The week before Christmas, in 1985, a panel of the Saskatchewan Court of Appeal sat for arguments in two cases involving the intersection of abortion regulation and the Constitution. For the first three days, the Court heard from Joe Borowski’s lawyer who claimed that s. 7 of the Charter Footnote 1 protected a fetal right to life. On Thursday, the Court heard arguments on the constitutionality of Bill 53, The Freedom of Informed Choice (Abortions) Act,Footnote 2 a private member’s bill which had been referred from second reading in the Legislative Assembly to the Court for an advisory opinionFootnote 3 as to potential C harter and federalism defects. Government-appointed counsel Tom Gauley argued that Bill 53 violated women’s Charter rights and also exceeded provincial jurisdiction over health under s. 92 of the Constitution Act, 1867. Footnote 4 The next day, the Court released its decision finding the province lacked authority under s. 92 to enact such legislation. Borowski’s arguments were also rejected by the Court eighteen months later.Footnote 5 For most appellate justices, their entire tenure will pass without a single case on abortion rights, so it is exceptional the panel heard two such cases in one week. The paths of these cases diverged, however, in the months that followed. Borowski was appealed to the Supreme Court, while the advisory opinion was not; Borowski has received popular and scholarly attention, whereas the reference has largely disappeared from popular memory, garnering only a handful of academic and legal citations. As an early Charter case on a contentious issue, the reference had the ingredients to be publicly and legally impactful, like its brethren Borowski and Morgentaler. The Court’s opinion, finding the Bill invalid on federalism rather than Charter grounds, likely muted its impact, as did the fact that the government did not appeal the ruling to the Supreme Court.
This paper brings Bill 53 out from the shadows of its well-known cousins, tracing the Bill’s journey from drafting at an American law firm to debate in the Legislative Assembly to eventual demise at the Court of Appeal. Not only is Bill 53 an overlooked piece of Saskatchewan legal history, it is unique in Canada, one of a handful of provincial-level legislative attempts to restrict access to abortion challenged in court and the only one blocked by a reference proceeding.Footnote 6 This account of Bill 53 focuses a lens on early Charter decision-making, both political and judicial, and reveals how the Bill’s journey was shaped by tensions inherent in constitutionalism, democracy, and the separation of powers.
The paper begins by reviewing the history of abortion restriction in this country and setting the legal and political context in which the Bill was introduced, namely a time of activism reflecting dissatisfaction with the halfway position introduced by the Criminal Code Footnote 7 amendment fifteen years earlier. Next, the debates at the legislative assembly are discussed, as is the decision to send the Bill for a reference following second reading, a choice seemingly intended to avoid political backlash by offloading the controversial issue to the judiciary.Footnote 8 The content of the Bill is reviewed, and the influence of American sources on the Bill’s drafting is explored. Finally, the Court of Appeal’s decision is reviewed, and the implications for future provincial regulation of abortion—namely, the limited capacity of provinces to legislate in this area—are highlighted.
II. Canada, 1985: Abortion Regulation at a Constitutional Crossroads
This section of the paper briefly reviews the history of abortion regulation in Canada, focusing particularly on the 1969 reform, the introduction of the Charter, and the parallel journeys of Borowski and Morgentaler,Footnote 9 to illustrate the historical and legal context in which Bill 53 was considered. A description of Bill 53’s introduction and the corresponding debate in the Legislative Assembly concludes this part.
