Ruling
Upon receiving the issue, the Supreme Court declined to decide the case on the basis of the Charter and limited itself to the federalism issue. Even here, the Court limited itself by not considering the issue of whether abortion relates to peace, order and good government, which would definitely make it federal jurisdiction. Justice John Sopinka, writing for a unanimous Court, simply agreed with the argument that these specific abortion regulations, rather than being a valid provincial regulation of hospitals and medicine, instead constituted an invalid criminal law. As a result, all of these regulations were struck down, including the ones not dealing with abortion.
The Court began by noting that the legislation was always meant to target specific services, and above all else abortion. In considering the law's pith and substance, this raised the question of whether the provincial government's true motives for enacting the legislation was not to regulate hospitals or medicine, but to limit what it saw as "the socially undesirable conduct of abortion" (which would be a criminal law function). The Court also noted that in Morgentaler v. The Queen (1975), it had been found that the abortion law later struck down in 1988 had been criminal law, and as such it had been appropriately passed by Parliament as opposed to by a provincial legislature. This also raised the question of whether abortion laws are designed to deal with "socially undesirable conduct." The Court then quoted Nova Scotia's Hansard, which reinforced the notion that the provincial government saw Morgentaler's clinics as a "public evil which should be eliminated" and minimized the argument that the law had been meant to combat privatization.
The Court observed that the fines were serious penal considerations, a typical feature of criminal law.
The provincial regulations were also ruled to be very similar to the federal abortion law struck down in 1988 (although Nova Scotia did not resurrect the Therapeutic Abortion Committees of the federal law). The similarities were problematic to the provincial law, since similarities between provincial laws and laws in the Criminal Code of Canada have, in the past, led to provincial laws being struck down as ultra vires the provincial governments.
Read more about this topic: R. V. Morgentaler (1993)
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