Supreme Court Judgments

SUPREME COURT OF CANADA

Morgentaler v. The Queen, [1976] 1 S.C.R. 616

Date: 1975-03-26

Dr. Henry Morgentaler Appellant;

and

Her Majesty the Queen Respondent;

and

The Attorney General of Canada et al.

Intervenants.

1974: October 2, 3, 4, 7; 1975: March 26.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF QUEEN'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Criminal law—Unlawful abortion—Defences sub­mitted to jury in error—"Necessity" not proven—Exclusion of criminal responsibility in cases of surgical operations not applicable—Verdict of acquittal by a jury—Conviction entered by Court of Appeal—Powers of Court of Appeal—Criminal Code, R.S.C. 1970, c. 34, ss. 251(1), (4), 45, 613(4)(b), 603, 605.

Appellant was accused of having procured the miscar­riage of a female person by the manipulation and use of an instrument, contrary to s. 251(1) of the Criminal Code. During the trial which took place before a judge and jury, he admitted the act, but relied upon the common law defence of necessity and the statutory defence found in s. 45 of the Criminal Code.

A verdict of acquittal was returned. A unanimous decision of the Court of Appeal set aside this verdict and a conviction was entered with a direction to the trial judge to pass sentence. Hence the appeal to this Court as of right under s. 618(2) of the Criminal Code, on the basis that s. 251 of the Criminal Code is unconstitution­al; that it is inoperative by virtue of the Canadian Bill of Rights; that the preferred indictment was void as constituting an abuse of power by the provincial Attorney General; that the accused was entitled to the benefit of the defences of necessity and of s. 45; that the operation performed was not within the intendment of s. 251; and that the Court of Appeal could not substitute a convic­tion for an acquittal in a jury trial.

Held (Laskin C.J. and Judson and Spence JJ. dissent­ing): The appeal should be dismissed.

Per Martland, Ritchie, Pigeon, Beetz and de Grandpré JJ.: Nothing was said to show that there was any

[Page 617]

evidence of an urgent necessity for effecting the abortion in disregard of s. 251 of the Criminal Code. Therefore, the Court of Appeal was correct in holding that the trial judge erred in putting the defence of necessity before the jury as there was no evidence to support it. It would be wholly inconsistent with the requirements for a legal abortion as they are clearly defined in s. 251, to read s. 45 as protecting from criminal responsibility any person who performs the operation anywhere provided only that it is done with reasonable care and skill having regard to the state of health of the woman. To submit that the operation performed did not come within the intendment of s. 251 is to ignore the meaning of "avortement" in the French version as well as the definition of "means". By specifying the use of an instrument, the section clearly covers a surgical abortion as practiced by the accused. As for the conviction entered by the Court of Appeal after the accused had been acquitted by a jury, s. 605(1) of the Criminal Code, granting the right of appeal from an acquittal, clearly includes a judgment at trial with or without a jury. Section 613(4) authorizes the Court of Appeal to enter a verdict of guilty where the accused was tried by a jury. Paragraph (b) necessarily applies to a jury verdict after such a trial as well as to an acquittal by a judge. It is true that, as a rule, the duty of a court of appeal is to render the judgment that the trial court should have rendered. However, under our Criminal Code in what is clearly a fundamental departure from common law principles, Parliament has not only pro­vided for appeals against acquittals, but has also spelled out the powers which can be exercised on such appeals, including that of entering a verdict of guilty when there has been an acquittal by jury verdict. This is obviously a power to be used with great circumspection.

Per Martland, Ritchie, Dickson, Beetz and de Grandpré JJ.: Section 45 of the Criminal Code is not available as a defence to a charge under s. 251. Parliament in s. 251 has proscribed as criminal conduct, surgery procur­ing a miscarriage, except in conformity with precise and detailed protective measures including a qualified medi­cal practitioner and an accredited or approved hospital. Section 251 contains a comprehensive code on the sub­ject of abortions, unitary and complete within itself, which the general language of s. 45 does not touch. Section 45 may be available as an answer to a charge arising out of a surgical operation performed on an

[Page 618]

unconscious patient but it is not available as an answer to a charge of procuring an abortion contrary to s. 251 for s. 251 is concerned with procurement of miscarriage and only remotely, if at all, with surgical operations. As for the defence of necessity, at the very least it must rest upon evidence from which a jury could find (I) that the accused in good faith considered the situation so emer­gent that failure to terminate the pregnancy immediate­ly could endanger life or health and (2) that upon any reasonable view of the facts compliance with the law was impossible. The evidence did not establish these two conditions and the defence of necessity was not open to the appellant.

Per Laskin C.J. and Judson and Spence JJ., dissent­ing: The contention that s. 251 of the Criminal Code was invalid was rejected by this Court because Parlia­ment may determine what is not criminal as well as what is, and may hence introduce dispensations or exemptions in its criminal legislation. Parliament has made a judgment which does not admit of any interfer­ence by the Courts. Furthermore, having regard to the residuary feature of federal legislative power, s. 251 cannot be invalidated unless it is shown that it is in relation to a head of exclusive provincial legislative power. This was not proven.

As to the effect of the Canadian Bill of Rights upon s. 251, s. 1(b) of the Canadian Bill of Rights must not be regarded as charging the Courts with supervising the administrative efficiency of legislation or with evaluat­ing the regional or national organization of its adminis­tration, in the absence of any touchstone in the legisla­tion itself which would indicate a violation of s. 1(6). There is no judicial basis for impeaching s. 251 under s. 1(b) merely because not all persons affected by s. 251 may find it feasible because of geographical or economic considerations to take shelter under its exculpating terms. Any unevenness in the administration of the relieving provisions is for Parliament to correct and not for the Courts to monitor as being a denial of equality before the law and the protection of the law.

As to the dispensations afforded by compliance with s. 251(4) and (5), they do not involve any issue of depriva­tion of a right which may require an opportunity to be heard with or without counsel. They simply permit a person to make conduct lawful which would otherwise be unlawful. Furthermore, it is difficult to see how due process of law in s. 1(a) can be said to require express provision for review of a therapeutic abortion committee’s

[Page 619]

decisions or can require that reasons be given for these.

The contention that the standard upon which thera­peutic abortion committees must act is uncertain and subjective must be rejected. Parliament could assign an exercise of judgment as to the danger of continuation of pregnancy to a professional group without colliding with any imperatives called for by due process of law under s. 1(a).

Finally, it cannot be said that the mere prohibition of' abortions save as permitted by s. 251(4)(5) involves any imposition of treatment nor that a physician or other person who runs foul of the abortion law is subjected to cruel or unusual punishment if he is sentenced to a term of imprisonment for his criminal conduct. That would mean ignoring the contextual importance of the words "impose" and "imposition". Furthermore the proposi­tions that the accused had a right to a preliminary inquiry and that he had a right to have the indictment screened by a grand jury before its presentation to the Court must be rejected. Modes of trial or modes of bringing an accused to trial are not, by reason of their number, in violation of s. 1(b) of the Canadian Bill of Rights.

As to the legal issues raised under the Criminal Code, not only does s. 45 remain available as a defence but there was also evidence upon which the trial judge could leave that defence to the jury. In charging the jury on this defence, the trial judge proceeded to outline the elements of a s. 45 defence and then to relate the evidence to those elements by explaining that the required regard "to all the circumstances of the case" brought into play s. 251(4) itself as a circumstance bearing on the resort to s. 45.

Since the charge arose out of a surgical operation and since provision existed for a lawful therapeutic abortion under s. 251(4), the evidentiary question, in the light of the law that was put to the jury on necessity, was whether there were more emergent circumstances than those reflected in s. 45 upon which the jury could act, if it so chose, despite the provision for a lawful abortion under s. 251(4). There was some such evidence, and it was for the jury to say whether, in the circumstances, the harm sought to be avoided was an immediate and physical one, and whether there was enough of an emergency in this respect facing the accused as to make it certain that there could be no effective resort to the machinery of s. 251(4) to cope with the emergency. The sufficiency of evidence on any issue is a matter for the jury, which alone is charged to accept what it chooses

[Page 620]

and to weigh what it accepts in the light of the law given to it by the trial judge. The jury discharged this function in this case; and once it is decided that there was evidence to go to the jury on the two defences which were properly left to the jury, the jury's verdict is not one which can be lightly interfered with by an Appellate Court.

[Parnerkar v. The Queen, [1974] S.C.R. 449; R. v. Bourne, [1939] 1 K.B. 687; Belyea v. The King, [1932] S.C.R. 279, [1931] O.R. 699; Ciglen v. The Queen, [1970] S.C.R. 804; Wild v. The Queen, [1971] S.C.R. 101; R. v. Heyes, [1951] 1 K.B. 29; R. v. Hancock, [1931] 100 L.J.K.B. 419; Savard and Lizotte v. The King, [1946] S.C.R. 20; U.S. v. Holmes (1842), 26 Fed. Cas. 360; R. v. Dudley and Stephens (1884), 14 Q.B.D. 273; Gregson v. Gilbert (1783), 3 Dougl. 232; Mouse's Case (1609), 12 Co. Rep. 63; Southwark London Borough Council v. Williams, [1971], 1 Ch. 734, referred to.]

APPEAL from a judgment of the Court of Queen's Bench, Appeal Side[1], Province of Quebec, setting aside the jury verdict of acquittal and — entering a conviction without ordering a new trial. Appeal dismissed, Laskin C.J. and Judson and Spence JJ. dissenting.

Claude A. Sheppard, Charles E. Flam and Y. Bolduc, for the appellant.

Louis Guy Robichaud, Q.C., for the respondent.

John Scollin, Q.C., and G. F. Pinos, for the Attorney General of Canada.

Clayton Ruby, for the Foundation for Women in Crisis.

Edward Greenspan, for the Canadian Civil Lib­erties Association.

B. Finlay, for the Alliance for Life.

E. Colas, Q.C., for the Association des médecins du Québec and the Front Commun pour le Respect de la vie.

James O'Reilly, for the Fondation pour la vie.

[Page 621]

The judgment of Laskin C.J. and Judson and Spence JJ. was delivered by

THE CHIEF JUSTICE (dissenting)—This appeal, which is before this Court as of right under s. 618(2) of the Criminal Code, presents the highly unusual, if not the singularly exceptional, situation of an appellate court itself entering a conviction after setting aside a jury verdict of acquittal. The appellant, Dr. Henry Morgentaler, was acquitted on the verdict of a jury of unlawfully procuring the miscarriage of a female person, contrary to s. 251 of the Criminal Code. That verdict was set aside and a conviction was entered by the Quebec Court of Appeal which found it unnecessary to send the case back for a new trial. The five judges who constituted the court, unanimous in result but not in their reasons, concentrated on the two defences that the trial judge had left to the jury, a defence under s. 45 of the Criminal Code and the common law defence of necessity preserved by s. 7(3) of the Criminal Code. It was the opinion of the court that s. 45 was not available as a defence to a charge under s. 251 (or, in the opinion of at least one of the judges, if open, was not applicable in this particular case) and that the defence of neces­sity, in so far as it differed in this case from s. 45 and in so far as it could be a separate defence, was not supported by any evidence that would bring it into play on the facts of this case in respect of all, or at least one of the elements in respect of which the defence had to raise a reasonable doubt.

The appeal from the conviction by the Quebec Court of Appeal is founded on the defences which the trial judge had put to the jury and as well on a number of other matters, set out below, going to the merits of the charge and the acquittal at trial. In addition, the appellant has challenged the con­stitutional validity of s. 251 and has also contested its operative effect in the light of the Canadian Bill of Rights. Intervention on these matters was sought and accorded to the Attorney General of Canada, the Canadian Civil Liberties Association, the Foundation for Women in Crisis, the Alliance

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for Life, the Fondation de la Vie, the Front Commun pour le Respect de la Vie and l'Associa­tion des Medecins du Québec pour Le Respect de la Vie.

Section 251 of the Criminal Code, in its present form, which is as it was when the charge against Dr. Morgentaler was laid, reads as follows:

251. (1) Every one who, with intent to procure the miscarriage of a female person, whether or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and is liable to imprisonment for life.

(2) Every female person who, being pregnant, with intent to procure her own miscarriage, uses any means or permits any means to be used for the purpose of carrying out her intention is guilty of an indictable offence and is liable to imprisonment for two years.

(3) In this section, "means" includes

(a) the administration of a drug or other noxious thing,

(b) the use of an instrument, and

(c) manipulation of any kind.

(4) Subsections (1) and (2) do not apply to

(a) a qualified medical practitioner, other than a member of a therapeutic abortion committee for any hospital, who in good faith uses in an accredited or approved hospital any means for the purpose of carry­ing out his intention to procure the miscarriage of a female person, or

(b) a female person who, being pregnant, permits a qualified medical practitioner to use in an accredited or approved hospital any means described in paragraph (a) for the purpose of carrying out her intention to procure her own miscarriage, if, before the use of those means, the therapeutic abortion committee for that accredited or approved hospital, by a majority of the members of the committee and at a meeting of the committee at which the case of such female person has been reviewed,

(c) has by certificate in writing stated that in its opinion the continuation of the pregnancy of such female person would or would be likely to endanger her life or health, and

(d) has caused a copy of such certificate to be given to the qualified medical practitioner.

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(5) The Minister of Health of a province may by order

(a) require a therapeutic abortion committee for any hospital in that province, or any member thereof, to furnish to him a copy of any certificate described in paragraph (4)(c) issued by that committee, together with such other information relating to the circum­stances surrounding the issue of that certificate as he may require, or

(b) require a medical practitioner who, in that prov­ince, has procured the miscarriage of any female person named in a certificate described in paragraph (4)(c), to furnish to him a copy of that certificate, together with such other information relating to the procuring of the miscarriage as he may require.

