|In 1869, abortion was completely banned in Canada. In 1892, the Parliament enacted the Criminal Code of Canada, which criminalized the distribution and advertisement of contraceptives. Abortion became recognized as a crime punishable by life imprisonment and the use or sale of contraceptives became an indictable offence that was punishable by a two-year term in prison.|
Illegal and clandestine abortions were performed and lead to the deaths of many women every year. It is very difficult to evaluate the rate of illegal abortion because they were done away from public attention. Only a small percentage of cases would ever come to the attention of the authorities. Angus McLaren and Arlene Tigar McLaren estimate that between 4,000 and 6,000 Canadian women passed away from illegal abortion between 1926 and 1947. (McLaren 1986) Different sources have estimated that prior to 1969 there had been at least 120,000 illegal abortions performed every year. (Childbirth by Choice Trust, 1998).
Canadians had to wait until 1969 to see a change in the restrictive law against reproductive freedom. In 1967, Justice Minister Pierre Trudeau introduced an “amendment to Section 251 of the Canadian Criminal Code”, which aimed at allowing abortions when the health of the mother was in danger. A Therapeutic Abortion Committee, made up of three doctors, was responsible to decide whether the health of the pregnant woman was at risk and if she should be allowed to have an abortion. However, even with a new law that made exceptions to the illegality of abortion, it still remained in the Criminal Code of Canada. Women often had to wait up to 8 weeks for an abortion. Despite the new law, hospitals were not required to have a Therapeutic Abortion Committee or to offer any abortions services. What services a hospital offered was up to the hospital board. The law could be interpreted in many ways and was therefore implemented differently from province to province and from hospital to hospital. Legal abortions became available only to a small number of women who lived in some certain parts of Canada. To the majority of Canadian women, especially for women outside of major cities, abortion services remained inaccessible.
In 1969, Dr. Henry Morgentaler denounced the law by providing safe abortions that had not been approved by a Therapeutic Abortion Committee in his private clinic in Montreal. Initially, he did not want to break the law but he could not stand the suffering and desperation of women who were being forced to carry their pregnancies to term. Knowing that without access women would resort to unsafe abortion methods, he finally gave in to their pleas for help and began to perform safe abortions in his clinic. In 1973, Morgentaler made a public statement admitting that although they were illegal he had performed over 5,000 abortions. This was the beginning of a legal battle that lasted over fifteen years.
The Quebec government took Dr. Morgentaler to court twice, charging him with conspiracy to perform an abortion. Both times the juries refused to convict him even though he admitted to having performed the procedure. The government appealed the decision and the appeal court overturned the jury's verdict. Morgentaler was sentenced to 18 months in jail. A public outcry followed and the federal government allowed a law to be passed that prevented appeal courts from overturning the verdict of a jury.
The court noted that Canada’s abortion law was a breach of the woman's right to security of the person, which is guaranteed under the Canada's Charter of Rights and Freedoms. The right to liberty contained in Section 7 of the Charter of Rights and Freedoms guarantees to every individual a degree of personal autonomy over important decisions intimately affecting her/his private life and the Court recognized that a woman's capacity to reproduce is subject to her own control. Finally, the Supreme Court announced the decision that under Canadian law a fetus has no inherent right to life and has no legal protection as a person until it is born alive. This decision, referred to as the Morgentaler decision, decriminalized abortion.
|Morgentaler's struggle prompted a nation-wide movement to reform Canada's abortion laws. In 1970, a group of independent feminists organized a caravan that traveled across Canada to demand the legalization of abortion and to oppose the restrictions imposed by Section 251 of the Criminal Code. When the group reached Ottawa for a two-day demonstration, the Abortion Caravan was made up of more than 500 women. Thirty-five women chained themselves to the parliamentary gallery in the House of Commons, closing parliament for the first time in Canadian history.|
Upon his release from prison in Quebec, Morgentaler decided to challenge the law in other provinces. Over the next 15 years, he opened and operated private abortion clinics across the country in direct violation of the law. In 1984, another appeal from the federal government found Morgentaler to be guilty under the Criminal Code.
In response to this appeal Morgentaler, in turn, appealed to the Supreme Court of Canada. On January 28th, 1988 the Court declared the country's abortion law to be unconstitutional because they infringed upon a woman's right to "life, liberty and security of the person".
Upon the Morgentaler decision of 1988, the Supreme Court encouraged the government to introduce a new and improved law regarding abortion rights. The government of Prime Minister Brian Mulroney attempted to pass a law that threatened doctors with a two-year jail term if they approved an abortion when the mother's health was not in severe danger. The bill was approved by the House of Commons but defeated by the Senate in 1991. Following this failure, the government decided to stop trying to legislate abortion. To this day, Canada has no abortion law whatsoever. Canada is now one amongst a small number of countries without a law restricting abortion. Since 1988, abortion is considered a private medical matter between a woman and her doctor. The woman and her fetus are considered one and the same under the law.
The case of Chantale Daigle was also highly publicized. Daigle’s ex-boyfriend obtained an injunction that aimed to prevent her from having an abortion. This case went to the Supreme Court in 1989 when it was ruled that fathers had no legal say in a woman’s choice to have an abortion or to continue a pregnancy to term.
R. v. Morgentaler,  1 S.C.R. 30
Tremblay v. Daigle,  2 S.C.R. 530