The first statutes prohibiting abortion were enacted in Canada and in the United Kingdom in the early 19th century.Footnote 10 Prior to this, at common law, abortions performed before quickening were not criminal.Footnote 11 Legislation in the latter half of the 19th century increasingly restricted the practice,Footnote 12 and shortly after Confederation, the federal government enacted An Act respecting Offences against the Person, which prohibited the provision and receipt of abortion as well as the supply of material used to cause abortions.Footnote 13 That prohibition was included in the 1892 Criminal Code and in its subsequent revisions.Footnote 14
In 1969, Parliament introduced a narrow exception to the Criminal Code prohibition. The reform efforts were led by physicians who feared prosecution given legal uncertainty about when abortions could be performed if needed to preserve the health of pregnant women.Footnote 15 The discussion at the time was couched in “a discourse of medicalization, which focused on the practical needs of doctors.”Footnote 16 Under the new regime, women seeking abortions could apply to “therapeutic abortion committees” (TACs) for approval, which TACs were authorized to grant if the woman’s health was “endanger[ed]” by continuation of the pregnancy.Footnote 17 While the 1969 reform is sometimes described as decriminalization, abortion generally remained criminal, attracting significant penalties for those who acted outside the TAC framework.Footnote 18 The amendment has been described as “a political compromise” that attempted to placate both anti-abortion and pro-choice groups while providing clarity and guidance to physicians, but it also—perhaps most importantly from the perspective of the federal government—took abortion off the federal legislative agenda and shifted enforcement to the provinces.Footnote 19
The TAC regime operated dismally in practice. The “health” criterion was inconsistently applied across the country, the system was plagued by delays, and, as a result, many women were unable to access abortion in a timely manner.Footnote 20 Feminist groups, which had largely not been involved in the 1969 reform, were critical of the new regime and its continued restrictions, and they organized against it.Footnote 21
Shortly after the reforms were implemented, Dr. Morgentaler was charged for performing abortions without TAC approval. His acquittal by a Montreal jury was overturned on appeal, and his conviction upheld by the Supreme Court in 1975.Footnote 22 His clinic continued, however, and subsequent attempts at prosecution ended in jury acquittals, leading the Quebec Attorney General to end its efforts to prosecute him.Footnote 23
At around the same time, anti-abortion campaigner Joe Borowski had joined forces with Regina-based lawyer Morris Shumiatcher to launch an independent challenge to the 1969 amendment in court. In a claim filed in Regina Queen’s Bench in September 1978, they argued the Bill of Rights Footnote 24 protected a fetal right to life and sought to enjoin public funding of abortions.Footnote 25 Preliminary questions regarding jurisdiction and standing took the case to the Supreme Court, which ruled in Borowski’s favour in 1981, setting the stage for the claim to finally come to trial.Footnote 26
Both uncertainty and potential were introduced with the Charter in April 1982. Unlike the 1969 Criminal Code amendment, the Charter was substantively impacted by the work and lobbying of women’s groups.Footnote 27 However, the drafters refused to include in the Charter either a right to abortion or a right of the fetus to life, despite requests from feminist groups and anti-abortion groups, respectively.Footnote 28 The government insisted that the document was “scrupulously neutral” on the abortion question and its language could not be interpreted as encompassing any rights that would decide the matter one way or another.Footnote 29 Others, however, anticipated the Charter’s potential impact. For example, in an article published in 1982, Professor Friedland observed that s. 7 provided ammunition for both sides to challenge the existing law in court.Footnote 30
With the support of feminist organizers, Morgentaler opened abortion clinics in Toronto and Winnipeg, with an eye to an eventual Charter challenge, “hop[ing] that the Charter would serve as a catalyst for more aggressive judicial review of Canada’s abortion law.”Footnote 31 In short order, the clinics were raided by police, Morgentaler was charged, and his trial set to proceed in Ontario.Footnote 32 His lawyer brought a pre-trial application, asking the judge to declare s. 251 unconstitutional.Footnote 33 The judge rejected the application and the matter proceeded to trial before a jury, ending with an acquittal that was then appealed by the Crown.Footnote 34 The Ontario Court of Appeal—which released its decision on October 1, 1985, a month and a half before Bill 53 was before the Saskatchewan Court of Appeal—rejected the argument that the Charter protected a woman’s right to an abortion and allowed the Crown’s appeal.Footnote 35 Morgentaler filed his notice of appeal with the Supreme Court two weeks later.Footnote 36
Meanwhile, in Saskatchewan, Borowski had amended his arguments to claim that s. 7 of the Charter encompassed a fetal right to life. At trial, Shumiatcher called medical experts from around the world to testify on fetal development, with the intention of demonstrating that recent medical advancements confirmed that the fetus was a biologically distinct being from its mother right from the time of conception.Footnote 37 In October 1983, Justice Matheson rejected Borowski’s claim. While largely accepting the medical evidence, he found it unhelpful to the legal question of whether fetuses had rights, a question he answered in the negative.Footnote 38 Borowski appealed to the Saskatchewan Court of Appeal. His case was heard December 16–18, 1985, the same week the Court heard arguments on the constitutionality of Bill 53.Footnote 39
While much of the above discussion has addressed the national picture in the lead up to the reference, it is also important to appreciate the provincial context in which the Bill arose—especially a provincial government that was described at the time as “openly hostile to abortion.”Footnote 40 Premier Grant Devine was adamant that Morgentaler would not be permitted to open a clinic in the province.Footnote 41 Members of caucus, including the Premier and Health Minister Graham Taylor, were vocally pro-life.Footnote 42 The government paid the Saskatchewan Pro-Life Association tens of thousands of dollars in the mid-1980s to develop abstinence-only and anti-abortion education programs for high school students, becoming the “first administration in Canada to support the right-to-life movement with public money.”Footnote 43 The rate of abortion dropped in the province in the early- to mid-1980s, a decline the Premier attributed to the government’s “strong public stance against abortions.”Footnote 44 Others, however, have attributed it to restricted access, rather than reduced demand, leading many women to seek assistance outside the province.Footnote 45
According to polls from the time, support for legalization of abortion was lower in Saskatchewan than in the country generally. For example, in a 1984 poll, just over a quarter of Saskatchewan respondents supported decriminalizing abortion while half opposed such a move, compared with 46% of Canadians in favour of decriminalization and 43% opposed (the remaining respondents either did not know or declined to answer).Footnote 46
Against this national and provincial backdrop, Progressive Conservative backbencher and first-time member of the legislative assembly (MLA) Gay Caswell introduced Bill 53 in the Legislative Assembly on April 23, 1985.Footnote 47 While Bill 53 was a private member’s bill, Caswell believed it was widely supported by her party, including by members of cabinet, and she was certain that it had the support to pass had it gone to a vote.Footnote 48 Publicly available documents like Hansard and newspapers from the time indicate that the Bill had some support among MLAs, though the exact degree is hard to gauge. The day after the Bill was introduced, Premier Grant Devine was quoted in the Regina Leader-Post as “support[ing] the concept,” but he added a caveat: “I won’t say I support every inch of the bill.”Footnote 49 A handful of MLAs spoke in favour of the Bill at second reading, but neither the Minister of Health nor the Premier was among them.Footnote 50 It is possible the Bill had extensive support behind closed doors, but that support never materialized into the government adopting the Bill as its own.