(6) For the purposes of subsections (4) and (5) and this subsection

"accredited hospital" means a hospital accredited by the Canadian Council on Hospital Accreditation in which diagnostic services and medical, surgical and obstetri­cal treatment arc provided;

"approved hospital" means a hospital in a province approved for the purposes of this section by the Minister of Health of that province;

"board" means the board of governors, management or directors, or the trustees, commission or other person or group of persons having the control and management of an accredited or approved hospital;

"Minister of Health" means

(a) in the Provinces of Ontario, Quebec, New Brunswick, Manitoba, Alberta, Newfoundland and Prince Edward Island, the Minister of Health,

(b) in the Province of British Columbia, the Minister of Health Services and Hospital Insurance,

(c) in the Provinces of Nova Scotia and Saskatche­wan, the Minister of Public Health, and

(d) in the Yukon Territory and the Northwest Territories, the Minister of National Health and Welfare;

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"qualified medical practitioner" means a person entitled to engage in the practice of medicine under the laws of the province in which the hospital referred to in subsection (4) is situated;

"therapeutic abortion committee" for any hospital means a committee, comprised of not less than three members each of whom is a qualified medical practi­tioner, appointed by the board of that hospital for the purpose of considering and determining questions relating to terminations of pregnancy within that hospital,

(7) Nothing in subsection (4) shall be construed as making unnecessary the obtaining of any authorization or consent that is or may be required, otherwise than under this Act, before any means are used for the purpose of carrying out an intention to procure the miscarriage of a female person.

This provision, consisting of prohibitory terms in subss. (1) and (2) and of relieving terms in subss. (4) and (5) (the other subsections are definition and supporting clauses), is the product, as to its prohibitory terms, of legislation originating in s. 60 of the Offences against the Person Act, 1869 (Can.), c. 20, which in turn was founded upon the Offences against the Person Act, 1861 (U.K.), c. 100, s. 58. Its relieving provisions were enacted in 1969 by 1968-69 (Can.), c. 38, s. 18.

At the conclusion of the submission by counsel for the appellant and by counsel for the Canadian Civil Liberties Association and counsel for the Foundation for Women in Crisis, the Court announced that it did not need to hear the respondent Crown or the other intervenors on either the constitutional issue or on the applicabili­ty and effect of the Canadian Bill of Rights because no case was made out on these matters which required an answer. It is nonetheless impor­tant, in my opinion, to state why the attack on the validity and operation of s. 251 was rejected.

—II—

First, as to the attack on validity. The conten­tion that s. 251 was invalid as being an encroachment on provincial legislative power in relation to hospitals and to the regulation of the profession of medicine and the practice of medicine was made by the appellant alone. It was founded on the position that s. 251 did not meet the test of valid

[Page 625]

criminal law set out by Rand J. in the Margarine Reference, Reference re Validity of Section 5(a) of the Dairy Industry Act[2], where that learned judge stated it as follows (at pp. 49-50):

A crime is an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legisla­ture has had in mind to suppress the evil or to safeguard the interest threatened ... .

Is the prohibition then enacted with a view to a public purpose which can support it as being in relation to criminal law? Public peace, order, security, health, mor­ality: these are the ordinary though not exclusive ends served by that law, .. .

In my opinion, the provisions of s. 251 as it stood after the amendment in 1969 are well within the scope of the tests by which the late Justice Rand would measure a valid exercise of the federal criminal law power.

The wide scope of the exclusive federal criminal law power has been consistently asserted in the relevant case law in both the Privy Council, when it was Canada's ultimate appellate court, and in this Court. Parliament, in fastening upon certain behaviour or conduct or activity as criminal by proscribing it with penal sanctions, exercises a judgment which is not constitutionally impeachable simply because it may attract the opposition of a section of the population. The remedy or relief, as the case may be, lies with Parliament and not with this Court unless it is made plain to the Court that the use of the penal sanction was a colourable or evasive means of drawing into the orbit of the federal criminal law measures that did not belong there, either because they were essen­tially regulatory of matters within exclusive pro­vincial competence or were otherwise within such exclusive competence.

[Page 626]

Counsel for the appellant invoked history to support the submission that whatever the basis of prohibitory abortion legislation when first enacted in England by Lord Ellenborough's Act, 1803 (U.K.), c. 58, the evil aimed at had substantially abated because of improved medical and surgical procedures now known and practiced, and especial­ly because of the widely-used surgical suction procedure practiced by the appellant to terminate a pregnancy. Counsel relied on the recent judg­ments of the Supreme Court of the United States in Roe v. Wade[3] and Doe v. Bolton[4]. Those were cases that turned on the scope of the constitutional guarantees of the fourteenth and the ninth amendment of the American Constitution, and were not based on any issue of the limits of federal and state legislative power inter se. Indeed, counsel for the appellant conceded that, absent any issue of con­stitutional guarantees, there could be no valid attack upon the constitutionality of the state abor­tion legislation in those cases as being a trespass on congressional legislative power. (It should be recalled that there is no general criminal law power in the Congress but it resides rather in the states, qualified only by such power in the field of criminal law as Congress derives from its assigned powers.)

What counsel sought to draw from Roe v. Wade and Doe v. Bolton was that the present s. 251 of the Criminal Code could no longer be supported as legislation for the protection of a pregnant wom­an's health, and hence that rationale could no longer justify the presence of s. 251 in the Crimi­nal Code. This, however, is to attribute to Parlia­ment a particular, indeed exclusive concern under s. 251 with health, to the exclusion of any other purpose that would make it a valid exercise of the criminal law power. I am unable to accept this assessment of the basis of s. 251. Perhaps the matter would have a different face if there was here the kind of material that moved the courts in the Margarine Reference (Reference re Validity of Section 5(a) of the Dairy Industry Act)[5]

[Page 627]

to hold that the challenged s. 5(a) could no longer be supported as for the protection of health. Moreover, in that case there was no other supporting purpose open (apart from Parliament's power to control exports and imports of margarine). What is patent on the face of the prohibitory portion of s. 251 is that Parliament has in its judgment decreed that interference by another, or even by the preg­nant woman herself, with the ordinary course of conception is socially undesirable conduct subject to punishment. That was a judgment open to Parliament in the exercise of its plenary criminal law power, and the fact that there may be safe ways of terminating a pregnancy or that any woman or women claim a personal privilege to that end, becomes immaterial. I need cite no au­thority for the proposition that Parliament may determine what is not criminal as well as what is, and may hence introduce dispensations or exemp­tions in its criminal legislation. It has done this in respect of gaming and betting by prescribing for lawful operation of pari-mutuel systems (s. 188), by exempting agricultural fairs or exhibitions from certain of the prohibitions against lotteries and games of chance (s. 189(3)) and by expressly permitting lotteries under stated conditions (s. 190). I point also to the Lord's Day Act, R.S.C. 1970, c. L-13 as an illustration of a federal statute drawing its validity from the criminal law power which contains various exemptions.

Thus, I see nothing in s. 251(4)(5) that, either alone or in relation to s. 251 as a whole, casts any doubt on its validity. There is, finally, the very relevant point that having regard to the residuary feature of federal legislative power, s. 251 cannot be invalidated unless it be shown that it is in relation to a head of exclusive provincial legislative power. The only suggested bases of invalidation put forward by the appellant were the exclusive provincial powers under s. 92(7)(13) and (16). The

[Page 628]

short answer to these assertions is that in so far as s. 251 has any relationship to the establishment of hospitals or the regulation of the medical profes­sion or the practice thereof, the relationship is so incidental as to be little short of ephemeral.

—III—

I now address myself to the submissions of counsel for the appellant and counsel for the Canadian Civil Liberties Association and counsel for the Foundation for Women in Crisis on the effect of the Canadian Bill of Rights upon s. 251. These submissions invoked, in the main, s. 1(a) of the Canadian Bill of Rights and s. 1(b), s. 2(b) and, in one respect, s. 2(e). These provisions read as follows:

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

(b) the right of the individual to equality before the law and the protection of the law;

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in par­ticular, no law of Canada shall be construed or applied so as to

(b) impose or authorize the imposition of cruel and unusual treatment or punishment;

(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;

Before summarizing and dealing with the sub-missions, variously made, on the Canadian Bill of Rights there is one matter, advanced by the appel­lant as bearing on the range of the Canadian Bill of Rights,

[Page 629]

upon which I wish to comment. It was counsel's contention that the language in s. 1(a) and s. 1(b) upon which he relied, came from the Constitution of the United States and he urged, in consequence, that the adoption of the language involved the adoption of the decisional law by which it has been elaborated and applied. Since counsel for the appellant abjured any claim that stare decisis operated, his submission amounted to this, that decisions of the Supreme Court of the United States should carry weight in the consider­ation of the particular provisions of the Canadian Bill of Rights.

This Court has found such decisions to be help­ful in the past and remains receptive to their citation, but they do not carry any authority beyond persuasiveness according to their relevance in the light of context, with due regard to the obvious differences that exist between the statutory Canadian Bill of Rights and the guarantees of the Constitution of the United States. To give decisions of the Supreme Court of the United States respectful consideration does not carry us into any such theory of the adopted statute as the appellant propounded. Such a theory might have a place where provincial legislation, already con­strued by this Court, has been adopted by another provincial legislature. It does not operate in the present case as the appellant would have it.

The contentions under the Canadian Bill of Rights were that (1) under s. 1(a) thereof women had a right to privacy, involving at least a qualified right to have pregnancy terminated, especially in the first trimester of pregnancy; (2) the right to security of the person under s. 1(a) was infringed by s. 251 without due process of law because the standard in s. 251(4) ("would or would be likely to endanger her life or health") was so vague, so uncertain and so subjective as among different physicians and as among different therapeutic abortion committees as to deny due process of law; (3) there was a further denial of due process of law in the failure to provide adequate procedural safeguards whereby an applicant may appear, with counsel, if she so pleases, before a therapeutic abortion committee to plead her case; (4) moreover,

[Page 630]

since there was a right to obtain an abortion under certain circumstances without risking crimi­nal penalty, there was a right to a fair hearing thereon in accordance with the principles of funda­mental justice, pursuant to s. 2(e) of the Canadian Bill of Rights; (5) there was a denial of equality before the law and the protection of the law under s. 1(b) because s. 251(4), in permitting 'but not compelling the establishment of therapeutic abor­tion committees and in specifying the number of medical practitioners for those committees, oper­ates unequally in respect of women in rural areas and in areas where no such committees have been established and in relation to women whose eco­nomic status prevents the mobility necessary to avail themselves of such committees where they exist, and in any event, creates inequality because the vague standard given to the committees makes varying interpretations and applications thereof inevitable and consequently enables some women to obtain the protection of the law and others not; (6) there was also a denial of due process of law under s. 1(a) for failure to provide for a review of the decisions of therapeutic abortion committees having regard to the vague standard they must apply, the inability of an applicant to plead her case and the want of reasons for the committees' decisions; indeed the failure to require reasons was itself a denial of due process of law; and (7) the fact that a woman is prevented from having and a physician from performing an abortion using safe medically—proven techniques constitutes cruel and unusual treatment; and moreover, the fact that a physician is prevented from and is punished for performing an abortion which is in his judgment, in the best interest's of his patient and is with her consent is cruel and unusual punishment.

[Page 631]

It was also submitted by counsel for the Foun­dation for Women in Crisis that the Canadian Bill of Rights, even if considered merely as an aid to interpretation, would support resort to s. 45 as a defence to a charge under s. 251.

This last point does not, in my opinion, give any larger shape to s. 45 than it has under ordinary principles of construction applicable to enactments which provide shelter against conduct that would otherwise be criminal. Point 7 in the submissions on the Canadian Bill of Rights fails because it ignores the contextual importance of the words "impose" and "imposition". I am unable to agree that the mere prohibition of abortions save as permitted by s. 251(4)(5) involves any imposition of treatment; nor can it be said that a physician or other person who runs foul of the abortion law is subjected to cruel or unusual punishment if he is sentenced to a term of imprisonment for his crimi­nal conduct. Counsel's submission here inverts s. 2(6) of the Canadian Bill of Rights into a pros­cription against making conduct criminal. It is quite untenable.

I deal with points (3) and (4) together, and the short answer to them is that the dispensations afforded by compliance with s. 251(4) and (5) do not involve any issue of deprivation of a right which may require an opportunity to be heard with or without counsel. Nothing is being taken away under s. 251(4) and (5); they simply permit a person to make conduct lawful which would otherwise be unlawful. I note in this connection that s. 251(4) and (5) envisage that a qualified medical practitioner will be involved in the review by a therapeutic abortion committee of the case of a pregnant female who seeks lawfully to terminate her pregnancy. Point 6 is a related point and I am unable to see how due process of law in s. 1(a) can be said to require express provision for review of a therapeutic abortion committee's decisions or can require that reasons be given for them. There is no violation of due process of law even in the case of quasi-judicial or regulatory statutory bodies where

[Page 632]

no provision is made for review of their determinations.

Point 1 and point 2 of the submissions on the Canadian Bill of Rights may be dealt with to­gether. They raise the question considered by this Court in Curr v. The Queen[6] whether s. 1(a) of the Canadian Bill of Rights can be read as invit­ing this Court to pass on the substantive quality of legislation as well as on the adequacy of proce­dural safeguards for the right of the individual to life, liberty, security of the person and enjoyment of property, as specified in s. 1(a). The contentions of counsel who would impugn s. 251 in the light of s. 1(a) of the Canadian Bill of Rights are founded, as to point 1, on the decisions of the Supreme Court of the United States in the Wade and Bolton cases previously cited; and, as to point 2, are founded to a degree on those cases and on other decisions in the United States, such as that in The People v. Barksdale[7], a judgment of the Supreme Court of California.

This Court indicated in the Curr case how for­eign to our constitutional traditions, to our consti­tutional law and to our conceptions of judicial review was any interference by a court with the substantive content of legislation. No doubt, sub­stantive content had to be measured on an issue of ultra vires even prior to the enactment of the Canadian Bill of Rights, and necessary interpreta­tive considerations also had and have a bearing on substantive terms. Of course, the Canadian Bill of Rights introduced a new dimension in respect of the operation and application of federal law, as the judgments of this Court have attested. Yet it cannot be forgotten that it is a statutory instru­ment, illustrative of Parliament's primacy within the limits of its assigned legislative authority, and this is a relevant consideration in determining how far the language of the Canadian Bill of Rights should be taken in assessing the quality of federal enactments which are challenged under s. 1(a). There is as much a temptation here as there is on the question of ultra vires to consider the wisdom

[Page 633]

of the legislation, and 1 think it is our duty to resist it in the former connection as in the latter.

