In the eyes of the chief justice of the highest court in the country, Richard Wagner, the legality of abortion is a settled question in Canada, proof being given that no government has wished to frame it in a law.
“It seems to me that society settled this question several years ago, when the Supreme Court declared unconstitutional certain provisions of the criminal code which made abortion an offense,” explained Justice Wagner during a press briefing Monday.
He did not want to answer the specific question of whether a potential Conservative government could use the notwithstanding clause to restrict the right to abortion in Canada. This question could come back before the Supreme Court one day, said the judge, who intends to decide the case at that time.
It was the Supreme Court that legalized abortion in the R. v. Morgentaler, in 1988. According to the judges, the sections of the criminal code which prevented terminations of pregnancies violated a woman’s right to “life, liberty and security”, as guaranteed by the Canadian Charter of Rights and Freedoms .
“Since that time, and it goes back several years, the legislator, the Parliament, has never seen fit to legislate on this. There could have been legislation, much like they did with medical assistance in dying. But they didn’t,” he reasons.
“I don’t want to leave my judicial circle there. But legally speaking, the question is settled as far as we are concerned. So we’ll see if others have the imagination to do otherwise. »
In recent weeks, Liberal elected officials have accused the leader of the Conservative Party of Canada, Pierre Poilievre, of having a hidden agenda and of being ready to use the notwithstanding clause to legislate against the right to abortion. Mr. Poilievre instead alluded to police officers this spring to his intention to use “any tool” at his disposal to strengthen criminal sentences.
Pierre Poilievre appears to be pro-choice, but he indicates that he would leave the right to elected officials from his party who are openly against terminations of pregnancies to table their private bill. A review carried out by The duty of his twenty years in politics shows that the Conservative leader has already supported no less than five bills criticized as attempts to grant legal status to the fetus.
The notwithstanding provision is a way for elected officials to indicate that certain parts of the Canadian Charter of Rights and Freedoms do not apply to legal texts. This is a way to protect bills from certain legal challenges.
Ontario and Quebec have in recent years used the notwithstanding provision in a preventative manner, as with the Act respecting the official and common language of Quebec, French. The Bloc Québécois also proposed last week that the federal government use it to prevent those accused of serious crimes from being released thanks to the Jordan decision.