Morgentaler performed an abortion in his private clinic, which is not a hospital. He is fully qualified to perform abortions in hospitals. Section 287 of the Code prohibits people from performing abortions. It was deemed unconstitutional before this case; however it has not been removed from the Code because Parliament was afraid of the political ramifications.
- Does the province have jurisdiction to bring this case to the courts?
Judgment for the defendant.
The Crown argued that Morgentaler's actions are regulated by ss. 92(7), 92(13) and 92(16) of the Constitution Act, 1867, and are therefore under provincial jurisdiction. They call an administrator of the Department of Health as a witness who states that the entire purpose of the Medical Services Act is to prevent a two-tiered healthcare system in Nova Scotia.
Kennedy does not accept this argument. He looks to s.287 of the Code which clearly discusses the issue of abortion. Kennedy believes that the fact that Parliament included abortion in the Code indicates that it is to be governed by federal jurisdiction. Therefore, as this case obviously deals with abortion as the main issue, the Province of Nova Scotia does not have the authority to bring this case forward.
- If an issue falls outside of your jurisdiction, then you have no authority to bring cases dealing with it to court.
- The Constitution trumps all other laws, as per s.52(1) of the Constitution Act, 1982.