Constitutional Law: Charter Section 7 Abortion Conflict
- LSOU Publications
- 3 hours ago
- 4 min read
Written By: Aaesha Angbin Ahmed
Legal Terms
1. Section 7 (Canadian Charter of Rights and Freedoms): Guarantees every individual the right to “life, liberty, and security of the person.”
2. Judicial Review: The power of courts to invalidate laws passed by Parliament or legislatures that violate the Constitution or Charter rights.
3. Charter Interpretation: The judicial process of defining and applying the language of Charter rights to specific cases.
4. Ultra vires and Intra vires: Legal terms describing whether a government act falls within or beyond its constitutional authority.
5. Rule of Law: The principle that all individuals and institutions are subject to the law, which should be applied impartially.
6. Criminal Code: The federal statute that defines criminal offences and their penalties, as well as the procedures for prosecution and enforcement.
Introduction
The Canadian Charter of Rights and Freedoms, enacted in 1982, was heralded as a democratic milestone designed to empower citizens and restrain the government from total autonomous power. Yet, one of its most famous rights provisions, Section 7, has served both pro-choice and pro-life causes in Canada’s abortion jurisprudence. This duality is most clearly seen in R. v. Morgentaler (1988) and Borowski v. Canada (Attorney General) (1987).
This article examines these cases and offers a wider reflection on how identical constitutional wording has been used to support opposing moral positions due to subjective charter interpretation. It argues that Section 7’s broad language grants judges enormous interpretive discretion. Drawing on Michael Mandel’s essay on the theory of “Charter democracy,” the discussion shows how judicial interpretation allows political judgments to appear as neutral legal reasoning. Altogether, this raises questions about the democratic legitimacy of the courts and their role in determining the ultra vires and intra vires of legislative authority.
Background and Context
The R. v. Morgentaler and Borowski v. Canada (Attorney General) cases arose from opposite ends of the abortion debate but revolved around the same constitutional clause. In the first case, Dr. Henry Morgentaler challenged Section 251 of the Criminal Code, which restricted abortions to accredited hospitals and required the approval of a therapeutic abortion committee. He argued that these procedural barriers violated women’s Section 7 rights by impeding personal autonomy and medical access. The Supreme Court of Canada agreed, striking down the law as unconstitutional. In contrast, Joseph Borowski’s pro-life challenge argued that the same Charter section extended the right to life to the fetus. The Saskatchewan Court of Appeal rejected this claim, and the Supreme Court later dismissed the case.
It is worth noting that despite addressing opposite claims, both cases relied on Section 7’s undefined concepts of “life” and “security of the person.” Mandel notes that this interpretive openness exposes what he calls the “judicial factor”, which is essentially the influence of judges’ political and moral beliefs on constitutional outcomes.
Impact and Significance
The ruling in Morgentaler’s case fundamentally reshaped Canadian reproductive rights by decriminalizing abortion and transferring policymaking power from Parliament to the courts. Meanwhile, Borowski reinforced that fetuses do not possess Charter rights, setting a constitutional boundary that remains influential today. The most notable observation,
however, is that these cases jointly illustrate the Charter’s double life; it has the capacity to empower opposing political movements under the same language. The Charter’s promise of democratic empowerment paradoxically consolidates power in unelected hands, making judges “arbiters of politics through law” in judicial review.
Practical Implications
For legal practitioners, these cases underscore the inherently and unavoidably political nature of constitutional litigation. Arguments under Section 7 are not simply about applying law but about interpreting moral and philosophical concepts. Moreover, according to Mandel, the financial and institutional costs of Charter litigation restrict access to justice, concentrating constitutional advocacy in the hands of well-funded actors. This means that while the Charter offers new avenues for challenging state power, its benefits often flow to those with the means to pursue lengthy and expensive cases.
Personal Perspective and Conclusion
Morgentaler’s case may have advanced reproductive autonomy, but its legacy rests on a rather fragile judicial willingness to protect that right. Borowski’s case demonstrates that, under different ideological conditions, Section 7 could have been used to restrict that same freedom. In this sense, the Charter is not a solid shield of rights but a flexible political instrument.
The Morgentaler and Borowski decisions expose the political character of Canadian constitutional law. I agree with Morgentaler’s outcome as a matter of reproductive justice, but I am wary of Mandel’s pressing critique: the Charter enables not the rule of law, but the “rule of lawyers,” concentrating democratic power in judicial hands. Section 7’s ambiguity allows courts to determine the scope of liberty and life itself. This flexibility can yield progressive outcomes, but it also reveals the fragility of rights when their meaning depends on interpretation. Ultimately, democracy requires not only rights but public participation in defining them. The challenge for Canadians is to engage with the Charter critically, ensuring courts equally serve as a tool of democracy rather than its replacement.
Original document with citations can be found here:
Comments