I am not, however, prepared to say, in this early period of the elaboration of the impact of the Canadian Bill of Rights upon federal legislation, that the prescriptions of s. 1(a) must be rigidly confined to procedural matters. There is often an interaction of means and ends, and it may be that there can be a proper invocation of due process of law in respect of federal legislation as improperly abridging a person's right to life, liberty, security and enjoyment of property. Such a reservation is not, however, called for in the present case.

The contention under point 1 that a right of privacy, as an element of liberty, is protected against federal invasion, is founded upon Roe v. Wade, supra. Yet that case did not recognize this as absolute to the exclusion of a state interest to protect health or potential life. Rather, it sought to balance its recognition of the right to privacy (that is, the right to decide on an abortion) with the right, timewise, of the state to interfere. (The Supreme Court of the United States disclaimed any intention to support abortion on demand, and, indeed, no such claim was advanced by counsel for the appellant or by his supporting intervenors in the present case.) In a situation such as exists in Canada, where there is an exclusive national federal criminal law power and no constitutionally entrenched Bill of Rights, I am unable to agree that we would be warranted in dividing the normal gestation period into zones of interest, one or more to be protected against state interference and another or others not. This is altogether apart from the question whether "liberty" in s. 1(a) embraces privacy or freedom of choice in any such sense as to entitle a pregnant woman to claim that the federal Parliament may not legislate as it has done in s. 251 in its present form.

[Page 634]

Appellant's contentions on the constitutional validity of s. 251 were in some measure based on the saine considerations that the intervenors, Canadian Civil Liberties Association and the Foundation for Women in Crisis, urged in chal­lenging s. 251 under s. 1(a) of the Canadian Bill of Rights. The challenge, in my view, fails in the latter respect as it failed in the former.

The contention under point 2 is equally unten­able as an attempt to limit the substance of legisla­tion in a situation which does not admit of it. In submitting that the standard upon which thera­peutic abortion committees must act is uncertain and subjective, counsel who make the submission cannot find nourishment for it even in Doe v. Bolton. There it was held that the prohibition of abortion by a physician except when "based upon his best clinical judgment that an abortion is necessary" did not prescribe a standard so vague as to be constitutionally vulnerable. A fortiori, under the approach taken here to substantive due process, the argument of uncertainty and subjec­tivity fails. It is enough to say that Parliament has fixed a manageable standard because it is addressed to a professional panel, the members of which would be expected to bring a practiced judgment to the question whether "the continua­tion of the pregnancy ... would or would be likely to endanger ... life or health". Moreover, I am of the view that Parliament could assign such an exercise of judgment to a professional group without colliding with any imperatives called for by due process of law under s. 1 (a).

Finally, in the catalogue of submissions under the Canadian Bill of Rights is point 5 which, understandably, shows concern for the effect of place or area of residence (where remote from hospitals or where there is a dearth of qualified physicians) and economic status on the availability and accessibility of the services under s. 251(4) and (5) of the Criminal Code, through which an

[Page 635]

abortion may be sought without risk of criminality. The contention that there is here a denial of equality before the law and the protection of the law necessarily assesses s. 251(4) and (5) accord­ing to whether it gives its advantages to all sections of the Canadian community, enabling them to avail themselves of it in whatever part of Canada they may be and regardless of their economic status. Assessment on this basis would make the operation of s. 251(4) and (5) depend on there being a certain distribution of physicians throughout the country and on the availability of hospitals in all areas. It would mean too that the Court would have to come to some conclusion on what distribution would satisfy equality before the law, and that the Court would have to decide how large or small an area must be within which an acceptable distribution of physicians and hospitals must be found. This is a reach for equality by judicially unmanageable standards, and is posited on the theory that the Court should either give directions for the achievement of relative equality of access to therapeutic abortion committees and approved hospitals to overcome an alleged legislative short-coming, or should strike down not only subss. (4) and (5) of s. 251 (which would leave an unquali­fied prohibition of abortion) but the whole section as being inseverable.

I do not regard s. 1(b) of the Canadian Bill of Rights as charging the courts with supervising the administrative efficiency of legislation or with eva­luating the regional or national organization of its administration, in the absence of any touchstone in the legislation itself which would indicate a viola­tion of s. 1(b) including the specified prohibitions of discrimination by reason of race, national origin, colour, religion or sex. There is nothing of this sort in s. 251. Nor is that section vulnerable to attack on any substantive ground inhering in the command of "equality before the law and the protection of the law". There may be situations where, in determining whether federal legislation is incompatible with s. 1(b) or other provisions of the Canadian Bill of Rights, the Court may have to examine and come to a conclusion on the purpose or object of the challenged legislation and decide whether its provisions bear a rational relation

[Page 636]

to that purpose. The present case does not raise this issue when there is nothing to show that s. 251 offends against the prohibited discrimina­tions or is otherwise offensive to s. 1(b). I do not find any judicial basis for impeaching s. 251 under s. 1(b) of the Canadian Bill of Rights because not all persons affected by s. 251 may find it feasible because of geographical or economic consider­ations to take shelter under its exculpating terms.

Whether s. 251 be viewed as primarily a crimi­nal prohibition subject to a dispensing provision, or as establishing a forum and a formula for lawful abortions which must be followed on pain of crimi­nality, I see nothing in it which warrants this Court in either blunting its operation or rendering it inoperative as incompatible with s. 1(b) of the Canadian Bill of Rights. Both the prohibition in s. 251 and its relieving terms are general in their application; and in qualifying the prohibition against the intentional procurement of a miscar­riage by a requirement of certification of likely danger to life or health by a medical practitioner and interposing the safeguards of a medical screening committee and performance of the abor­tion in an accredited or approved hospital, Parlia­ment has made a judgment which does not admit of any interference by the courts. Nor can I regard Parliament's prescription of the number to consti­tute a therapeutic abortion committee, nor the limitation that the performance of authorized abortions be in an approved or accredited hospital as raising a judicially reviewable question. Any unevenness in the administration of the relieving provisons is for Parliament to correct and not for the courts to monitor as being a denial of equality before the law and the protection of the law.

Counsel for the appellant took the point, which was elaborated in great detail in the appellant's factum, that since the prosecution in this case was initiated by an indictment preferred by the Attor­ney General of Quebec who signed it personally, there was a duty upon the Attorney General to act

[Page 637]

judicially in the exercise of his power and he had not so acted. It was contended further that s. 507(3) of the Criminal Code, under which the indictment was preferred, was in conflict with s. 1(b) of the Canadian Bill of Rights as being a denial of equality before the law and the protection of the law. As to the submission that there was a duty to act judicially which had been violated it is enough to adopt the ruling on this point of the trial judge, as follows:

Even assuming ... that the attorney general in sign­ing the preferred indictment was exercising a quasi-judi­cial function, I do not think that there is anything before me which would entitle me to hold that such discretion had been improperly exercised.

The contention on the Canadian Bill of Rights must also be rejected. It is founded on the proposi­tion that the accused had a right to a preliminary inquiry, and on the further proposition that he had a right to have the indictment screened by a grand jury before its presentation to the Court. in short, the submission is that uniformity of criminal law administration across Canada is involved in s. 1(b) of the Canadian Bill of Rights. I do not find any violation of the Canadian Bill of Rights simply because our criminal law and procedure provide for alternative methods of bringing an accused person to trial. The methods prescribed have their roots in history, and this is a relevant factor in considering whether there is a denial of equality before the law. The submission of the appellant here, if accepted, would entail desistment from trial by judge alone because trial by jury is also prescribed or vice versa. Modes of trial or modes of bringing an accused to trial are not, by reason of their number, and consequent choice of one or another, whether by the prosecution or by an accused, in violation of s. 1(b) of the Canadian Bill of Rights: see Smythe v. The Queen[8].

—IV—

I turn now to the facts of the present case and to the legal issues raised by those facts under the

[Page 638]

Criminal Code. The appellant was charged with performing an illegal abortion on August 15, 1973, upon a twenty-six year old unmarried female who had come to Canada from a foreign country in 1972 on a student visa. She was without family or close friends in Canada, ineligible to take employment and also ineligible for Medicare benefits. On becoming apprehensive of possible pregnancy in July, 1973, she consulted a physician in general practice who referred her to a gynecologist. He confirmed that she was pregnant, but refused assistance to procure an abortion. On her own initiative she canvassed five Montreal hospitals by telephone and learned that if an abortion was to be performed she would have to bear the fees of a surgeon and an anaesthetist, and could envisage two or three days' hospitalization at $ i 40 per day. This was far beyond her means.

Throughout the period following her apprehen­sion and the confirmation of her pregnancy and until the abortion performed by the appellant, she was anxious, unable to eat or sleep properly, prone to vomiting and quite depressed. Her condition had an adverse effect upon her studies and it was aggravated by her being told that the longer she delayed in having an abortion the more dangerous it would be. One hospital offered her an appointment (which would result in her case coming before the therapeutic abortion committee) at the end of August, 1973, when she would be eight to ten weeks pregnant. She got in touch with the appellant at the suggestion of a hospital or hospi­tals that she had contacted. There is some discrep­ancy between her evidence and that of the appel­lant as to the scope and nature of the conversation between them when she visited his clinic where the abortion was performed. In this appeal I think it proper to accept the evidence of the appellant who testified that his discussion with her went beyond asking whether she had previously had an abor­tion, when she realized she was pregnant and what his fee would be. He asserted that the conversation also encompassed reference to her country of origin, her vocation, her marital status and why an abortion was necessary. During the conversation the appellant said that he assessed the necessity of an abortion by reference to her state of anxiety,

[Page 639]

her inability to eat or sleep properly and the consequent adverse effect on her physical health. He also considered that her determination to have an abortion might lead her to do something fool­ish. The appellant was aware that his patient had approached a number of hospitals without success, but did not know that she had been offered an appointment at the end of August, 1973.

The appellant's competence to perform the abortion was unquestioned. I do not think that the fact that he has performed numerous abortions should have any adverse bearing on any defence that was open to him in this case. As a competent surgeon, the fact of his specialization should make it more likely than not that he would be in a better position than a non-specialist to determine, relative to a patient's state of pregnancy and to her state of physical and mental health, whether abortional surgery should be carried out at the particular time. The trial Judge stated in imposing sentence upon the appellant (as directed by the Quebec Court of Appeal when it set aside the jury's acquittal and entered a conviction) that there was substantial evidence at the trial that had this woman gone to an accredited hospital, she would have received the approval of a therapeutic abor­tion committee to have an abortion performed, but, of course, it was merely speculation whether she would in fact have received such approval. In short, according to the trial Judge, there was evidence upon which the therapeutic abortion com­mittee could conclude that the continuation of her pregnancy would or would be likely to endanger her life or her health, but that did not mean that it would so conclude. Since she would have been eight to ten weeks pregnant when her case might have come before the therapeutic abortion com­mittee at the end of August, 1973, and since the decision might not have been made promptly or might have been adverse, the question of likely danger to health if not also to life would not be an idle one.

In charging the jury, the trial judge told them that they were entitled to consider two defences, namely, that of necessity, preserved as a common

[Page 640]

law defence under s. 7(3) of the Criminal Code and a defence open under s. 45 of the Criminal Code which reads as follows:

45. Every one is protected from criminal responsiblity for performing a surgical operation upon any person for the benefit of that person if

(a) the operation is performed with reasonable care and skill, and

(b) it is reasonable to perform the operation, having regard to the state of health of the person at the time the operation is performed and to all the circum­stances of the case.

The acquittal of the accused by the jury may have been based on both defences or on one or other of them but, of course, this was not a matter within the knowledge of the trial Judge or of the appellate Court.

In determining whether the two defences are open on a charge under s. 251 and, if open, whether there was any evidence upon which they, or either of them, should have been left to the jury, it is, of course, proper to consider that under s. 251 itself there is a procedure through which an abor­tion may lawfully be procured and performed. The Quebec Court of Appeal was of the opinion that s. 45 could not be invoked in defence of a charge under s. 251, the majority of the Court holding that it was not open having regard to s. 251(4), and two members of the Court indicating that in this case it did not differ in any material way from the defence of necessity. There was, however, agreement by the members of that Court that in this case the defence of necessity was open. They went on to say that this defence demanded that there be evidence to make it as probable as not that it was necessary to perform the abortion because of the probable danger in the circum­stances to the physical or mental health of the woman from the continuation of her pregnancy and, further, that it was, in the light of all the circumstances, impossible to fulfil the conditions for a lawful abortion under s. 251(4) at the time and in the circumstances under which the necessity for performing it was determined.

[Page 641]

I read the reasons of the Quebec Court of Appeal as finding no reversible error in the way the trial Judge charged the jury on the defence of necessity. However, it appears to me that the Quebec Court of Appeal was also of the opinion (although here the matter was not made as clear as it might have been) that there was either no evidence to go to the jury on the defence of necessity or that the jury's verdict on the evidence which was left to them was unreasonable or unsup­portable on the evidence. The Quebec Court of Appeal thereupon set aside the verdict of acquittal and entered a conviction on the very charge of which the accused had been acquitted.

