R v Morgentaler 3 SCR 463 1993: Abortion -- Provincial legislation prohibiting abortions outside hospitals -- Whether legislation ultra vires province as being in pith and substance criminal law

Constitutional law -- Distribution of powers -- Abortion -- Provincial legislation prohibiting abortions outside hospitals -- Whether legislation ultra vires province as being in pith and substance criminal law -- Constitution Act, 1867, s. 91(27) -- Medical Services Act, R.S.N.S. 1989, c. 281 -- Medical Services Designation Regulation, N.S. Reg. 152/89.

In March 1989, in order to prevent the establishment of free-standing abortion clinics in Halifax, the Nova Scotia government approved regulations prohibiting the performance of an abortion anywhere other than in a place approved as a hospital as well as a regulation denying medical services insurance coverage for abortions performed outside a hospital (the "March regulations"). The government later revoked these regulations and adopted the Medical Services Act and the Medical Services Designation Regulation, which continued the prohibition of the performance of abortions outside hospitals and the denial of health insurance coverage for abortions performed in violation of the prohibition. Despite these actions, the respondent opened his clinic and performed 14 abortions. He was charged with 14 (page 464) counts of violating the Medical Services Act. The trial judge held that the legislation was ultra vires the province because it was in pith and substance criminal law and acquitted the respondent. This decision was upheld by the Court of Appeal.

Held: The appeal should be dismissed. Classification of a law for purposes of federalism involves first identifying the "matter" of the law and then assigning it to one of the "classes of subjects" in respect of which the federal and provincial governments have legislative authority under ss. 91 and 92 of the Constitution Act, 1867. A law's "matter" is its true character, or pith and substance. The analysis of pith and substance necessarily starts with looking at the legislation itself, in order to determine its legal effect. The court will also look beyond the four corners of the legislation to inquire into its background, context and purpose and, in appropriate cases, will consider evidence of the actual or predicted practical effect of the legislation in operation. The ultimate long-term, practical effect of the legislation is not always relevant, nor will proof of it always be necessary in establishing the true character of the legislation. The court is entitled to refer to extrinsic evidence of various kinds provided it is relevant and not inherently unreliable. This clearly includes related legislation, and evidence of the "mischief" at which the legislation is directed. It also includes legislative history, in the sense of the events that occurred during drafting and enactment. Provided that the court remains mindful of the limited reliability and weight of Hansard evidence, it should be admitted as relevant to both the background and the purpose of legislation. The excerpts from Hansard were thus properly admitted by the trial judge in this case. This evidence demonstrates that members of all parties in the legislature understood the central feature of the proposed law to be prohibition of the respondent's proposed clinic on the basis of a common and almost unanimous opposition to abortion clinics per se.

The Medical Services Act and Medical Services Designation Regulation together constitute an indivisible attempt by the province to legislate in the area of criminal law. Since they deal with a subject historically considered to be part of the criminal law -- the prohibition of the performance of abortions with penal consequences -- they are suspect on their face, and it is not necessary to invoke the colourability doctrine. An examination of their terms and legal effect, their history and purpose and the circumstances surrounding their (page 465) enactment leads to the conclusion that the legislation's central purpose and dominant characteristic is the restriction of abortion as a socially undesirable practice which should be suppressed or punished. Although the evidence of the legislation's practical effect is equivocal, it is not necessary to establish that its immediate or future practical impact will actually be to restrict access to abortions in order to sustain this conclusion. The legislation has an effect on abortions in private clinics virtually indistinguishable from that of the now defunct abortion provision of the Criminal Code, and this overlap of legal effects is capable of supporting an inference that the legislation was designed to serve a criminal law purpose. The events leading up to and including the enactment of the impugned legislation also strengthen the inference that it was designed to serve a criminal law purpose. In addition, the Hansard evidence demonstrates both that the prohibition of the respondent's clinic was the central concern of the legislature, and that there was a common and emphatically expressed opposition to free-standing abortion clinics per se. The concerns to which the provincial government submits the legislation is primarily directed -- privatization, cost and quality of health care, and a policy of preventing a two-tier system of access to medical services -- were conspicuously absent throughout most of the legislative proceedings. The impugned legislation treats of a moral issue. While legislation which authorizes the establishment and enforcement of a local standard of morality does not ipso facto invade the field of criminal law, interdiction of conduct in the interest of public morals was and remains one of the classic ends of the criminal law. There is thus a strong inference that the purpose and true nature of the legislation relate to a matter within the federal head of power in respect of criminal law. This inference is supported by the absence of evidence that privatization and the cost and quality of health care services were anything more than incidental concerns and by the relatively severe penalties provided for in the Act.

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