The Other Press April 1st to April 14th, 1982

Rights; Who's Rights?

Page 6

Bill of

 

 

 

Janice Turner of the Concordia University student newspaper “The Link”

examines the constitutional dilema of
abortions

It was billed as a day for all Canadians to
celebrate - well, almost all. But neither the
political pomp, nor the resounding chorus of O
Canada could persuade Paul Formby to smile.

As the final vote on the constitution was
being ceremoniously etched in history Decem-
ber 2;-Formby sat in his Toronto office
painstakingly sizing up the count.

As national co-ordinator of Campaign Life,
the political arm of pro-life groups across the
country, Formby had a special interest. He was
waiting for his colleagues on Parliament Hill to
report back on their last-minute lobbying
efforts.

Formby claims that five of the 24 Canadian
Members of Parliament who opposed the
constitutional package did so because of the
abortion issue, including Garnet Bloomfield
and fellow Liberal Stan Hudecki who broke
party ranks. It was, says Formby, ‘‘a lot less’’
than he had been assured.

‘‘The consititution was part of a big political
football match,’’ Formby recalls. ‘‘Even many
of the pro-lifers didn’t have much time for the
issue.’’

Campaign Life, which represents an estima-
ted 100,000 pro-lifers across Canada, tried to
get protection for the unborn written into the
constitution. But, inspite of intense lobbying
efforts, the Charter of Rights does not take a
stand on the issue.

“It’s like a ship,’’ says Formby, ‘‘one of
those luxury liners filled with people - the
Canadian ship ‘Constitution’. It’s left harbour
and headed out to sea, leaving behind the
unborn.’’

In the final rounds of constitutional bargain-
ing, Campaign Life grappled for what it
thought to be minimal protection - a ‘‘neutral’’
clause guaranteeing that nothing in the Charter
would affect the right of Parliament to rule on
behalf of the unborn. Formby says that request
went ignored.

‘| haven’t got much faith in Parliament left
to itself anymore,’’ he says.

Formby and anti-abortionists like him say
they are disappointed, but not discouraged.
They say they‘are rallying the next troops and
preparing for the next stage of battle in this
emotional dispute.

‘‘As far as pro-life groups are concerned,
Quebec would have to rank among the
weakest, if not the weakest, in the country,’’
he says.

The consensus among women’s groups in
Quebec, reflected in the 1977 establishment of
‘‘Lazure clinics’’ (named after former PQ
Social Affairs Minister Denis Lazure, now
Minister for Social Development), is clear.
Therapeutic abortions can and must be
available throughout the province.

Not having signed the constitutional accord,
however, Quebec is leaving itself uncommitted
with respect to any charter.

The effects of the Charter of Rights on
Canadian abortion law is, in fact, quite
unclear. Prime Minister Pierre Trudeau has
gone on record saying the Charter is indeed
neutral on the issue. Under section 24, the
document itself invites people to go to the
courts if they feel their rights have been
denied. And that’s exactly where the battle
over abortion is expected to be played.

Both pro-life and pro-choice groups believe

test cases will be launched early on in the life

 

of the Charter in order to get a more precise
meaning of the law.

Mary Eberts, former professor of law at the
University of Toronto and now in private
practice, outlines key sections of the Charter
which could well tip the balance in the abortion
debate. Section 7 provides that ‘’Everyone has
the right to life, liberty and security of the
person...’’ This, she says, could be interpreted
by the courts so as to have the word ‘‘everyone
by the courts so as to have the word everyone
include the unborn. ;

“To a certain extent, this may have been an
intentional backing down by Parliament from a
specific guarantee of the fight to life of the
fetus,’’ she says and could be challenged by
pro-life groups.

Sections 15 and 28 open the door to further
litigation. Section 28, which is not subject to
legislative override, states that ‘’... the rights
and freedoms referred to (in the Charter) are
guaranteed equally, to male and female
persons,’’ as expressed in its other sections.
Eberts says this clause might be an avenue
used by men to get a voice in the abortion
issue. ;

When the constitution comes home, not all

provisions in the Charter will come into force
immediately. Section 15 is one such exception.
It provides that ‘‘Every individual is equal
before and under the law and has the right to
equal protection and equal benefit of the law
without discrimination - based on sex...”’
_ The provinces have been given three years
“srace’’ before this clause becomes law in
order to meed the equality requirement. Once
it comes into force, it could be challenged by
both pro-choice and pro-life factions.

Section 15 could be used by women who live
in parts of the country where hospitals lack

E )

abortion committees, enabling them to argue
for ‘equal protection and benefit’ under.
existing Canadian abortion law. This section
might also be used by pro-lifers to obtain equal

access to the abortion process for men, to allow

the father of a fetus representation before a

therapeutic abortion committee.

‘Peggy Mason, former legal advisor to the
Canadian Advisory Council on the Status of °
Women, now advisor to the federal Conser-
vative party on Women’s issues, is cautious in

interpreting the impact of so-called ‘equal
access.’ She says should the courts rule that a

father must be consulted before an abortion

decision is made, his argument would not
necessarily carry equal weight.

“It won’t provide a direct attack on our:
current abortion law,’’ Mason says. ‘‘It will
simply provide for more ‘consultation’. Section
28 may say that if you are going to recognize
access, you’re going to have to give it to both
male and female persons.’’

Lastly, section 51, like section 24, is what
Eberts terms a ‘‘springboard’’ or remedy
clause. Under section 51, any law seen to be
‘inconsistent’ with the Charter is deemed
inoperative. Here, pro-choice groups could
argue that the abortion provisions. under the
Criminal Code are ‘inconsistent’ with the intent

_ of the rest of the Charter which allows for

“Liberty and security’ of the person.

Although legal interpretation of the Charter
would rely on them, on the other hand, decide
to ignore the administrative aspect of the law,
leaving it to legislators and the override
provision. In that case, it would be up to
individuals or groups to lobby politicians for
change.

BACK TO THE ARENA |

But while debate over the effects of an
entrenched Charter of Rights continues to
grow, the 1962 Bill of Rights remains, as an
ordinary federal statute, Canada’s human
rights yardstick. In a decision that has many
feminists outraged, the Supreme Court ruled 7

.to 2 in early December that Joe Borowski,

former Manitoba cabinet minister and longtime
anti-abortion crusader, can legally represent
the unborn in his case against the 1969 federal
abortion law. The verdict means that Borowski,
48, has gained legal standing and can press on
the challenge he first launched in 1979 based
on the argument that the Bill of Rights protects
the human fetus.

The ‘‘right of the individual to life, liberty,
and security of the person’’, as outlined in
section 1 of the Bill is virtually the same, if not

‘more difficult to argue, as the word everyone

in the new charter. A decision on the Bill
pouie undoubtedly set a precedent for any new
aw.

If the courts do decide that the word ‘‘one’’
in the Charter does include the unborn, then
abortion would likely become illegal period. A
reverse decision, however, would not in itself
clear the way for abortion on demand.

‘‘For abortion on demand to be granted,’’
says Mason, ‘‘it would still have to be
legalized under another law of Parliament. It
wouldn’t alter the law as it stands now.’’

Although unable to predict how the courts
will rule on Borowski, Mason says that it is
‘‘significant’’ that a majority on the Supreme
Court (Chief Justice Bora Laskin in dissent)
extended the law on standing, allowing
Borowski to represent the unborn and to

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