Formally, the powers of a provincial appellate Court under s. 613(4)(b) of the Criminal Code are broad enough to authorize it to do what it did. However, 1 have been unable to find any reported Canadian case where an appellate Court, in setting aside a jury's verdict of acquittal, has entered a conviction on the very offence charged and of which the accused has been acquitted by a jury, and has not been content to order a new trial with accompanying directions. Counsel for the respec­tive parties were unable to produce any such case, and I am not particularly suprised that they could not. Where a case is left to the jury on evidence that may be found to support a defence to the offence charged, and the accused is acquitted, the fact that the trial Judge may have erred in charg­ing the jury on the law would ordinarily result in a direction for a new trial. If it be the case at the trial that there is, in the opinion of the trial Judge, no evidence to go to the jury to support a required defence the trial Judge would so charge, but would leave it to the jury to bring in a verdict of guilty. Correlatively, if the trial Judge is of the opinion that there is no evidence to go to the jury in support of the charge, it would be for the jury to bring in a directed verdict of acquittal. It must be an unusual case, indeed, in which an appellate Court, which has not seen the witnesses, has not observed their demeanour and has not heard their evidence adduced before a jury, should essay to pass on its sufficiency, either as to a defence or in support of a charge, and thereupon to substitute its opinion for that of the jury and to enter a conviction

[Page 642]

(rather than ordering a new trial) where the jury has acquitted. Where the jury has convicted, appellate Courts have, from time to time, sub­stituted their opinion that an acquittal should be directed, and this has been done even by this Court: see Savard and Lizotte v. The King[9].

I shall return to this point after examining whether the defences set up by the accused, and accepted by the trial Judge as open on a charge under s. 251, were indeed open and, if so, whether as to both or either of them there was any evidence upon which the jury could find that the defences or either of them were made out.

I deal first with s. 45, which has been part of the Criminal Code since the Code was first enacted in 1892. Two questions arise in respect of the relation of s. 45 to s. 251. First, there is the question whether s. 45 (which was enacted as s. 57 in 1892) could be invoked as a defence to a charge under s. 251 as it stood before the amendment thereto in 1969 (it was then s. 237) which introduced what is now s. 251(4). If the answer is "no", a second question does not arise. If the answer is "yes", the second question is whether the defence open under s. 45 was impliedly removed by reason of the enactment of what is now s. 251(4).

Section 45 appears in Part I of the Criminal Code, entitled "General", thus indicating its applicability, according to the circumstances, to all provisions of the Criminal Code. It had no counterpart in English legislation when introduced into the Criminal Code in 1892 as s. 57; on the other hand, the anti-abortion provisions, s. 272 of the 1892 Code, clearly came from the English Offences against the Person Act, 1861 (U.K.), c. 20, s. 58. As it stood in 1892, s. 272 made it an offence "unlawfully" to administer to a woman any drug or other noxious thing or to use any instrument or other like means on her with intent

[Page 643]

to procure her miscarriage. Section 273 was a companion provision respecting a woman's pro­curement of her own miscarriage. The word "unlawfully" disappeared in the Criminal Code revision of 1953-54 (Can.), c. 51, and the anti-abortion provisions, then s. 237, were as follows:

237. (1) Every one who, with intent to procure the miscarriage of a female person, whether or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and is liable to imprisonment for life.

(2) Every female person who, being pregnant, with intent to procure her own miscarriage, uses any means or permits any means to be used for the purpose of carrying out her intention is guilty of an indictable offence and is liable to imprisonment for two years.

The origin of s. 45 is to be found in Sir James Fitzjames Stephen's English Draft Code of 1878 which in turn built upon the Indian Penal Code of 1860. Section 67 of Stephen's Draft Code under the heading "Surgical Operations" was as follows:

Every one is protected from criminal responsibility for performing with reasonable care and skill any surgical operation upon any person for his benefit: provided that performing the operation was reasonable, having regard to the patient's state at the time and to all the circumstances of the case.

Stephen's Digest of the Criminal Law (5th ed. 1894) at p. 164 shows that s. 67 was deemed by him to apply both to consensual and non-consensu­al surgery. Certainly, there is no limitation in s. 45 or anywhere else in the Criminal Code to suggest that s. 45 is confined to situations where an uncon­scious or disabled person is the subject of the surgical operation and is unable to give a consent. It appears to me, therefore, that before the enactment in 1969 of what is now s. 251(4), s. 45 was available as a defence to a charge of procuring a miscarriage laid against a physician who with the consent of his patient performed an operation to abort her.

[Page 644]

I appreciate that s. 45 is not limited to physi­cians or surgeons but it is obvious that, where consensual surgery is involved, except in the rarest of cases, it would be a qualified physician or surgeon who would be likely to meet the condition fixed by s. 45. This view of s. 45 is not affected by reason of the fact that the section was not express­ly annexed to the anti-abortion provisions of the Code as they stood in 1892 and later, as is the case with the defence expressly included in s. 221 of the Criminal Code. That section makes it an offence to kill an unborn child in the act of birth but it also excludes in subs. 2 liability of a person who, in good faith, to preserve the life of the mother, causes the death of the child.

The trial Judge dealt with this matter in his reasons for allowing the defence of s. 45 to be set up in this case, and he rejected the submission that because s. 221 had a built-in defence the same should be expected in the anti-abortion provisions of the Code. I agree with him that logical consist­ency is not an invariable canon of construction, although I cannot myself see the logic of the argument made in relation to s. 221 as a required measure of the provisions respecting abortion. Sec­tion 45, as the trial Judge noted, is limited to surgical operations and this is not a limitation found in s. 221(2). Like s. 45, s. 221(2) had its origin in Stephen's Draft Code of 1878 as a pro­viso to its s. 212, dealing with the offence of killing a child at birth. Although the draconian effect of the English abortion legislation of 1861 could be explained on medical grounds, namely, that the operation was then regarded as highly dangerous so that "it would be ridiculous to call it therapy" (see Glanville Williams, The Sanctity of Life and the Criminal Law (1957), at p. 160), Stephen appears to have thought it proper to distinguish the defence open to surgeons (who would generally be those seeking to invoke a s. 45 defence) and the particular defence open to others as well as sur­geons, for example, midwives, in respect of the killing of children at birth. This defence was lim­ited expressly to the preservation of the life of the mother. By the time the Criminal Code of 1892

[Page 645]

was enacted, both antiseptic surgical procedures and delivery of children by Caesarean section had been discovered but the Code adopted the general defence for surgical operations and the specific defence in respect of the killing of a child at birth, that is a viable child.

In the present case we are concerned with an abortion performed well before the viability of the unborn child, taking viability to arise not before the end of the twentieth week of pregnancy. It is a matter of evidence here that abortion procedures are now medically and surgically safe and it would be, in my opinion, incongruous indeed if the progress of surgery should be regarded as having the effect of excluding a defence which would have been open at the time that s. 45 was first enacted (as s. 57) in 1892.

It is urged, however, that because s. 45 as a defence to abortion does not appear to have been used before now it cannot be regarded as having been available at the time it was introduced into the Criminal Code or to have become available thereafter. The answer may lie in two directions; first, reluctance to prosecute surgeons and, second, the influence of English precedent since there was no s. 45 or equivalent provision in English law. Indeed, not until the Infant Life Preservation Act, 1929, was there any provision in English law simi­lar to that found in s. 221(2) of the Criminal Code.

There is some incongruity in the fact that although English law lacked a s. 45, a result with a wider effect was reached by judicial decision in R. v. Bourne[10]. There, a surgeon invited an indictment for performing an abortion upon a fourteen year old girl who had been raped and who was described, in physical terms, as normal and healthy. The surgeon and other medical witnesses

[Page 646]

were of opinion that the continuation of the preg­nancy constituted a substantial danger to health. The Crown conceded that it would be a good defence if there was a danger to life, but not otherwise, and contended that there was a funda­mental difference between saving life and preserv­ing health. The trial Judge, Macnaghten J. agreed with the defence position and charged the jury accordingly. He told them, in part (at p. 694 of the K.B. report) that if a doctor is of opinion on reasonable grounds and with adequate knowledge that the probable consequence of the continuation of the pregnancy will be to make the woman a physical or mental wreck, the jury were quite entitled to take the view that the doctor who, under those circumstances and in that honest belief operates, is operating for the purpose of preserving the life of the mother. The jury acquit­ted on the basis of the charge in which they were also warned that there was no justification for abortion on demand and, on the other hand, nei­ther was it the law that an abortion was unjustified under any circumstances.

Writers have viewed the Bourne case as resting on the defence of necessity, notwithstanding that the charge of the trial Judge invoked the word "unlawfully" in the English abortion legislation as an indication that not all abortions are unlawful, and notwithstanding that he took a wider view of the defence in the Infant Life Preservation Act, 1929, than its words expressed in holding that defence to be applicable to abortions as a reflec­tion of the common law: See Glanville Williams, The Sanctity of Life and the Criminal Law (1957), at p. 162; Smith and Hogan, Criminal Law (3rd ed. 1973), at p. 158.

Whether or not the Bourne case be regarded as having taken an exceptional view of the law (see D. Seaborne Davies, Law of Abortion and .Neces­sity (1938), 2 Mod. L. Rev. 126), it was accepted in later cases by the application of its principle, as in R. v. Bergmann and Ferguson, an unreported case in 1948 in which Morris J. charged the jury in similar terms of honest belief (see the passage in

[Page 647]

Glanville Williams, op. cit., at p. 178 and in R. v. Newton and Stungo[11]). There the jury was charged that the use of instruments to procure a miscar­riage was unlawful unless the use is made in good faith for the purpose of preserving the life or health of the woman, not only her physical health but her mental health as well. One of the accused doctors was convicted of manslaughter and the other was acquitted on a charge of being an acces­sory before the fact to using an instrument to procure a miscarriage. Stephen's Digest of the Criminal Law (9th ed. 1950) at p. 232, cites the Bourne case in support of a proviso to the offence of procuring an abortion, the proviso being that no offence is committed if the person performing the • abortion being a person of competent medical skill, does so for the purpose of preserving the woman from reasonably apprehended danger then or thereafter to her life if her pregnancy continues.

In referring to the wider effect of a defence to abortion given by the Bourne doctrine than by s. 45, I have in mind a subjective aspect of the test that the Bourne case sets up, namely, that honest belief, good faith of the surgeon is the issue, relative to the preservation of the life or health of the mother (an issue, moreover on which the burden is on the prosecution) whereas s. 45 appears to me to raise only an objective question for the jury. The only reported Canadian case of which I am aware which, without any reference to s. 45, has any affinity to the Bourne case is the early case of Re McCready[12], where Lamont J. of the Saskatchewan Supreme Court was considering extradition proceedings in respect of an abortion performed in the United States and, after referring to the abortion provisions of the Criminal Code, he said this (at p. 485):

From the evidence before me I cannot say that the operation which was performed and which resulted in the miscarriage might not have been necessary to preserve her life, in which case it is not unlawful. Every

[Page 648]

miscarriage brought about by a physician is not unlawful.

I am bound to observe that Lamont J. relied on the presence of the word "unlawfully" in the abortion provisions of the Code, a word which, as already noted, was removed in the Criminal Code revision effected by 1953-54 (Can.), c. 51. The removal of the word, under modern drafting styles, was simply the removal of a redundancy which reflected an older style of drafting. In my opinion, it was not the controlling element in the approach taken in Bourne.

The word "unlawfully" remains as part of the English abortion law under the Abortion Act of 1967, which incorporates the offence as it was defined in the Offences against the Person Act, 1861, and then goes on to provide for medical termination of abortions, without culpability, under conditions similar to but wider than those permitted by s. 251(4). I reproduce ss. 1 and 5(2) of the English Act which read as follows:

1. (1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medi­cal practitioners are of the opinion, formed in good faith

(a) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated; or

(b) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.

(2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) of subsection (1) of this section, account may be taken of the pregnant woman's actual or reasonably foreseeable environment.

(3) Except as provided by subsection (4) of this section, any treatment for the termination of pregnancy must be carried out in a hospital vested in the Minister of Health or the Secretary of State under the National Health Service Acts, or in a place for the time being approved for the purposes of this section by the said Minister or the Secretary of State.

[Page 649]

(4) Subsection (3) of this section, and so much of subsection (1) as relates to the opinion of two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of the opinion, formed in good faith, that the termination is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.

5....

(2) For the purposes of the law relating to abortion, anything done with intent to procure the miscarriage of a woman is unlawfully done unless authorized by section 1 of this Act.

Under these provisions, it is not only true that s. 1(1)(a) provides a wider protection than the Bourne case, but it appears to me that s. 1(4) provides wider exculpation than would be provided by s. 45 if there was such a provision in England. It is not surprising therefore that Smith and Hogan, Criminal Law (3rd ed. 1973) should say, at p. 279, that "it seems clear that [s. 5(2)] is intended entirely to supersede the law as laid down in Bourne".

The course of judicial decision and of legislation in England reinforces my opinion that s. 45 was available as a defence to a medical practitioner who performed an abortion which would otherwise be punishable under s. 251 as it stood before 1969. This brings me to consider whether s. 251(4), enacted in 1969, had the effect of precluding reliance on s. 45 as a defence. It is not difficult to envisage situations which would support either a s, 45 or a Bourne necessity defence, despite s. 251(4), as, for example, where a doctor is called upon to perform an abortion in an area of the country where a therapeutic abortion committee could not be assembled, or where abortional surg­ery is performed in urgent circumstances by a competent surgeon who may not be licensed under the relevant provincial law. I need not be con­cerned here with whether there would be any attempt to prosecute in such cases if the surgery was successful, because the facts here do not bring

[Page 650]

the present case within the exact suggested situations.

An urban area may nonetheless be no different from and, indeed, more alien than a remote area to a friendless young woman, a native of another country and a comparative stranger in Canada, who is alone, frightened by her pregnancy and without the means or access to means to be able to invoke the elaborate procedures of s. 251(4), and who in desperation seeks the assistance of a quali­fied surgeon who in his honest judgment feels that immediate abortional surgery should be performed, and carries it out to preserve the young woman's mental health, if not also her physical health. I think it entirely reasonable in such cir­cumstances that s. 45 should be available as a defence to be left to the jury. It might be otherwise if s. 251(4) had in it the kind of saving provision that is found in s. 1(4) of the English Act of 1967, but s. 251(4) contains no such leeway to excuse the requirement of the opinion of other medical practitioners or use of an approved hospital as is pro­vided under the English Act.