While the Bill had some public support,Footnote 51 it also had vocal critics, including several academics who spoke out against it. Law professor Howard McConnell noted its “constitutional hazards,”Footnote 52 while professors Eric Colvin and Donna Greschner called it “an outrageous violation of the Constitution,”Footnote 53 and Jennie Abell, writing on behalf of the National Association of Women and Law, described the Bill and its assumptions as “offensive,” “paternalistic,” and “fascis[t].”Footnote 54 Pro-choice groups also rallied against the Bill, calling for Minister of Health Graham Taylor to resign.Footnote 55 The Bill—and its supporters and detractors—received a fair amount of media attention in the two major provincial newspapers, priming the pump for a dramatic flare-up over abortion which some members of the governing party likely wished to avoid.
Second reading of the Bill began on May 21, 1985, and continued three weeks later, on June 11, 1985. On May 21, Caswell’s speech was pre-empted by sustained applause from dozens of supporters in the gallery,Footnote 56 prompting the speaker to remind the public that “participation is by elected members.”Footnote 57 Caswell’s speech leaned in to the idea that the Bill was essentially reiterating well-established and non-controversial informed consent requirements. She spoke at length about ostensible physical and psychological risks associated with abortion, drawing on medical and anecdotal sources.Footnote 58 Noting that informed consent was required for other medical procedures and for risky activities, she saw no reason why it would not be required in this context as well.Footnote 59 She urged: “whatever position you are, whether you call yourself pro-life or pro-choice, or whatever you can, you can’t really legitimately argue against information.”Footnote 60 Her efforts to cast Bill 53 as one dealing purely with medical information were echoed by other MLAs who spoke in support of the proposed legislation. For example, Weiman stated:
This Bill’s whole thrust is to inform women in our society of those risks that are involved when you choose that route of termination. The Bill asks very plainly and very succinctly that every woman should have the right to know the physiological and the anatomical characteristics of the unborn child, should she go that route … [I]t is a Bill of information, education, and, I might add, health.Footnote 61
Similarly, Minister of Social Services Gordon Dirks denied that the Bill would restrict abortion, asking rhetorically, “how can information limit access to abortion?”Footnote 62
While downplaying the moral dimensions of Bill 53, the MLAs acknowledged the moral dimensions of abortion. For example, Caswell observed:
The law clearly still is on the side of life. … [W]e obviously don’t have a law that says that abortion and taking a pregnancy to term are neutral factors. We do not have abortion on demand that says one choice is as good as another and we are morally neutral. The Criminal Code says that abortion is illegal except for certain restrictions.Footnote 63
Others referenced the state’s interest in the fetus and in promoting human life.Footnote 64 The Bill’s supporters made little mention of women’s rights, an omission that New Democratic Party (NDP) MLA Ned Shillington drew attention to when he noted:
While the proponents of this Bill would like to say it’s a Bill about abortion, it is in fact a Bill about human rights, the rights of women … No one would quarrel with the role which has been enunciated in a sense for the Bill, and that is that all consent should be free and fully informed. No one suggests it should be otherwise. … It is our position however that this Bill doesn’t accomplish that, doesn’t contribute to it, and is offensive on the grounds of human rights.Footnote 65
Minister Dirks, who rose to speak in favour of the Bill, noted that “because of the sensitive and potentially divisive nature of this legislation,” it would be desirable to have an advisory opinion from the Court of Appeal on its constitutionality.Footnote 66 Minister of Justice Gary Lane then spoke at length about potential constitutional concerns and stated that a reference was “a responsible way to deal with this legally difficult issue.”Footnote 67 MLAs voted unanimously to send it to the Court of Appeal for an advisory opinion.Footnote 68
Shillington observed that the procedure was “most unusual,” as the government had made no effort to rectify potential constitutional infirmities as one might usually expect for a bill that a government was serious about passing.Footnote 69 He added, “I think the Bill is therefore dead. I would have felt better if the members of the Assembly had voted in that fashion, instead of accomplishing the same thing in this oblique fashion.”Footnote 70
Apparently, the idea to send the Bill for a reference was rather last minute, and Caswell was informed of the plan only a few hours prior to the vote.Footnote 71 She was surprised by the change in direction as, based on earlier discussions with colleagues, she had believed the Bill would make it to a vote that day.Footnote 72 The Health Minister had also reportedly told interested parties that the Bill was expected to pass.Footnote 73
