Dalhousie Law Journal


abortion, Canada, law, Supreme Court of Canada, Canadian Charter of Rights and Freedoms, women, Bill C-43, rights, Prince Edward Island, Newfoundland, reproductive choice


Canada's newest abortion legislation, embodied in Bill C-43, was defeated in the Senate on January 31st, 1991. The Bill sought to remedy the state of "lawlessness" which has existed respecting abortion ever since the decision reached by the Supreme Court of Canada in R. v. Morgentaler in January, 1988. However, this determination is incorrect. The law is quite clear: there is no criminal prohibition against abortion in Canada. This follows directly from the Court's holding in the Morgentaler decision that the old law, s. 287 (formerly s.251) of the Criminal Code, infringed a woman's right to security and liberty of the person under s.7 of the Charter of Rights and Freedoms. With the striking down of s.251, Canadian women now have a liberty, or negative right to control their reproductive capacities. What they lack is a claim, or positive right of access to safe, subsidized and efficient abortion facilities. Thus, in our eyes, and in the eyes of two thirds of Canadian women, the only lacuna in the existing law is the absence of law, which in turn creates an obligation on all Provincial governments to provide such facilities to ensure to all women in Canada equal availability to access to abortion services regardless of their Province of residence. Bill C-43 certainly did not fill this gap. But until it is filled, the "right" to abortion conferred as a consequence of the Morgentaler decision is an empty and bitter one to those women living in Prince Edward Island, Newfoundland and in other isolated regions of Canada where no hospitals allow abortions to be performed, or where women must travel great distances to gain access to the available provincial facilities. The defeated Bill C- 43 merely recriminalized the exercise of the right of reproductive choice, thus limiting women's right to reproductive control, and did nothing to cure the real problem. It was therefore retrogressive and insupportable.