During the course of the trial, when evidence was tendered in support of a defence under s. 45, the trial Judge, Hugessen A.C.J., found it neces­sary to rule on the availability of s. 45 as a defence after the enactment of s. 251(4). He took the point that s, 251 (4) (and its companion provisions s. 251(5), (6)) could have an application where s. 45 would not apply, and that is where a drug or other noxious substance was the means employed for an abortion, rather than a surgical operation: see R. v. Morgentaler (No. 4)[13]. Since the present case deals with a surgical operation, which is within both s. 251(4) and s. 45, nothing is added by the point taken by the learned trial Judge, unless it be the fact that where s. 251(4) has been satisfied no offence has been committed, whereas under s. 45 there is simply protection from criminal responsi­bility if an accused brings himself within it under the limited requirements of proof applicable where

[Page 651]

an accused has the carriage of an issue.

I am not only satisfied that s. 45 remains available as a defence but also that there was evidence upon which the trial Judge could leave that defence to the jury. In charging the jury on this defence, the trial Judge told them that it had a wider and more detailed import than the defence of necessity which he also put to them, (I deal with this defence later in these reasons), and he pro­ceeded to outline the elements of a s. 45 defence and then to relate the evidence to those elements. It is important to notice that in explaining the elements of s. 45 to the jury the trial Judge put it to them that the required regard "to all the cir­cumstances of the case" in s. 45 brought into play s. 251(4) itself as a circumstance bearing on the .resort to s. 45: see R. v. Morgentaler (No. 5)[14].

I have already noted that a s. 45 defence, which is posited on reasonableness in the various particu­lars mentioned therein, raises a question which goes beyond mere honest belief or good faith of the doctor, so that it is for the jury to determine whether it is as probable as not that the require­ments of the section have been met. The belief and good faith of the doctor are admissible elements referable to what the jury must determine, but they do not themselves conclude the issue in his favour under s. 45.

The defence of necessity raises considerations which on one view, that underlying the Bourne case, gives a wider defence than s. 45 and on another view is much narrower in scope if, indeed, it is at all open. The members of the Quebec Court of Appeal variously viewed s. 45 and the defence of necessity as intertwined or as related (at least in this case), and it seems to me also that, in failing to distinguish the objective character of s. 45 from the subjective aspect of the Bourne doctrine, some

[Page 652]

members of that Court were led into error in postulating that to allow a s. 45 defence in the face of s. 251(4) would be to countenance abortion on demand, a position rejected by counsel for the appellant, and rightly so in my opinion.

There are views on the defence of necessity which would limit it very severely and in respect of which the Bourne case would be regarded as an exception. Kenny's Outlines of the Criminal Law (19th ed. 1966) states the strict view, albeit expressing doubt in view of R. v. Dudley and Stephens[15], whether necessity could ever be a defence to a homicide. The author says this (at p. 73):

Probably no such defence can be accepted in any case (1) where the evil averted was a lesser evil than the offence committed to avert it, or (2) where the evil could have been averted by anything short of the commission of that offence, or (3) where more harm was done than was necessary for averting the evil. Hence it is scarcely safe to lay down any more definite rule than that suggested by Sir James Stephen, viz. that "it is just possible to imagine cases in which the expediency of breaking the law is so overwhelmingly great that people may be justified in breaking it; but these cases cannot be defined beforehand.

See also Smith and Hogan, Criminal Law, (3rd ed. 1973), at p. 159. Williams, Criminal Law, (2nd ed. 1961) takes a more liberal view saying (at p. 724) that notwithstanding the doubts expressed by others, "it will be here submitted somewhat confi­dently that the defence is recognized in English law". Whether its limits can be defined in any general way is another matter. In his review of the authorities, Williams asserts that in most of them that have recognized the defence the act was done to preserve life. He assessed the defence of necessi­ty as follows:

Generally, the doctrine is limited to cases where the harm sought to be avoided is an immediate and physical one. Thus necessity is no excuse for the deliberate creation of a nuisance: the sanction of statute must be

[Page 653]

obtained, even though the nuisance is for the public benefit. It is only Parliament that can decide when private rights are to be subordinated to general econom­ic well-being. Even when the defendant aims at the avoidance of suffering, he is justified in breaking the law only in circumstances of emergency. Thus a surgeon who supplied morphine for use in mountaineering first-aid stations was convicted by magistrates, since the Dangerous Drugs Act contained no exception for such supply.

However, exceptional cases may occur where the defence may be stretched beyond this .. .

The decision in Bourne, which has already been referred to, may also be regarded as exceptional .. .

In his charge to the jury on necessity as a defence, the trial Judge said this (as translated in 14 C.C.C. (2d) 459, at p. 460):

I can summarize the defence of necessity for you, then, in the following way: the law, in certain circum­stances, allows an illegal act, because it is absolutely necessary, to become, by this very fact, legal. However, the term necessary does not mean preferable, to be wished for, or desirable, but, on the contrary, that it is the only solution by which to avoid a disaster to a person's life or health which would otherwise be not only probable but unavoidable.

The Quebec Court of Appeal was of the opinion, founding itself on a strict view of the second element quoted from Kenny, supra, that there was simply no evidentiary basis for a conclusion that there was any impossibility of complying with s. 251(4) (per Casey J.A.) or that there was any obvious and immediate necessity or a grave emer­gency (per Rinfret J.A.), or that there was any necessity and urgency of acting (per Crete J.A.), or that the decision of the accused to perform the abortion was taken in good faith in accordance with the requirements of the defence of necessity, involving the impossibility of complying with s. 251(4) (per Bélanger J.A.), or that it was neces­sary to proceed immediately with the abortion and without having furnished evidence that it was then impossible to meet the requirements of s. 251(4) (per Dubé J.A.).

It appears quite clearly that what the Quebec Court of Appeal saw in the defence of necessity

[Page 654]

was urgency of such a nature as to make it impos­sible to obtain a lawful abortion under s. 251(4). The test it would apply parallels that which can rarely be met, if at all, where the charge against the accused is one arising out of homicide. I am not prepared to take the same stringent view of urgency and impossibility as did the Quebec Court of Appeal, and I would observe, moreover, that there is a danger here in usurping the function of the jury on that question according to the way in which it is defined. I do not doubt, of course, that the necessity must arise out of danger to life or health and not merely out of economic circum­stances, although the latter may have an effect in producing the danger to life or health.

The trial Judge in charging the jury on necessity could only have done so on the basis that there was evidence to go to the jury on which they could make a finding that the defence was made out. Since the charge arose out of a surgical operation and since provision existed for a lawful therapeutic abortion under s. 251(4), the evidentiary question, in the light of the law which was put to the jury, is whether there were more emergent circumstances than those reflected in s. 45 upon which the jury could act, if it so chose, despite the provision for a lawful abortion under s. 251(4). In my opinion, there was some such evidence in the present case, evidence of the accused that he feared that the pregnant woman would do something foolish unless she was given immediate professional medi­cal attention to relieve her condition and her anx­iety. The jury was entitled, if it so chose, to consider this evidence as raising an emergency situation in the light of the fact that the woman was a friendless stranger in this country, adrift more or less in an unfamiliar urban locality. It was for the jury to say whether in such circumstances the harm sought to be avoided by performing the abortion was an immediate and physical one (to use the words of "Williams", above quoted) and whether there was enough of an emergency in this respect facing the accused as to make it certain

[Page 655]

that there could be no effective resort to the machinery of s. 251(4) to cope with the emergency.

I need hardly say that the sufficiency of evi­dence on any issue is a matter for the jury, which alone is charged to accept what it chooses and to weigh what it accepts in the light of the law given to it by the trial Judge. The jury discharged this function in this case; and once it is decided, as in my opinion is the case here, that there was evi­dence to go to the jury on the two defences which, again in my opinion, were properly left to the jury, the jury's verdict is not one which can be lightly interfered with, by an appellate court.

In the result, I would allow the appeal, set aside the conviction registered by the Quebec Court of Appeal and restore the jury's verdict of acquittal. I refrain from any conclusion as to what would have been the appropriate course in this case if I had been of the opinion that neither of the two defences should have been left to the jury. It is clear, of course, that if one only of the two defences should properly have been left to the jury, the proper order would have been to direct a new trial.

Martland, Ritchie, Beetz and de Grandpré JJ. concurred win the judgment delivered by

PIGEON J.—The charge on which the appellant was tried on a preferred indictment was in the following terms:

[TRANSLATION] On or about the 15th day of August, 1973, with intent to procure the miscarriage of a female person, to wit, VERONA PARKINSON, whether or not she was pregnant, used some means for the purpose of carrying out his intention, to wit, the manipulation and use of an instrument, thereby committing an indictable offence contrary to Section 251 (1) Cr. C.

The relevant provisions of s. 251 of the Criminal Code read:

251. (1) Every one who, with intent to procure the miscarriage of a female person, whether or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and is liable to imprisonment for life.

[Page 656]

(3) In this section, "means" includes

(a) the administration of a drug or other noxious thing,

(b) the use of an instrument, and

(c) manipulation of any kind.

(4) Subsections (1) and (2) do not apply to

(a) a qualified medical practitioner, other than a member of a therapeutic abortion committee for any hospital, who in good faith uses in an accredited or approved hospital any means for the purpose of carry­ing out his intention to procure the miscarriage of a female person,

if, before the use of those means, the therapeutic abor­tion committee for that accredited or approved hospital, by a majority of the members of the committee and at a meeting of the committee at which the case of such female person has been reviewed,

(c) has by certificate in writing stated that in its opinion the continuation of the pregnancy of such female person would or would be likely to endanger her life or health, and

(d) has caused a copy of such certificate to be given to the qualified medical practitioner.

(6) For the purposes of subsections (4) and (5) and this subsection

"therapeutic abortion committee" for any hospital means a committee, comprised of not less than three members each of whom is a qualified medical practi­tioner, appointed by the board of that hospital for the purpose of considering and determining questions relating to terminations of pregnancy within that hospital.

The trial took place before a judge and jury. The accused did not deny having performed the abortion with which he was charged. On the con­trary, testifying in his own defence, he admitted having "helped" in the same way a large number of pregnant women. Some of the grounds of defence urged in a very lengthy trial were that this was a case of necessity for the operation and that it was justified by s. 45 of the Criminal Code which is in the following terms:

[Page 657]

45. Every one is protected from criminal responsibili­ty for performing a surgical operation upon any person for the benefit of that person if

(a) the operation is performed with reasonable care and skill, and

(b) it is reasonable to perform the operation, having regard to the state of health of the person at the time the operation is performed and to all the circum­stances of the case.

The trial judge ruled that the accused was entitled to claim the benefit of this provision although no effort had admittedly been made to submit the woman's case to a hospital therapeutic abortion committee in accordance with s. 251(4). He left to the jury to decide whether the accused had made good his above mentioned defences to the extent of raising a reasonable doubt as to his guilt. A verdict of acquittal was returned.

On appeal by the Crown it was unanimously held that the trial judge had erred in law, the verdict of acquittal was set aside and a conviction was entered with a direction to the trial judge to pass sentence.

On the appeal to this Court, it was contended:

(a) that s. 251 of the Criminal Code is unconstitutional;

(b) that it is inoperative by virtue of the Canadian Bill of Rights;

(c) that the preferred indictment was void as constituting an abuse of power by the provincial attorney general;

(d) that the accused was entitled to the benefit of the defences of necessity and of s. 45;

(e) that the operation performed was not within the intendment of s. 251;

(f) that the Court of Appeal could not substi­tute a conviction for an acquittal in a jury trial.

Notice of the constitutional question was given and the Attorney General of Canada intervened to support the constitutional validity of s. 251 Cr.C. The Canadian Civil Liberties Association and The

[Page 658]

Foundation for Women in Crisis were given leave to intervene to support the attack based on the Canadian Bill of Rights. Alliance for Life, La Fondation pour la Vie, Le Front commun pour le Respect de la Vie, and l'Association des Médecins du Québec pour le Respect de la Vie were also permitted to intervene in order to oppose such attack.

After hearing counsel for the appellant and for the two intervenants supporting the attack against s. 251, the Court unanimously decided that no case had been made out to require hearing counsel for the Crown or the intervenants on the constitutional validity of s. 251, the effect of the Bill of Rights and the validity of the preferred indictment. Thus, the only points raised on the appeal which remain to be considered are the last three above enumerated.

Dealing first with the defences of necessity and of s. 45, it must be noted that while the five judges who heard the case in appeal were all of the view that these were not available to the accused, their reasons for so deciding were not identical, especial­ly with respect to s. 45.

Concerning the defence of necessity, Casey J.A. relied on Kenny's opinion the conclusion of which is:

Probably no such defence can be accepted in any case (I) where the evil averted was a lesser evil than the offence committed to avert it, or (2) where the evil could have been averted by anything short of the commission of that offence, or (3) where more harm was done than was necessary for averting the evil. Hence it is scarcely safe to lay down any more definite rule than that suggested by Sir James Stephen, viz. that 'it is just possible to imagine cases in which the expediency of breaking the law is so overwhelmingly great that people may be justified in breaking it; but these cases cannot be defined beforehand'.

In the end, Casey J.A. concluded:

Nowhere is it shown that Respondent made any effort, as was his duty, to find out why this woman couldn't comply with the law nor do I find anything tending to establish that such compliance was impos­sible. Assuming on the need issue that there was something

[Page 659]

for the jury to consider the complete absence of proof on the other leads inescapably to the conclusion that a properly directed jury—necessarily would have convicted.

The views expressed by the other judges were not significantly different on this question. As I read them they were all of the view that there was no evidence of the urgent necessity which, as the Crown conceded may, in very exceptional circum­stances, justify a violation of the criminal law, this being a common law defence preserved by s. 7(3) of the Criminal Code. Before this Court, nothing was said that would tend to show that there was any evidence of an urgent necessity for effecting the abortion in disregard of s.251 Cr.C. In Parner­kar v. The Queen[16], (at p. 454) Fauteux C.J., speaking for a majority, said:

If, then, the record is denuded of any evidence potential­ly enabling a reasonable jury acting judicially to find a wrongful act or insult of the nature and effect set forth in s. 203(3)(a) and (b), it is then, as a matter of law, within the area exclusively reserved to the trial judge to so decide and his duty to refrain from putting the defence of provocation to the jury.