What should one make of Bill 53’s unusual journey? Why send it for a reference without first going through committee, amending it, or voting on it? It may be that the reference was a genuine request for assistance on a tricky legal issue.Footnote 74 After all, the Charter had limited government legislative capacity in ways that were still unclear, and American jurisprudence and academic commentary certainly supported the notion that abortion regulation would be vulnerable to Charter attack. On the federalism question, the boundary between criminal law and health law powers was murky (and remains soFootnote 75). Thus, a cautious government may have wanted to avoid the costs of enacting and implementing politically controversial legislation, only to see it struck down shortly thereafter. But, governments have sometimes been known to use the reference power “to avoid ‘hot potatoes.’”Footnote 76 This is also a plausible read of the government’s actions. Instead of holding a vote and taking a side on a polarizing bill, the government could be seen to be doing something on abortion, without having to commit to any particular policy. It allowed Devine to state a few weeks later in correspondence with a Saskatchewan resident unhappy with the decision to send the Bill for a reference, “This government remains fully committed to reducing the number of abortions in Saskatchewan … I fully support the principles of Mrs. Caswell’s bill, I also recognize the need to proceed on a firm constitutional footing.”Footnote 77
Devine and other MLAs could maintain a pro-life stance without having to bear the political costs of controversial legislation and off-load the political question by turning it into a legal matter for the judiciary.Footnote 78
Thus, in the second half of 1985, the Saskatchewan Court of Appeal became set on two counts—Borowski and Bill 53—to wade into a national conversation on abortion, the rights of women, and the rights of fetuses, and the limits of government legislative authority. The Charter’s potential was about to crystalize: the Saskatchewan Court of Appeal found itself at a constitutional crossroads that could impact the future of abortion regulation in Canada.
III. Bill 53: Content and Connection to American Laws
Bill 53 had two main components: the bulk of it introduced new consent requirements, and the remaining provisions created mandatory reporting requirements for physicians and TACs. The new consent requirements—third-party consent, mandated information, and forty-eight-hour waiting period—did not apply in life-threatening, urgent circumstances.Footnote 79 The consent and reporting elements of the Bill are detailed below, followed by a discussion tracing the Bill’s origins to American legislation.
First, the Bill prohibited physicians from performing, and TACs from approving, abortions for married women or minors without the consent of their husbands or parents, respectively.Footnote 80 The spousal consent requirement would have aligned the law with existing TAC practice, formalizing a widespread but informal requirement that spousal consent be obtained as a condition of approval.Footnote 81 The Badgley report, released in 1977, found that, nationally, nearly 70% of hospitals required a husband’s consent prior to the procedure; that number was lower in Saskatchewan, at 50%.Footnote 82 The provision requiring parental consent for “financially dependent”Footnote 83 minors seeking abortions also mirrored TAC practice in the province.Footnote 84 The Bill empowered judges to waive this requirement if a woman’s life was endangered by continuing the pregnancy or if the third party could not “be located after a reasonable search.”Footnote 85 However, a waiver was not available in cases of estrangement or abuse. Accordingly, a woman, estranged from her abusive husband but not yet divorced, living with and pregnant by another man, would be required to obtain permission from her abusive spouse to abort a fetus that was not biologically related to him (the Bill did not require the consent of the fetus’s biological father). For comparison, less than 20% of TACs at the time required a husband’s consent if the parties were separated, according to one survey.Footnote 86
Bill 53 also required that certain information be given to a woman (and her husband or parents, if their consent were required) prior to consent being obtained.Footnote 87 This information included the gestational age of the fetus; an explanation of the procedure and health risks associated with it; alternatives to abortion; and a “detailed description” of the fetus (for example, its “appearance” and “brain and heart functions”).Footnote 88 This sort of provision has been alternatively described as “mandatory counselling”;Footnote 89 “informed consent”;Footnote 90 “women’s right to know laws”;Footnote 91 and a mandated “script”Footnote 92. While Bill 53 and its supporters in the Legislative Assembly adopted the language of “informed consent,” it is worth noting that the Bill likely reached beyond the common law governing informed consent to medical treatment. The responsibility of physicians under the common law was described by the Supreme Court in Hopp v Lepp:
[I]n obtaining the consent of a patient for the performance upon him of a surgical operation, a surgeon, generally, should answer any specific questions posed by the patient as to the risks involved and should, without being questioned, disclose to him the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation.Footnote 93
