the Ku Klux Klan, and the genocide in Rwanda, as it had done since 2005. The University asked the group to make the posters less visible, citing safety concerns. When they refused to comply, the school threatened legal action for trespass.

 

2009

The Appeals Court of New Brunswick upheld the lower court's decision that Dr. Henry Morgentaler can sue the Government of New Brunswick to fund abortions at his clinic in Fredericton.

The pro-life group at the University of Calgary defied the university's request to turn graphic images inwards; three people were charged with trespassing.

Dr. George Tiller was shot and killed in Wichita, Kansas, as he was serving as an usher at his Church on Sunday morning. Many Canadian clinics referred to Dr. Tiller and he helped Canadian women who could not find the care they needed in Canada.

The Supreme Court of Canada declined to hear a challenge by Donald David Spratt. Its decision upholds the Access to Abortion Services Act in British Columbia which makes it a crime to protest or interfere with a patient or doctor within a clinic's so-called "bubble zone."

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