This reasoning is clearly applicable to every defence, seeing that it rests on the fundamental definition of the respective roles of judge and jury. I am therefore of the opinion that the Court of Appeal was correct in holding that the trial judge erred in putting the defence of necessity before the jury as there was no evidence to support it.

Concerning s. 45, three of the judges who sat on the case in appeal were of the view that this provision was not available as a defence to a charge under s. 251(1), while the other two, namely, Casey and Rinfret JJ.A., appear to hold only that it was not available in the circumstances of the. present case. I think that the majority opinion is the correct view to be taken of the

[Page 660]

Criminal Code as it presently stands. When by s. 18 of the Criminal Law Amendment Act 1968-69, Parliament added subsections (4), (5), (6) and (7) to what was then s. 237 of the Criminal Code (comprising what is now s. 251, subs. (1), (2) and (3)), an explicit and specific definition was made of the circumstances under which an abortion could lawfully be performed. Essentially the requirements are that this must be done by a qualified medical practitioner in an accredited or approved hospital under the authority of a certifi­cate of the latter's therapeutic abortion committee stating "that in its opinion the continuation of the pregnancy" of the woman "would or would be likely to endanger her life or health".

It would be wholly inconsistent with those requirements to read s. 45 as protecting from criminal responsibility any person who performs the operation anywhere provided only that it is done with reasonable care and skill, and it is reasonable having regard to the state of health of the woman. Section 251 plainly requires that the necessity of the operation be determined by a therapeutic abortion committee, independently of the partitioner performing it and goes so far as to specify that this practitioner cannot be a member of the committee. It is also required that this be done in an accredited or approved hospital. All those elaborate provisions would be meaningless if they could be ignored by virtue of s. 45.

These considerations are, in my view, so decisive that I find unnecessary to consider the elaborate material with which we were provided respecting the origins of s. 45 which remained practically unchanged from the enactment of our first crimi­nal code to this day and have never, in all those years, been claimed to authorize what was specifi­cally forbidden by what is now s. 251.

For much the same reason I find it unnecessary to say much about R. v. Bourne[17]. When that case was decided, the law on abortion in England was

[Page 661]

much the same as our own law before the 1968-69 amendments. In the absence of any explicit provi­sion applicable to the sad case of a fourteen year old girl pregnant by reason of a rape for which her assailant had been convicted, there was good reason to consider this a case of necessity. This is how the decision is viewed by many writers. However, our law having now determined how such cases ought to be dealt with, the decision appears to be of historical interest only. I would also note that the operation was performed as an act of charity without a fee, not in the course of a lucrative business such as appellant's was.

With respect to the submission that the opera­tion performed by the accused did not come within the intendment of s. 251(1), it appears to me to rest only on some dictionary definitions of miscar­riage, ignoring the wider meaning of "avortement" in the French version as well as the definition of "means". By specifying the use of an instrument, this clearly covers a surgical abortion as practised by the accused. In any case, the amendments by referring to "terminations of pregancy" make it indisputable that all such operations are included in the expression "using means for the purpose of carrying out his intention to procure the miscar­riage of a female person".

The last question to be considered is whether the Court of Appeal could in the present case, where the appeal was from an acquittal by a jury, enter a verdict of guilty. The provisions defining the powers of the Court of Appeal in such case are those of subs. (4) of s. 613 which are as follows:

(4) Where an appeal is from an acquittal the court of appeal may

(a) dismiss the appeal; or

(b) allow the appeal, set aside the verdict and

(i) enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in Iaw, or

(ii) order a new trial.

[Page 662]

Because the order of the Court of Appeal in this case appears to be without precedent, a review of the relevant legislative history is desirable. Under the Criminal Code as enacted in 1892, an appeal by the Crown against an acquittal was possible only when a question of law had been reserved for the opinion of the Court of Appeal (1892 (Can.) c. 29, s. 743). However, if the Court trying the case refused to reserve the question, a motion for leave to appeal could be made to the Court of Appeal with the leave in writing of the Attorney General. If leave was granted, a case was stated as if the question had been reserved (s. 744). By an amendment in 1900, the leave of the Attorney General was no longer required (1900 (Can.) c. 46). A further amendment in 1909 provided that the application to the trial court to have the question reserved could be made "during or after the trial" (1909 (Can.) c. 9). The result was that the Crown had a right of appeal from an acquittal on any question of law by leave of the trial judge or of the Court of Appeal.

In 1923 (1923 (Can.) c. 41, s. 9), all the sections dealing with appeals to the Court of Appeal were replaced by what was practically a verbatim copy of the U.K. Criminal Appeal Act of 1907 (1907 (U.K.) c. 23). The only important differences were:

(a) A right of appeal against sentence by the Crown as well as the accused, not by the accused only as in the English Act;

(b) Provision for a new trial when a conviction is quashed.

The essential parts of the new enactment were:

1013. (1) A person convicted on indictment may appeal to the court of appeal against his conviction—

(a) on any ground of appeal which involves a question of law alone; and

(b) with leave of the court of appeal, or upon the certificate of the trial court that it is a fit case for appeal, on any ground of appeal which involves a

[Page 663]

question of fact alone or a question of mixed law and fact; and

(c) with leave of the court of appeal, on any other ground which appears to the court of appeal to be sufficient ground of appeal.

(2) A person convicted on indictment, or the Attor­ney General, or the counsel for the Crown at the trial may with leave of a judge of the court of appeal, appeal to that court against the sentence passed by the trial court, unless that sentence is one fixed by law... .

1014....

(3) Subject to the special provisions contained in the following sections of this Part, when the court of appeal allows an appeal against conviction it may—

(a) quash the conviction and direct a judgment and verdict of acquittal to be entered; or

(b) direct a new trial;

and in either case may make such other order as justice requires.

While those amendments gave to the Crown a right of appeal in respect of the adequacy of the sentence and not merely its legality, they took away its right of appeal from an acquittal on a question of law. There seems to have been an oversight, they left intact the provision (1921 (Can.), c. 25, s. 18) for appeals to this Court "by any person whose acquittal has been set aside".

The right of appeal by the Crown on a question of law from an acquittal in the trial court, was reestablished in 1930 (1930 (Can.), c. 11, s. 28). This was done by replacing subs. (4) and (5) of s. 1013 (which excluded separate judgments in appeal unless, on a question of law, the Court found it convenient), by the following:

(4) Notwithstanding anything in this Act contained, the Attorney General shall have the right of appeal to the court of appeal against any judgment or verdict of acquittal of a trial court in respect of an indictable offence on any ground of appeal which involves a ques­tion of law alone.

(5) The procedure upon such an appeal and the powers of the court of appeal, including the power to grant a new trial, shall mutatis mutandis and so far as

[Page 664]

the same are applicable to appeals upon a question of law alone, be similar to the procedure prescribed and the powers given by sections one thousand and twelve to one thousand and twenty-one of this Act, inclusive, and the Rules of Court passed pursuant thereto, and to section five hundred and seventy-six of this Act.

The first case in which those provisions were considered in this Court was Belyea v. The King[18]. Being a prosecution under the Combines Investi­gation Act, it had perforce been tried by a judge without a jury[19]. The acquittal had been set aside on appeal by the Crown and the Court of Appeal had entered a conviction[20]. Anglin C.J.C. speaking for the Court, concluded his observations on the construction of the new enactment as follows (at p. 297):

... It does seem rather a strong thing to hold that the effect of the words "mutatis mutandis" is that clause (a) must be made to read, on an appeal (by the Attor­ney-General) being allowed, to

(a) quash the acquittal and direct a judgment and verdict of conviction to be entered;

yet that, apparently, was the construction put upon this provision by the Appellate Division.

It occurred to some members of this Court that, under such circumstances as are here present, the correct course would be to apply clause (b) and to direct a new trial. That idea, however, would seem to involve a lurking suspicion that we are, in fact, reversing the trial judge on a question of fact, whereas, in reality, we do nothing of the kind, but, on the contrary, we affirm the facts found by him, and, upon them, we reach the conclusion that the only course open to the Appellate Division was to allow the appeal and convict the present appellants, giving to the words "mutatis mutandis" the effect given them by the Appellate Division, which we certainly are not convinced was wrong.

In the 1955 Criminal Code, the 1923 and 1930 amendments were reproduced practically unchanged. The right of appeal by the Crown against acquittal and against sentence was dealt

[Page 665]

with in the same s. 584 (now 605). The mutatis mutandis provision was replaced by subs. (4) of s. 592 (now 613) as to which we read in Martin's Criminal Code, 1955, p. 900:

Subsec. (4) is the former s. 1013(5) and sets out what is there incorporated by reference.

No change was made in s. 594(4) (now 615(4) which still reads:

(4) The power of a court of appeal to impose sentence may be exercised notwithstanding that the appellant is not present.

The key provisions now read:

603. (1) A person who is convicted by a trial court in proceedings by indictment may appeal to the court of appeal

(a) against his conviction

(i) on any ground of appeal that involves a question of law alone,

(ii) on any ground of appeal that involves a ques­tion of fact or a question of mixed law and fact, with leave of the court of appeal or a judge thereof or upon the certificate of the trial judge that the case is a proper case for appeal, or

(iii) on any ground of appeal not mentioned in subparagraph (i) or (ii) that appears to the court of appeal to be a sufficient ground of appeal, with leave of the court of appeal; or

(b) against the sentence passed by the trial court, with leave of the court of appeal or a judge thereof unless that sentence is one fixed by law.

(2) A person who

(a) is found unfit, on account of insanity, to stand his trial may appeal to the court of appeal against that verdict, or

(b) is found not guilty on account of insanity may appeal to the court of appeal against that special verdict.

on any ground of appeal mentioned in subparagraph (1)(a)(i), (ii) or (iii) and subject to the conditions therein.

[Page 666]

605. (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

(a) against a judgment or verdict of acquittal of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone, or

(b) with leave of the court of appeal or a judge thereof, against the sentence passed by a trial court in proceedings by indictment, unless that sentence is one fixed by law.

613. (1) On the hearing of an appeal against a con­viction or against a verdict that the appellant is unfit, on account of insanity, to stand his trial, or against a special verdict of not guilty on account of insanity, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice;

(b) may dismiss the appeal where

(i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment,

(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and

(a) direct a judgment or verdict of acquittal to be entered, or

(b) order a new trial.

(3) Where a court of appeal dismisses an appeal under subparagraph (1)(b)(i), it may substitute the verdict that in its opinion should have been found and affirm the sentence passed by the trial court or impose a sentence that is warranted in law.

(4) Where an appeal is from an acquittal the court of appeal may

(a) dismiss the appeal; or

(b) allow the appeal, set aside the verdict and

[Page 667]

(i) enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or

(ii) order a new trial.

As is underscored by my underlinings, the words used in s. 605(1) granting the right of appeal from an acquittal clearly include a judgment at trial with or without a jury, these words being "a judgment or verdict of acquittal." However, in s. 613 defining the powers of a Court of Appeal, the word "verdict" only is found in subs. (4) dealing with acquittals while, in the preceding subsections dealing with appeals from convictons [sic] or special verdicts, only one of those words is sometimes used. It must also be noted that in Part XVI entitled "Indictable Offences—Trial without a Jury", the word "verdict" is never used, and in Part XVII "Procedure by Indictment", "verdict" is used only as meaning a jury verdict.

After anxious consideration, I do not find it possible to read s. 613(4) as not authorizing the Court of Appeal in a proper case to enter a verdict of guilty where the accused was tried by a jury. In the first line of para. (b) the words "allow the appeal, set aside the verdict" necessarily apply to a jury verdict after such a trial as well as to an acquittal by a judge. The right of appeal being from "a judgment or verdict of acquittal", the single word "verdict" necessarily includes a "judg­ment" as well as a "verdict". Then, the same word "verdict" in the following line must have the same meaning. If Parliament had intended otherwise, the word "judgment" or "conviction" would be used. If either of those words were found there, the provision might be interpreted otherwise, but, faced with the word "verdict", I fail to see how it can be supposed that Parliament meant only a judgment, not a verdict.

Furthermore, the words "enter a verdict of guil­ty" appear specifically designed to remove any doubt that this was to be applicable in the case of

[Page 668]

a jury trial as well as in the case of an acquittal after a trial without a jury. Also the words " the offence of which, in its opinion, the accused should have been found guilty but for the error in law" appear specifically intended to overcome the dif­ficulty arising from the fact that a verdict of acquittal is a general verdict, so that there are no findings on which the Court of Appeal can rely to decide what the verdict would have been but for the error in law. If it had been intended that the Court of Appeal should be empowered to rely only on findings in the trial court, then the wording ought to have been "the offence of which the accused would have been found guilty but for the error in law". The insertion of the words "in its opinion" indicates that the Court of Appeal is empowered to reach its own conclusion from the evidence as to what the verdict should have been but for the error in law. This is in accordance with the following observations of Anglin C.J.C. in Belyea (at p. 296):

The right of appeal by the Attorney-General, conferred by s.1013(4), Cr.C., as enacted by c.11, s. 28, of the Statutes of Canada, 1930, is, no doubt, confined to "questions of law". That implies, if it means anything at all, that there can be no attack by him in the Appellate Divisional Court on the correctness of any of the findings of fact. But we cannot regard that provision as excluding the right of the Appellate Divisional Court, where a conclusion of mixed law and fact, such as is the guilt or innocence of the accused, depends, as it does here, upon the legal effect of certain findings of fact made by the judge or the jury, as the case may be, to enquire into the soundness of that conclusion, since we cannot regard it as anything else but a question of law,—especially where, as here, it is a clear result of misdirection of himself in law by the learned trial judge.

This passage was quoted and relied on by Martland J. in Ciglen v. The Queen[21], (at p. 819), Wild v. The Queen[22], (at p. 117). Those are cases in which this Court upheld judgments entering a conviction on appeal by the Crown from an acquit­tal by a judge sitting without a jury. I have italicised the words indicating that Anglin C.J.C.