In other words, the common law by this time required that a physician disclose information about the nature of the procedure and associated risks in order for a patient’s consent to be sufficiently informed and thus legally valid. Thus, the Bill’s requirement that a woman be informed of the nature of the procedure and its risks, being coextensive with common law requirements, was functionally unnecessary, as this information was already mandated by law. However, the Bill also required that women be provided with a “detailed description” of the fetus and community supports that would assist them in taking their pregnancies to term. This information was not required by common law and would have constituted an expansion of information that must be provided. The term “informed consent” to describe this sort of legislation can be a convenient short-hand, but it also risks confusing the common law requirements of informed consent with the additional information required by this type of legislation, which is concerning given that studies from the United States have found that these sorts of provisions are often used to mandate the sharing of medically incorrect or misleading information. For example, a study published in 2016 found that essentially a third of this legally mandated information shared in American states was not accurate.Footnote 94
Finally, the reporting obligations required physicians and TACs to advise the Minister of Health of certain information regarding patients and the procedure, including “the medical basis for approving each therapeutic abortion” and “the age and marital status of each woman.”Footnote 95 From that information, the Minister would compile and share an annual statistical update of abortions occurring in the province.Footnote 96
It is important to remember that the TAC regime was still in operation at this time, so, had the Bill become law, a woman seeking an abortion would have been required to go through the TAC process and also meet the consent requirements of Bill 53 before she could receive an abortion. One issue, which would become a contentious (and in fact decisive) matter at the Court of Appeal, was whether the Bill imposed additional requirements such that it ultimately restricted access to the TAC regime.
While unique in Canada, Bill 53 did have comparator legislation, found south of the border. The sorts of requirements found in Bill 53 were also found in several American states at the timeFootnote 97 and, indeed, by 1985, some version of every one of the Bill’s components had received constitutional scrutiny by the American Supreme Court. That Court found spousal and parental consents unconstitutional in 1976Footnote 98 but upheld a law requiring parental notification in the case of dependent minors in 1981.Footnote 99 It upheld reporting requirements in 1976.Footnote 100 And, in 1983, the Court released its decision in City of Akron, striking down both a mandatory counselling provision and a twenty-four-hour waiting period.Footnote 101
Caswell confirmed that the Bill drew on American sources for inspiration.Footnote 102 Indeed, she was first inspired by the Akron, Ohio, ordinance which had been enacted by the City of Akron in 1978 (and was later found in large part to be unconstitutional by the American Supreme Court in 1983).Footnote 103 She then contacted Americans United for Life, an anti-abortion legal policy group based in Washington, DC, which worked with her in drafting the Bill.Footnote 104 Americans United for Life, which was founded in 1971 and continues to operate today, assists legislators in drafting, enacting, and defending abortion regulation.Footnote 105 Legislative counsel responsible for aiding private members in drafting bills also provided advice on Bill 53.Footnote 106
The Americans had extensive jurisprudential and legislative experience with abortion restriction by 1985, so it is not surprising Caswell turned south of the border for assistance. The lawyers arguing the reference also turned to American case law to make their arguments,Footnote 107 and so too did the lawyers in Morgentaler. Footnote 108 Given the infancy of the Charter, the American experience was a point of orientation, as Canadians tried to get their bearings in uncharted waters.
IV. Arguments in the Court of Appeal and the Court’s Opinion
Two constitutional questions were referred: did Bill 53 comply with the division of powers under sections 91 and 92 of the Constitution Act, 1867, and did Bill 53 violate the Charter? The government selected two experienced civil litigators, Tom Gauley and ER Fitzgerald, who agreed to argue the case and were confirmed to their positions by court order.Footnote 109 Coincidentally, Tom Gauley had acted as Saskatchewan’s representative on the Canadian Bar Association’s (CBA’s) Committee on the Constitution in 1977–78, which put forward the CBA’s recommendations for repatriation of the Constitution.Footnote 110 The Committee recommended that Canada adopt a constitutionalized Bill of Rights, including protecting rights to liberty, security of the person, and privacy.Footnote 111 The privacy recommendation is particularly noteworthy, as privacy rights had been the basis for Roe v Wade Footnote 112 a few years earlier in 1973. Abortion, however, was not expressly mentioned in the CBA document. Less than a decade after his involvement in the CBA’s constitutional project, Gauley would be arguing that “liberty” and “security of the person” in a now constitutionalized bill of rights protected a woman’s right to abortion.
