• The appellants, all qualified doctors, set up a clinic to perform abortions for women who had not obtained a certificate from a therapeutic abortion committee of an accredited or approved hospital as required by s.251(4) of the Code (now s.287(4)). The doctors were charged with violating the Code by attempting to procure abortions. The section was deemed unconstitutional at trial, but overturned on appeal.
  • Dr. Morgentaler had performed illegal abortion in both Ontario and Quebec, prior to and after 1982. He had been arrested multiple times but was almost always acquitted by juries.
  • Morgentaler challenged that this violated a women's right to Security of the Person under section 7 of the Charter of rights and Freedoms.


1. Whether s. 251 of the Criminal Code violates the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Charter.

2. If such a violation occurs, whether it is justifiable under s. 1 of the Charter.

3. Whether s. 251 of the Criminal Code is ultra vires the Parliament of Canada.

4. Whether s. 251 of the Criminal Code violates s. 96 of the Constitution Act, 1867.

5. Whether s. 251 of the Criminal Code unlawfully delegates federal criminal power to provincial Ministers of Health or Therapeutic Abortion Committees and, as such, whether the Federal Government has abdicated its authority in this area.

6. Whether ss. 605 and 610(3) of the Criminal Code violates the rights and freedoms guaranteed by ss. 7, 11(d), 11(f), 11(h), and 24(1) of the Charter.

7. If such a violation occurs, whether it is justifiable under s. 1 of the Charter


Appeal allowed with 5-2 in favour, McIntyre and La Forest JJ dissenting.

Reasoning Edit

Dickson determines that a woman's s.7 rights to security of person were infringed upon by the section, mainly because of the dangers associated with the various procedures that people go through because they cannot get abortions in hospitals. He also says that the mental anguish caused violated the Charter, which was a new idea.

After it has been determined that the section was infringed upon, it must be determined if it was done in accordance with the principles of fundamental justice under s.1. The Crown fails to prove that the principle is reasonably justified in Canada because it leads to arbitrary medical standards across the country. Therefore, the infringement is not saved by s.1.

The court struck the offending section from the Code as arbitrary and unconstitutional. The court is careful to explain that this decision is not about the permissiveness of abortions in general, but rather only whether the government's chosen method of prohibiting abortion violates the Charter.

Wilson found that the Code provision violated women's rights to liberty, rather than security of person, and concurred with the majority's opinion.


  • Section 251 of the Code (now s.287) violates a woman's right to security of person, and thus is of no force or effect.
  • Arbitrariness in medical standards is not reasonably justified

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