[Page 669]

was making no distinction between a jury and a non jury case. Of course, this is dictum only with respect to a jury case and has reference to the law as enacted in 1930.

It cannot be denied that to authorize a Court of Appeal to enter a verdict of guilty on an appeal from an acquittal by jury verdict is a major depar­ture from the traditional principles of English criminal law under which where an accused has been given in charge to a jury, none but the jury can find him guilty. It has been held in England that, even if he pleads guilty during the trial, the judge is without jurisdiction to enter a conviction so that if he does it and discharges the jury, his decision is a nullity and there must be a new trial. (R. v. Heyes[23]; R. v. Hancock[24].) If I could see any room for doubt as to the meaning of the words used in the Code, such considerations would be of great weight but I fail to see how they could overcome what appears to be the clear literal meaning.

It is true that, as a rule, the duty of a court of appeal is to render the judgement that the trial court should have rendered and it is certain that a trial judge cannot substitute a verdict of guilty for a verdict of acquittal. However, the situation is that, under our Criminal Code in what is clearly a fundamental departure from common law princi­ples, Parliament has not only provided for appeals against acquittals, but has also spelled out the powers which can be exercised on such appeals. It cannot therefore be objected that s. 429 provides: "Except where otherwise expressly provided by law, every accused who is charged with an indictable offence shall be tried by a court composed of a judge and jury." The Code expressly provides otherwise in s. 613(4) that the Court of Appeal may "enter a verdict of guilty". It can seem strange that this should be possible where the trial

[Page 670]

judge has made an error in law and thus opened the way to an appeal by the Crown from an acquittal, while no appeal would be possible if the jury had been properly directed. This, however, cannot be considered as an absurdity and therefore cannot justify a departure from the literal meaning of the enactment.

The last objection I can find against the exercise by the Court of Appeal of the power to enter a verdict of guilty in the instant case is the principle that powers conferred upon the courts are to be exercised as the justice of the case requires. It has been held in this Court that although the Court of Appeal may order a new trial when setting aside a conviction, such order cannot always properly be made. For instance, it should not be made in order to have the accused tried on a basis different from that on which the first trial was held (Savard and Lizotte v. The King)[25]. It does not appear to me that this objection can be sustained on the view that whenever the accused was tried with a jury, justice requires that he should never be found guilty except by a jury verdict. To so hold would be to deprive the enactment of any application in such cases and to read it as if it did not authorize the Court of Appeal to "enter a verdict of guilty".

Needless to say that this is obviously a power to be used with great circumspection. However, it is hard to conceive of a case in which it could be used, if not here. There cannot be any doubt concerning the commission of the offence by the accused. He has admitted the fact and denied his guilt only on the basis of some defences which the Court of Appeal rightly held unavailable, one of them because it was unfounded in law, the other because there was no evidence to support it.

For those reasons, I would dismiss the appeal.

[Page 671]

Since writing the above, I have had the advan­tage of reading the reasons written by Mr. Justice Dickson and wish to add that I agree with the further views he has expressed on the merits of this case.

Martland, Ritchie, Beetz and de Grandpré JJ. concurred in the judgment delivered by

DICKSON J.—It seems to me to be of impor­tance, at the outset, to indicate what the Court is called upon to decide in this appeal and, equally important, what it has not been called upon to decide. It has not been called upon to decide, or even to enter, the loud and continuous public debate on abortion which has been going on in this country between, at the two extremes, (i) those who would have abortion regarded in law as an act purely personal and private, of concern only to the woman and her physician, in which the state has no legitimate right to interfere, and (ii) those who speak in terms or moral absolutes and, for religious or other reasons, regard an induced abortion and destruction of a foetus, viable or not, as destruc­tion of a human life and tantamount to murder. The values we must accept for the purposes of this appeal are those expressed by Parliament which holds the view that the desire of a woman to be relieved of her pregnancy is not, of itself, justifica­tion for performing an abortion.

The jurisdiction of the Court is limited by s. 618(2) of the Criminal Code, pursuant to which this appeal has been brought, to questions of law. The legal question now before us is whether, in answer to the charge of unlawfully procuring the miscarriage of a female person, the appellant can raise as defences (i) s. 45 of the Criminal Code; (ii) necessity. The trial judge held that both of these defences were available and charged the jury to that effect. The jury returned a verdict of not guilty. The Crown appealed to the Court of Appeal of the Province of Quebec and five judges of that Court were unanimous in holding that neither defence should have been left to the jury. Accordingly the Court of Appeal acted under s. 613(4) of the Code which empowers it, where the appeal is from an acquital, to enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty

[Page 672]

but for the error in law. The position, therefore, in the present appeal is simply this: If the Court of Appeal is correct and neither of the two defences is open to the appellant, the guilty verdict must stand; if one of the two defences is open, the appellant in my opinion is entitled to a new trial; if both defences are open, the jury's verdict of acquittal should be reinstated.

Before considering possible defences it may be appropriate to observe that since Confederation, and indeed before, the law of Canada has regarded as criminal, interference with pregnancy, however early it may take place; in 1969, the law was to some extent modified to exclude from criminal sanction abortions for therapeutic reasons carried out in compliance with prescribed conditions. It should also be noted that the appellant admits having done the act with which he stands charged, procuring the abortion of Verona Parkinson. His response to that charge simply is that he had two defences, a statutory defence of s. 45 and a common law defence of necessity which the jury was entitled to consider.

I.

Section 251 of the Criminal Code, so far as relevant in these proceedings, reads:

251. (1) Every one who, with intent to procure the miscarriage of a female person, whether or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and is liable to imprisonment for life.

(2) Every female person who, being pregnant, with intent to procure her own miscarriage, uses any means or permits any means to be used for the purpose of carrying out her intention is guilty of an indictable offence and is liable to imprisonment for two years.

(3) In this section, "means" includes

(a) the administration of a drug or other noxious thing,

(b) the use of an instrument, and

(c) manipulation of any kind.

(4) Subsections (1) and (2) do not apply to

[Page 673]

(a) a qualified medical practitioner, other than a member of a therapeutic abortion committee for any hospital, who in good faith uses in an accredited or approved hospital any means for the purpose of carry­ing out his intention to procure the miscarriage of a female person, ... if, before the use of those means, the therapeutic abortion committee for that accredited or approved hospital, by a majority of the members of the committee and at a meeting of the committee at which the case of such female person has been reviewed,

(c) has by certificate in writing stated that in its opinion the continuation of the pregnancy of such female person would or would be likely to endanger her life or health, and

(d) has caused a copy of such certificate to be given to the qualified medical practitioner.

(6) For the purposes of subsections (4) and (5) and this subsection

"therapeutic abortion committee" for any hospital means a committee, comprised of not less than three members each of whom is a qualified medical practi­tioner, appointed by the board of that hospital for the purpose of considering and determining questions relating to terminations of pregnancy within that hospital.

Subs. (1) defines the offence. The offence is com­mitted when a person uses any means for the purpose of carrying out his intention of procuring the miscarriage of a female person. The means adopted may include the administration of a drug or other noxious thing, or the use of an instrument or manipulation of any kind. The appellant openly admits using an instrument for the purpose of procuring the miscarriage of Verona Parkinson. Subs. (2) provides that a pregnant female person who uses any means or permits any means to be used for the purpose of procuring her miscarriage is guilty of an indictable offence. Subs.(4) is of the utmost importance to any medical practitioner contemplating the use of any means to procure the miscarriage of a female person. This subsection is intended to afford, and does afford, a complete answer and defence to those who respect its terms. The subsection requires: (1) That the person procuring the miscarriage be a qualified medical practitioner,

[Page 674]

(2) The medical practitioner must not be a member of a therapeutic abortion committee for any hospital; (3) The medical practitioner must act in good faith; (4) The means used to procure the miscarriage must be used in a hospital accred­ited by the Canadian Council on Hospital Accredi­tation or approved by the provincial Minister of Health; (5) The hospital must have a therapeutic abortion committee comprised of not less than three members, each of whom is a qualified medi­cal practitioner, appointed by the board of that hospital for the purpose of considering and determining questions relating to terminations of preg­nancy within that hospital; (6) The committee at a meeting must review the case of the female person; The committee, by a majority of the members, must have agreed to the issuance of a certificate; The certificate must be in writing and must state that in the opinion of the committee the continuation of the pregnancy of such female person would or would be likely to endanger her life or health; (9) The committee must cause a copy of the certificate to be given to the medical practitioner who intends to procure the miscar­riage. It is only too obvious, on reading s. 251, that, first, Parliament regards procuring abortion as a grave crime which carries with it the same maximum penalty as non-capital murder; second, Parliament has recognized that continuation of pregnancy may endanger the life or health of a pregnant woman, and has, therefore, made provi­sion whereby pregnancy may be terminated by a qualified medical practitioner in an accredited or approved hospital; third, and for the purposes of the present case, of paramount importance, the decision whether or not to terminate the pregnancy is not that of the doctor who intends to perform the operation but of at least three of his peers, specially appointed to consider and determine questions relating to terminations of pregnancy; fourth, Parliament has not embodied in s. 251 a section similar to s. 1(4) of the English Abortion Act which relieves the medical practitioner of the need for independent medical opinions and a hos­pital setting prior to terminating a pregnancy in

... a case where he is of the opinion, formed in good faith, that the termination is immediately necessary to

[Page 675]

save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.

Counsel for the appellant would have us write into s. 251 a like dispensing provision though Parlia­ment has not chosen to legislate it. Whether one agrees with the Canadian legislation or not is quite beside the point. Parliament has spoken unmistak­ably in clear and unambiguous language. The starting point for proper judicial analysis of the legal position of appellant is the statute. Justice must be done within the framework of, and according to, the rules set out in the Criminal Code.

II.

Turning now to s. 45 of the Code. It is found under the heading "Protection of Persons in Authority". Two other sections fall under the same heading, s. 43, "Correction of child by force" and s. 44, "Master of Ship maintaining discipline." The next thing to note is that s. 45 has been in the Criminal Code since the year 1892, but, until the present case, no one has raised it as a defence to a charge of procuring an abortion. This is, of course, in no way determinative of the issue we face; if s. 45 offers a good defence, it is available to appel­lant, although raised now for the first time. The section is expressed in broad terms:

45. Every one is protected from criminal responsibility for performing a surgical operation upon any person for the benefit of that person if

(a) the operation is performed with reasonable care and skill, and

(b) it is reasonable to perform the operation, having regard to the state of health of the person at the time the operation is performed and to all the circum­stances of the case.

The essential ingredients of s. 45 are that the operation be performed with reasonable care and skill and that, having regard to the state of health of the person at the time the operation is performed and all the circumstances of the case, it is reasonable the operation be performed. The sec­tion is available to "every one", whether doctor or not, and the operation to which the section refers can be performed anywhere, within a hospital or

[Page 676]

not. Parliament in s. 251 has proscribed as crimi­nal conduct surgery procuring a miscarriage, except in conformity with precise and detailed protective measures including a qualified medical practitioner and an accredited or approved hospi­tal, yet, if the argument on behalf of appellant is correct, Parliament in s. 45 has protected from criminal responsibility any person who by surgical means procures a miscarriage anywhere, provided the operation is performed with reasonable skill and care and it is reasonable to perform it, having regard to the state of health of the person upon whom the operation is performed and to all the circumstances of the case. If the argument is valid, an abortion performed by surgical means could have the protection of s. 45 but not one performed by other means. Section 45 might protect the person performing the operation but not protect the woman from prosecution under s. 251(2). We must give the sections a reasonable construction and try to make sense and not nonsense, of the words. We should pay Parliament the respect of not assuming readily that it has enacted legislative inconsistencies or absurdities. The better opinion in my view is that s. 251 contains a comprehensive code on the subject of abortions, unitary and com­plete within itself, which the general language of s. 45 does not touch. Section 45 may be available as an answer to a charge arising out of a surgical operation performed on an unconscious patient but it is not, in my view, available as an answer to a charge of procuring an abortion contrary to s. 251. Section 251 is concerned with the procurement of a miscarriage, i.e., the bringing forth prematurely of the foetus. It is concerned only remotely, if at all, with surgical operations. According to our law, the appellant's only statutory means of defence was s. 251(4) of the Criminal Code.

III

In an attempt to escape the discipline of the statute, the appellant seeks to rely on an ill-defined and elusive concept sometimes referred to as the

[Page 677]

defence of necessity. The defence of necessity is as rare to Canadian jurisprudence as a s. 45 defence. Standard Canadian texts on criminal law either ignore or make scant reference to the subject. Save in the exceptional case of R. v. Bourne[26], to which I will later refer, the defence has never been raised successfully, so far as one can ascertain, in a criminal case in this country or in England. It was unavailing in U.S. v. Holmes[27], where, following a shipwreck, the sailors threw fourteen passengers overboard to lighten a lifeboat that was sinking and in R. v. Dudley and Stephens[28], where the accused, two seamen, after eighteen days adrift in an open boat and starving, killed a youthful com­panion and fed on his flesh four days, at the end of which time they were rescued. It was raised in Gregson v. Gilbert[29], where 150 slaves were pushed overboard because of water shortage. The defence of necessity has been held to permit encroachment on private property in the case of great and imminent danger: Mouse's case[30], where a casket belonging to Mouse and other things were thrown overboard in order to lighten a barge that was in danger of sinking during a storm. Necessity has been said to justify pulling down a house to prevent the spread of a fire, or the escape of prisoners from a burning prison and it has given rise to endless philosophizing on the right of a person in danger of drowning to push another from a floating plank in order to save himself. These are said to be examples of the defence of necessity, but no clear principle can be detected. It has been held that necessity cannot justify killing: R. v. Dudley and Stephens, supra, or the stealing of food by a starving man, Hale, Pleas of Crown I, 54 or the occupancy of empty housing by those in dire need of accommodation, Southwark London Borough Council v. Williams[31]. The courts have been reluc­tant to give recognition to the doctrine of necessity for, as Lord Denning M.R. said in the Williams case, p. 744: "Necessity would open a door which no man could shut" and "The plea would be an excuse for all sorts of wrongdoing." and Lord Justice Edmund Davies in the same case, p. 746,

[Page 678]

"—necessity can very easily become simply a mask for anarchy". The defence of necessity finds little support in the cases. Professor Glanville Williams, who has written frequently on abortion and the doctrine of necessity ((1952), 5 C.L.P. 128; (1953), 6 C.L.P. 216; The Sanctity of Life and the Criminal Law (1957)) introduces the subject "Authorities on the defence of necessity" in his text on Criminal Law (2nd ed. 1961) with the qualified statement, p. 724: "Notwithstanding the doubts that have been expressed, it will here be submitted somewhat confidently that the defence is recognized in English law." Compare, however, "The Necessity Plea in English Common Law" by P. R. Glazebrook, 1972 A Cambridge Law Jour­nal, 87 and see "The Defence of Necessity in Criminal Law: The Right to Choose the Lesser Evil" by Arnolds and Garland, (1974), 65 The Journal of Criminal Law and Criminology, 289. On the authorities it is manifestly difficult to be categorical and state that there is a law of necessi­ty, paramount over other laws, relieving obedience from the letter of the law. If it does exist it can go no further than to justify non-compliance in urgent situations of clear and imminent peril when com­pliance with the law is demonstrably impossible. No system of positive law can recognize any prin­ciple which would entitle a person to violate the law because on his view the law conflicted with some higher social value.