At the behest of the Court, advertisements were placed in the Saskatoon StarPhoenix and the Regina Leader-Post, inviting interested persons to apply to intervene in the reference proceedings.Footnote 113 Three groups sought permission to participate: the Saskatchewan Action Committee Status of Women, the Saskatchewan Pro-Life Association, and the Saskatchewan Medical Association. Interestingly, the lawyers for the Saskatchewan Action Committee (Myron A. Kuziak) and the Saskatchewan Pro-Life Association (Tom Schuck) both had brushes with the Borowski trial decision, having acted for groups attempting to intervene in that trial—Kuziak for the Canadian Civil Liberties Association and Schuck for Campaign Life Canada—though their efforts to do so had been unsuccessful.Footnote 114 The Saskatchewan Medical Association also applied to intervene, taking neither a for or against stance on the larger issue but seeking to put forward arguments protecting and prioritizing the physician–patient relationship.Footnote 115
Chief Justice Bayda denied all applications for leave. In a brief endorsement dated October 29, 1985, he wrote, “[t]he question raised by the reference is not one of fact, or of mixed fact and law, but of law alone. More particularly, it is a question of constitutional law.”Footnote 116 The material put forward by the parties related to factual issues, he observed, and thus would not assist the court on the legal issues.Footnote 117 So, to the disappointment of the would-be intervenors, the reference proceeded with only Gauley and Gritzfeld to make submissions.
The lawyers’ facta are a historical snapshot of Charter jurisprudence in its infancy. The courts were still in the process of sorting out the structure and content of the Charter. In fact, the Supreme Court’s decision in BCMVA Reference Footnote 118—which confirmed that s. 7 included substantive as well as procedural rights—was released only two days before the Court of Appeal heard arguments on Bill 53. Given the lack of Supreme Court jurisprudence, the lawyers looked elsewhere for guidance: American literature, American case law on abortion, Charter decisions from lower courts,Footnote 119 and the Supreme Court’s Bill of Rights jurisprudence.
While sections 2 (religion, expression) and 15 (equality) were referenced, chiefly in play was s. 7 of the Charter, which guarantees the “right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”Footnote 120 Gauley argued that s. 7 encompassed “a right to personal bodily integrity and a concomitant right to control both the interference as well as non-interference with this right by others.”Footnote 121 This, he wrote, meant that “women prima facie have the individual right to consent and agree to an otherwise lawful abortion.”Footnote 122 The Bill violated a woman’s substantive rights, he alleged, by denying her “personal control over the question of abortion,”Footnote 123 and violated her procedural rights by providing third parties with an “absolute veto” that could be exercised arbitrarily or against a woman’s best interest.Footnote 124 Gauley’s proposal—that s. 7 included a free-standing right to make decisions about abortion—was bold, as no Canadian judge had yet found this to be the case (though Justice Wilson would soon take this position in Morgentaler).
In response, Gritzfeld argued that s. 7 was not triggered as the Bill did “not deprive any person of their liberty or security as those terms are commonly understood.”Footnote 125 American case law on abortion was not useful, he wrote, because, unlike in the United States, a right to abortion was not “constitutionally enshrined.”Footnote 126 In his view, the consent provisions were not constitutionally problematic because they essentially replicated existing common law requirements.Footnote 127 The spousal consent requirement, he argued, could be justified because it reflected the “sanctity of marriage” and the husband’s interest in his wife’s pregnancy.Footnote 128
In contrast to the Charter’s uncertainty, division of powers law at the time was a familiar and predictable entity. There was even Supreme Court precedent on point: the issue of jurisdiction over abortion had been raised in the 1975 Morgentaler case. While the majority of the Court did not comment on the issue, Justice Laskin (dissenting on other grounds) upheld s. 251 as a valid exercise of the federal criminal law power. Additionally, Westendorp Footnote 129 had been decided by the Supreme Court just two years previously and arguably provided a close parallel to Bill 53. In that case, a unanimous Court struck down a municipal bylaw which prohibited gathering on streets for purposes related to prostitution. The Chief Justice concluded that the bylaw was clearly intended to penalize prostitution and thus, as an exercise of the federal criminal law power, fell outside the jurisdiction of the province. Gauley thought the comparison to Westendorp was undeniable.Footnote 130
Given that division of powers law was well-established, it is not surprising that Gauley and Gritzfeld did not dispute what law governed. Rather, they disagreed on the proper characterization to give Bill 53. In Gritzfeld’s view, the Bill’s primary purpose was to create health consents, meaning it was authorized either by s. 251 of the Criminal Code (which preserved consent requirements) or by the province’s authority over health.Footnote 131 Gauley argued that the Bill went beyond merely dealing with health information and was in fact a “colourable attempt to enact legislation that falls squarely under section 91(27).”Footnote 132 To illustrate the additional hurdles Bill 53 created for women seeking abortions, he set out the requirements of Bill 53 and s. 251 side by side.Footnote 133 Having demonstrated the overlap between the two frameworks as well as the additional constraints contained in the Bill, Gauley could then convincingly state:
Parliament provided a means whereby what would be unlawful, would if the proper procedure was followed, become lawful.
