CHARLOTTETOWN, PEI, May 27, 2014 ( – As the abortion debate in Canada continues to broaden thanks to the leaders of the federal opposition parties trying to outdistance each other in declaring which is the most pro-abortion party in the country, a former judge has weighed in on the debate by offering a clear and factual explanation of the 1988 Supreme Court ruling that struck down the existing abortion restrictions in the Criminal Code.

Gerard Mitchell of Charlottetown, PEI, is a former provincial court judge (1975-77), P.E.I. Supreme Court Justice (1981-1987) and Chief Justice from 1987 until 2008.


In a letter to the Charlottetown Guardian he refers to the Supreme Court of Canada decision in R. v. Morgentaler, saying that all seven judges acknowledged that the state has a legitimate interest in protecting the unborn, and that they did not establish a constitutional right to abortion.

“None of the seven judges held that there was a constitutional right to abortion on demand. All of the judges acknowledged the state has a legitimate interest in protecting the unborn. Even Madam Justice Wilson, who rendered the most liberal opinion in favour of a woman’s rights, advocated an approach to abortion that would balance those rights with the state’s interest in protecting the unborn,” Justice Mitchell wrote.

Moreover, he points out that the Morgentaler decision did not strip Parliament of power to make laws restricting abortion, provided they meet constitutional standards set out by the Supreme Court judgment.

The ruling in fact encouraged Parliament to pass legislation to replace the rescinded sections of the Criminal Code.

“The solution to this question in this country must be left to Parliament,” the decision reads. “It is for Parliament to pronounce on and to direct social policy,” the Supreme Court justices said.

Despite a controversial attempt in 1989 to legislate on abortion (Bill C-43) during the Mulroney Progressive Conservative government, an attempt that pro-life organizations around the country saw as a phony effort that would offer no real protection to human life in the womb, Canada now remains one of only a few countries in the world with no laws regulating abortion whatsoever.

“Thus, Canada since 1988 has been without any criminal law restricting abortion. Presently none of the federal political parties seem disposed to alter that situation,” Justice Mitchell wrote, explaining further that since criminal law is strictly a matter dealt with by Parliament, provincial legislatures cannot take it upon themselves to fill the void.

“Recent public discussion concerning abortion and the criminal law indicates some confusion about the extent and impact of the Supreme Court of Canada’s ruling on the issue in the 1988 Morgentaler case,” said Justice Mitchell, concluding that he hopes “what I have written here helps those who wish to understand the situation respecting the law on abortion better.”

The full text of Justice Gerard Mitchell's letter is available here.

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