R. v. Bourne, supra, is sometimes quoted in support of the contention that there is a defence of necessity: for myself, I have some considerable reservations on the point. The facts in Bourne were undoubtedly exceptional. On April 27, 1938, the girl, who was then under the age of fifteen, had been raped with great violence, in consequence of which she became pregnant. Mr. Bourne, an obstetrical surgeon of highest skill, openly, at one

[Page 679]

of the great English hospitals, performed an abor­tion as an act of charity, without fee or reward. He was charged with using an instrument with intent to procure the miscarriage, contrary to the provisions of s. 58 of the Offences Against the Person Act, (1861 (U.K.), c. 10U). The indictment did not allege that the defendant had used the instrument "unlawfully"; and, before plea, counsel for Mr. Bourne objected that by reason of the omission of that word the indictment was bad. Macnaghten J. directed that the indictment should be amended by the addition of the word "unlawfully". In charging the jury, the judge referred to the Infant Life (Preservation) Act, (1929, (U.K.), c. 34) which made it an offence to cause a child to die before it had an existence independent of its mother, but contained a proviso that no person should be found guilty of an offence under the section unless it were proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother. No such proviso was in fact set out in s. 58 of the Offences Against the Person Act, 1861, under which Mr. Bourne was charged but Macnaghten J. concluded the word "unlawfully" in the latter Act was not a meaningless word but one which imported the meaning expressed by the proviso in the Infant Life (Preservation) Act, 1929, and, therefore, a burden rested on the Crown to satisfy the jury beyond reasonable doubt that the accused did not procure the miscarriage of the girl in good faith for the purpose only of preserving her life. The jury acquitted. It might be mentioned in passing that Macnaghten J. made this comment in the course of his charge to the jury, p. 695:

As I said at the beginning of my summing-up, it does not touch the case of the professional abortionist. As far as the members of the medical profession themselves are concerned—and they alone could properly perform such an operation—we may hope and expect that none of them would ever lend themselves to the malpractices of professional abortionists, and in cases of this sort, as Mr. Bourne said, no doctor would venture to operate except after consulting some other member of the profession of high standing.

The Bourne decision may be regarded as excep­tional and in a sense legislative. Although stated to

[Page 680]

exemplify the doctrine of necessity, the judge did not specifically rely on necessity. At the time of Bourne the law was unclear as to the legal position of a medical practitioner who procured an abortion on a girl whose life or health was endangered by continued pregnancy. The English statute did not then contain, although it now does, any provision for therapeutic abortion akin to s. 251(4) of the Code. The trial judge, through the word "unlaw­fully", imported such a concept and on the facts of that case it is of no surprise that the jury acquit­ted. The question of compliance with statutory law permitting therapeutic abortion did not arise. If the proponents of the existence of the defence of necessity have to rely on the case of Bourne—and the only support in modern jurisprudence would seem to come from that case and one or two which followed it—to support their position, the very uniqueness of Bourne both on facts and law may lead one seriously to question whether a defence of necessity can really be said to exist. I do not think the Bourne case is of great assistance to the appel­lant. In Bourne the trial judge imported into the charge the consideration of "preserving the life of the mother". That same concept finds statutory recognition in our abortion legislation but in the somewhat broader phraseology "likely to endanger her life or health." It is, therefore, clear that a medical practitioner who wishes to procure a miscarriage because continued pregnancy may endan­ger the life or health of his patient may legally do so if he secures the certificate mentioned in s. 251(4)(c). The defence of necessity, whatever that vague phrase may import, does not entitle a medi­cal practitioner, in circumstances of time and place such as those under consideration, to procure an abortion on his own opinion of the danger to life and health.

Assuming the theoretical possibility of such a defence in the present case, it remains to be seen whether there is evidence to support it. Amid the general imprecision and philosophic uncertainty discernible among the authors as to reach and effect of a defence of necessity, the most definite

[Page 681]

assertion would seem to be that found in Kenny's Outlines of the Criminal Law, 19th ed. (1966) where the author says, p. 73:

Probably no such defence can be accepted in any case (1) where the evil averted was a lesser evil than the offence committed to avert it, or (2) where the evil could have been averted by anything short of the commission of that offence, or (3) where more harm was done than was necessary for averting the evil. Hence it is scarcely safe to lay down any more definite rule than that suggested by Sir James Stephen, viz. that "it is just possible to imagine cases in which the expediency of breaking the law is so overwhelmingly great that people may be justified in breaking it; but these cases cannot be defined beforehand."

Kenny says, p. 72:

Yet though theoretical writers have been willing to accept this ground of defence, there is no English case in which the defence has been actually raised with success.

Turning our attention to Kenny's (2), we must ask whether the evil averted could have been averted by anything short of the commission of the offence. This raises the question of the urgency of the operation performed by the appellant and whether the appellant could have complied with the law. A defence of necessity at the very least must rest upon evidence from which a jury could find (i) that the accused in good faith considered the situation so emergent that failure to terminate the pregnancy immediately could endanger life or health and (ii) that upon any reasonable view of the facts compliance with the law was impossible.

It is the function of the jury and not that of an appellate court to weigh the evidence in any case, but it is proper and at times indeed essential for an appellate court to examine the record with a view to ascertaining whether there is any evidence to support a defence. What was the evidence as to urgency and was there any evidence from which a jury properly instructed could have concluded that the appellant could not have complied with the law'? There is no need to review the evidence in detail, it is essentially as follows:

Verona Parkinson

[TRANSLATION] Counsel for the Crown:

Q. After you filled out Form P-15—will you tell the Court what happened?

[Page 682]

A. I waited for a while. Then a man came in and called my name. Then I went in, he said "Sit down", and it was the doctor.

Q. Do you mean this was inside a private office? A. Yes.

Q. Please go on.

A. Then he said, "How far advanced is the pregnan­cy? How long has it lasted?" I said "Six (6) weeks." He asked me whether I had ever been pregnant before, and I said no. Then I told him that I did not have all the money, and he asked me how much I had. I told him "Eighty dollars ($80.00)", and he said "OK, I will let you pay a hundred and fifty dollars ($150.00)." No, excuse me, he said he would let me pay one hundred and fifty dollars ($150.00). Then I told him I would give him a post-dated cheque for the balance.

Later in her testimony, Miss Parkinson testified that she had decided to have an abortion for financial reasons. She did not have a health prob­lem but she believed she had some psychological problems as she was anxious and could not eat nor sleep. The following questions and answers also appear during her cross-examination:

[TRANSLATION] Q. Did you have anything in mind if you had not found a doctor or a hospital to have an abortion?

A. Well, I would probably have borrowed some money and gone to the United States.

Q. To do what?

A. To have an abortion.

Q. Is it not true that you had decided to have an abortion at whatever cost? A. Yes.

The evidence in chief of the appellant concerning his interview with Verona Parkinson before the operation was:

[TRANSLATION] A. Well, on August fifteen (15), Verona Parkinson came to my clinic; as I normally do, I went into the waiting room, to take the cards of people waiting there; among these cards was one for Verona Parkinson. I called her in, that is to say into my office, where the initial interviews

[Page 683]

are held; I should add that there is always an initial interview with the patient. I asked her to sit down; I sat in front of my desk, and she sat opposite. So I looked at her card, I saw that her name was entered, that she was entered as being twenty-six (26) years old, that she had been referred by a friend and a doctor. Can I see the card?

The card—Exhibit P-15—reads:

NAME:  Verona O. Parkinson AGE: 26

____________________________________________________

ADDRESS: 7A ST. GEORGES, St. Anne D. Belle. TEL: 457-9183

REF. BY: A friend & another Doctor           app. 11:10

DATE:   15th August '73                                app. 11:40

[TRANSLATION] Q. P-15, yes. A. Thank you.

Q. Do you recognize this card?

A. Yes, her address is entered above, her telephone number, and then the date. So, in the initial interview, I asked her why she had come; she told me that she was pregnant and she wished to have an abortion. She told me she was a student, that she was studying, and that she was single. In these cases, I always ask if she has had previous preg­nancies; she told me no; if she had had any, it would be shown on the card. And on the other cards I usually use, it is indicated whether a woman has had previous pregnancies, or a previ­ous medical history. So, we talked, I asked her questions, where she was from, and she told me that she was from Sierra Leone—I think it was the first time that I have had a patient from Sierra Leone—and what she was doing in Montreal, and she told me her reasons for wanting an abortion. At the time, she seemed very worried; it was not anything new, you are always faced with these problems of extreme anxiety in patients; and it is usually my practice to explain to patients that the operation is not dangerous; that it only lasts five (5) to ten (10) minutes, usually; that it is done under local anaesthesia, that there is a mask with nitrous oxide, oxygen, to relieve anxiety, and there would be a woman beside her to hold her hand, to reassure her..

[Page 684]

And later:

[TRANSLATION] Q. Doctor, as the result of these various events, interview, the card, the examina­tion of Miss Parkinson, what was your medical diagnosis and your decision?

A. My conclusion was that an abortion was for her reasonable, necessary, and I would even say indispensable.

Q. Why?

A. Because, first, there were several things that she had told me, that she was single, she was studying, she was a stanger [sic] here, her boyfriend was a stu­dent, and they were not ready to get married and take on the responsibilities of a child. So, she was in a state of psychological distess [sic]; as she stated in Court here, she was not sleeping, she was not eating, she was very upset and losing sleep; and, in psychosomatic terms, I am well aware that a state of psychism like that can cause very serious physi­cal disorders, and if I had not done it, there was always the danger that she would give up hope, and go to a quack, that she would perform the abortion herself, that she would commit suicide in a moment of despair. Therefore, it was absolutely necessary, in order to protect her life and her health, for me to peform [sic] this abortion.

Glanville Williams expresses "grave doubt" that a suicide threat by a mother, and of course there was no such threat by the mother in this case, would in itself be sufficient to legalize an induced abortion: The Law of Abortion, supra, at p. 133. As to the time spent by appellant with Verona Parkinson prior to the operation, the following question and answer appear:

[TRANSLATION] Q. So then, if I tell you that the initial interview with Verona Parkinson only lasted about two (2) minutes, would you say that this was correct?

A. No, that surprises me greatly. It is a rare case that I do not spend five (5), then (10) or fifteen (15), sometimes even twenty (20), minutes with a patient. It varies from one case to another.

The appellant conceded that from 10:00 a.m. until noon on the day in question he had completed six abortions. The evidence also disclosed that at the time of the operation Verona Parkinson was 6 to 8 weeks' pregnant, leaving some 4 to 6 weeks before

[Page 685]

completion of the first trimester of pregnancy, and that she had an appointment with the Montreal General Hospital for August 28, 1973, thirteen days after the appellant performed the abortion. The risk attendant upon abortion would have become greater the longer Verona Parkinson waited. Perhaps that is some evidence of urgency, but it does not go to establish impossibility.

Upon this evidence I think it perfectly clear the Court of Appeal did not err in concluding there was on the record little evidence of real and urgent medical need. More important, in answer to the question: "Was there any legal way out?" I think one must say that evidence from which a jury could conclude it was impossible for appellant to comply with the law is wholly wanting. The plain fact is that appellant made no attempt to bring himself within the bounds of legality in deciding to perform this abortion. Appellant failed to establish the second condition which Kenny says must be satisfied before the defence of necessity can be accepted in any case. I would hold, therefore, that the defence of necessity was not open to the appellant.

I have had the avantage of reading the reasons prepared by Mr. Justice Pigeon and I agree with him as to the powers of a Court of Appeal under s. 613(4) of the Criminal Code.

I would dismiss the appeal.

Appeal dismissed

Solicitors for the appellant: Robinson, Shep­pard, Borenstein, Shapiro & Flam, Montreal.

Solicitor for the respondant: Louis-Guy Robi­chaud, Montreal.

Solicitor for the intervenant, The Attorney Gen­eral of Canada: D. S. Thorson, Ottawa.

Solicitors for the intervenant, The Foundation for Women in Crisis: Clayton Ruby, Toronto.

Solicitors for the interventant, the Canadian Civil Liberties Association: Pomerant, Pomerant & Greenspan, Toronto.

[Page 686]

Solicitors for the intervenant, the Alliance for Life: Weir & Foulds, Toronto.

Solicitors for the intervenants, the Front Commun pour le Respect de la Vie and the Asso­ciation des médecins du Québec pour le respect de la vie: de Grandpré, Colas, Amyot, Lesage, Des­chesnes & Godin, Montreal.

Solicitors for the intervenant, the Fondation pour la vie: O'Reilly, Allain & Hudon, Montreal.