Bill 53 purports to superimpose on the exception provided by the Code burdens and difficulties not envisaged by the Code and is therefore an attempt, in essence, to prevent a female who is pregnant from coming within the exception the Criminal Code provides. It is in effect an attempt to strengthen the criminal law. This the Legislature cannot do.Footnote 134
Justices Cameron, Wakeling, and Gerwing heard arguments on December 19, 1985. A relatively junior panel, Justice Cameron had been appointed only four years previously, and Justices Wakeling and Gerwing, who were appointed on the same date, had been on the bench only a year when the Reference came before them.Footnote 135 The Court issued its decision the following day, a remarkably quick turn-around time (in contrast, the panel’s decision in Borowski was not released until the spring of 1987). Justice Wakeling, who authored a minimalist decision for the unanimous panel, found the Bill fell outside provincial jurisdiction over health. He essentially adopted the side-by-side comparison set out in Gauley’s factum and concluded that “the pith and substance of this legislation is to stiffen and make more restrictive the existing criminal law in relation to abortions.”Footnote 136 He cited a handful of Supreme Court decisions and observed that the Bill closely paralleled the unconstitutional municipal bylaw in Westendorp. The panel declined to comment on the Charter issues.
V. Aftermath: Evaluating the Reference Case and its Impact
Why was the bench silent on the rights implications of Bill 53? It could be that there was no majority on the Charter question and the panel opted to speak with one voice on the issue with consensus rather than deliver multiple, conflicting decisions, which could increase uncertainty while having limited precedential value.
Alternatively, perhaps the panel was exercising a philosophy of judicial minimalism. Cass Sunstein describes minimalism “as an effort to leave things open by limiting the width and depth of judicial judgments.”Footnote 137 Minimalism may be preferable because it best utilizes scarce judicial resources; it reduces the possibility of error that accompanies wide-ranging and general articulations that reach beyond the narrow issue in the case; and it “maximize[s] the space for democratic deliberation about basic political and moral issues.”Footnote 138 Sunstein recognizes that minimalism is not appropriate in all cases but argues that it the most appropriate course of action “when the Court is dealing with an issue of high complexity about which many people feel deeply and on which the nation is in flux (moral or otherwise).”Footnote 139 Under these criteria, Bill 53 called for a minimalist decision: abortion was morally and politically contentious; the legal landscape had only recently changed with the introduction of the Charter in 1982; and the Charter question was already on its way to the Supreme Court, as Morgentaler had filed his notice of appeal a month prior. In these circumstances, it was preferable for the Court of Appeal not to say anything on the Charter issue and wait for the Supreme Court’s resolution to come down in the near future.
The government did not appeal the Court’s decision, despite some pressure from constituents to do so. The Department of Justice, an independent lawyer, and Gritzfeld himself all advised the government that an appeal was unlikely to be successful.Footnote 140 Indeed, the Minister of Justice (now Sid Dutchak, who had taken over from Gary Lane), in reply to a letter from a concerned citizen, penned a seven page letter outlining the legal arguments in support of the Court of Appeal’s decision to justify the government’s refusal to appeal. He concluded “the Bill, taken as a whole, can only be regarded as aimed at restricting abortion as an evil or public wrong by prohibiting abortions unless the requisite information has been given and consents obtained.”Footnote 141
All three would-be intervenors—who, it will be recalled, were denied leave to intervene by Chief Justice Bayda—requested that the government pay the legal fees associated with preparing their applications. The Saskatchewan Action Committee made their case most forcefully, writing that it had been “misled by [the] Department [of Justice] to believe that there were grounds on which intervenor status could be granted to interest groups.”Footnote 142 The government refused to pay for any of the expenses, replying that only an opportunity to apply for leave had been promised, and that chance had in fact been granted.Footnote 143
Caswell was “disappointed but not surprised” by the Court of Appeal’s decision.Footnote 144 In particular, she was frustrated that she never had the opportunity to defend the Bill or respond to concerns raised.Footnote 145 Although the Bill never made it to a vote, she felt that the Bill had “accomplished a great deal,” including “establish[ing] that the right to life movement is a powerful political force.”Footnote 146 Caswell lost her seat to the NDP’s John Brockelbank in the 1986 provincial election,Footnote 147 but her advocacy work continued: the following year, she founded the anti-abortion group Victorious Women of Canada.Footnote 148
The government’s position on abortion continued after the Reference much as before. In the spring of 1986, Premier Devine replied to a Saskatchewan resident unhappy with the Court of Appeal’s decision:
