The procedures created in s. It was not necessary to determine whether s. The principles of fundamental justice are to be found in the basic tenets of the Canadian legal system. One of the basic tenets of the system of criminal justice is that, when Parliament creates a defence to a criminal charge, the defence should not be illusory, or so difficult to attain as to be practically illusory.
Here, the administrative structures and procedures established by s. Per Beetz J. Estey J. If an Act of Parliament, as here, forces a pregnant woman whose life or health is in danger to choose between the commission of a crime to obtain effective and timely medical treatment and, on the other hand, inadequate treatment or no treatment at all, her right to security of the person has been violated.
According to the evidence, the procedural requirements of s. This deprivation does not accord with the principles of fundamental justice. While Parliament is justified in requiring a reliable, independent and medically sound opinion as to the life or health of the pregnant woman in order to protect the state interest in the foetus, and while any such statutory mechanism will inevitably result in some delay, certain of the procedural requirements of s.
They were unnecessary in respect of Parliament's objectives in establishing the administrative structure and resulted in additional risks to the health of pregnant women. Per Wilson J. Section of the Criminal Code, which limits the pregnant woman's access to abortion, violates her right to life, liberty and security of the person within the meaning of s. The right to "liberty" contained in s.
Liberty in a free and democratic society does not require the state to approve such decisions, but it does require the state to respect them. A woman's decision to terminate her pregnancy falls within this protected class of decisions, as it will have profound psychological, economic and social consequences for her. It is a decision that deeply reflects the way the woman thinks about herself and her relationship to others and to society at large. It is not just a medical decision; it is a profound social and ethical decision as well.
The right to reproduce or not to reproduce is properly perceived as an integral part of a modern woman's struggle to assert her dignity and worth as a human being. Section takes a personal and private decision away from the woman and gives it to a committee which bases its decision on criteria entirely unrelated to the pregnant woman's priorities and aspirations.
Section also deprives a pregnant woman of her right to security of the person under s. This right protects both the physical and the psychological integrity of the individual. Section is more deeply flawed than just subjecting women to considerable emotional stress and unnecessary physical risk. It asserts that the woman's capacity to reproduce is to be subject, not to her own control, but to that of the state.
This is a direct interference with the woman's physical "person". This violation of s. The decision whether to terminate a pregnancy is essentially a moral decision, a matter of conscience.
In a free and democratic society, freedom of conscience and religion should be broadly construed to extend to conscientiously-held beliefs, whether grounded in religion or in a secular morality. Here, the legislation, by making it a criminal offence for the pregnant woman to exercise one of her options, was not only endorsing but also enforcing, on pain of a further loss of liberty through actual imprisonment, one conscientiously-held view at the expense of another.
To deny freedom of conscience to some, to treat them as a means to an end, was to deprive them of their essential humanity. If sections and 3 of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by ss. The first constitutional question should be answered in the affirmative as regards s. The third, fourth and fifth constitutional questions should be answered in the negative. The sixth constitutional question should be answered in the negative with respect to s.
The seventh constitutional question should not be answered. Per Dickson C. Those interests may only be impaired if the principles of fundamental justice are respected. It was sufficient here to investigate whether or not the impugned legislative provisions met the procedural standards of fundamental justice and the Court accordingly did not need to tread the fine line between substantive review and the adjudication of public policy.
State interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitutes a breach of security of the person. Section clearly interferes with a woman's physical and bodily integrity. Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference page 33 with a woman's body and thus an infringement of security of the person.
A second breach of the right to security of the person occurs independently as a result of the delay in obtaining therapeutic abortions caused by the mandatory procedures of s. The harm to the psychological integrity of women seeking abortions was also clearly established. Any infringement of the right to life, liberty and security of the person must comport with the principles of fundamental justice.
These principles are to be found in the basic tenets of our legal system. One of the basic tenets of our system of criminal justice is that when Parliament creates a defence to a criminal charge, the defence should not be illusory or so difficult to attain as to be practically illusory. The procedure and restrictions stipulated in s. A therapeutic abortion may be approved by a "therapeutic abortion committee" of an "accredited or approved hospital". The requirement of s.
The restrictions attaching to the term "accredited" automatically disqualifies many Canadian hospitals from undertaking therapeutic abortions. The provincial approval of a hospital for the purpose of performing therapeutic abortions further restricts the number of hospitals offering this procedure. Even if a hospital is eligible to create a therapeutic abortion committee, there is no requirement in s. Provincial regulation as well can heavily restrict or even deny the practical availability of the exculpatory provisions of s.
The administrative system established in s.
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