[I]t remains a firm objective of this government to reduce the number of unnecessary abortions in Saskatchewan. My colleagues and I are concerned that abortion is being regarded as a form of birth control, and that is a situation which we find objectionable. I think our concern is clearly reflected in the position we have taken against free-standing abortion clinics and in our continued support for Saskatchewan Pro-Life educational programs.Footnote 149
The Devine government’s opposition to abortion culminated with a referendum, administered in tandem with the 1991 provincial election, asking voters whether public funding for abortion should be discontinued.Footnote 150 Nearly two thirds of respondents agreed it should be axed.Footnote 151 The NDP, which won the election, declined to follow the voters’ direction due to Charter concerns.Footnote 152
While the Reference killed the Bill, the precedential impact of the decision has been limited. The Reference was not cited in the Supreme Court decisions in Morgentaler in 1988 (striking down the TAC regime on Charter grounds) or Borowski in 1989 (declining to decide the fetal rights claim because the issue had become moot in light of Morgentaler). It was cited, briefly but with approval, in the 1993 Morgentaler decision, in which the Supreme Court struck down Nova Scotia’s prohibition on private abortion clinics. The Supreme Court wrote:
The guiding principle is that the provinces may not invade the criminal field by attempting to stiffen, supplement or replace the criminal law (Reference re Freedom of Informed Choice (Abortions) Act (1985), 44 Sask. R. 104 (C.A.)) or to fill perceived defects or gaps therein…Footnote 153
Otherwise, the reference decision has garnered little attention—judicial, academic or popular—in the last few decades.
The 1980s were a watershed for abortion regulation in Canada, from the introduction of the Charter in 1982 to the 1988 Morgentaler decision decriminalizing abortion. In 1985, in the midst of ongoing lobbying by pro-life and pro-choice groups and the legal sagas of Joe Borowski and Henry Morgentaler, a backbencher introduced into the Saskatchewan Legislative Assembly a consent-focused abortion bill. This paper has documented its odd journey from drafting at an American law firm to ultimate demise at the Court of Appeal. In particular, two features of this journey stand out.
First, Bill 53 may reveal something about governance tendencies in the Charter era. Mandel, Morton, and others have expressed concern that the Charter has actually had undemocratic effects, by enabling politicians to off-load difficult and controversial issues to the judiciary by casting them as legal, rather than political, questions.Footnote 154 Indeed, Mandel has noticed the increasing popularity of reference procedures designed to side-step tricky issues.Footnote 155 The experience of Bill 53 is very much in this vein: politicians failed to debate the substance of the Bill in any meaningful way, nor did they attempt to remedy the constitutional defects prior to sending it for a reference. The Court’s decision gave legislators cover to not act on the issue, despite the fact that the decision still left some space (albeit small) for provincial activity on abortion. Bill 53’s journey however, serves as a reminder that the political potential and tendency to off-load difficult questions did not arise with and is not grounded in the Charter; division of powers law can also be employed to decide controversial moral and political questions without engaging in the moral substance of those questions. For judicial review on Charter grounds, the political aspects of decision-making are never far from the surface, whereas the seemingly dry nature of federalism doctrine can easily obscure behind-the-scenes politics. While pro-choice proponents may be satisfied with the ultimate outcome, one cannot claim Bill 53’s demise at the hands of the Court of Appeal was a clear victory for women’s rights, either: women’s rights and experiences were absent from the Court’s decision-making.
Second, the Court opted for a minimalist decision, which left the rights issue for another day and thus avoided the controversy that a Charter decision would have attracted. Indeed, the decision made few waves when it was made and has drawn little attention since. Ironically, however, evaluating the decision in 2019—particularly, in light of demonstrated willingness on the part of provincial governments to employ the s. 33 notwithstanding clause and musings of some provincial politicians about the desirability of abortion restrictionFootnote 156—the Court’s minimalist federalism decision may actually have more profound and longer-term implications for abortion regulation in Canada than had the Court decided the matter on the basis of the Charter. While a Charter decision would have been shortly superseded by the Supreme Court’s decision in Morgentaler and Charter rights can be overridden by s. 33, federalism constraints remain constitutionally inviolable. Thus, a provincial government willing to use s. 33 to enact abortion restriction will be thwarted, not by the Charter, but by federalism. The Reference case is one of a handful of appellate-level cases on the scope of provincial power over abortion: as a whole, these cases very much limit provincial capacity to restrict access to abortion.Footnote 157 Thus, for a court that seemingly sought to limit the scope of its impact and for a decision that has largely faded from the public radar, the Reference may have significant and lasting implications.