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British North America Act, 1867:
Be it therefore enacted and declared by the Queen's Most Excellent Majesty, by and with the advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, as follows:
I. Preliminary
1. This Act may be cited as the British North America Act, 1867.
II. Union
3. It shall be lawful for the Queen, by and with the Advice of Her Majesty's Most Honourable Privy Council, to declare by Proclamation that, on and after a Day therein appointed, not being more than Six Months after the passing of this Act, the Provinces of Canada, of Nova Scotia, and New Brunswick shall form and be One Dominion under the name of Canada; and on and after that Day those Three Provinces shall form and be One Dominion under that Name accordingly.5. Canada shall be divided into Four Provinces, named Ontario, Quebec, Nova Scotia, and New Brunswick.
6. The Parts of the Province of Canada (as it exists at the passing of this Act) which formerly constituted respectively the Provinces of Upper Canada and Lower Canada shall be deemed to be severed, and shall form two separate Provinces. The Part which formerly constituted the Province of Upper Canada shall constitute the Province of Ontario; and the Part which formerly constituted the Province of Lower Canada shall constitute the Province of Quebec.
7. The Provinces of Nova Scotia and New Brunswick shall have the same Limits as at the passing of this Act.
III. Executive Power
9. The Executive Government and authority of and over Canada is hereby declared to continue and be vested in the Queen.
11. There shall be a Council to aid and advise in the Government of Canada, to be styled the Queen's Privy Council for Canada; and the Persons who are to be Members of that Council shall be from time to time chosen and summoned by the Governor General and sworn in as Privy Councillors, and Members thereof may be from time to time removed by the Governor General.
16. Until the Queen otherwise directs the Seat of Government of Canada shall be Ottawa.
IV. Legislative Power
17. There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.
The Senate
21. The Senate shall, subject to the Provisions of this Act, consist of Seventy-two Members, who shall be styled Senators.
22. In relation to the Constitution of the Senate, Canada shall be deemed to consist of Three Divisions:
1. Ontario;
2. Quebec;
3. The Maritime Provinces, Nova Scotia and New Brunswick;which Three Divisions shall (subject to the Provisions of this Act) be equally represented in the Senate as follows: Ontario by Twenty-four Senators; Quebec by Twenty-four Senators; and the Maritime Provinces by Twenty-four Senators, Twelve thereof representing Nova Scotia, and Twelve thereof representing New Brunswick....
24. The Governor General shall from time to time, in the Queen's Name, by instrument under the Great Seal of Canada, summon qualified Persons to the Senate; and, subject to the Provisions of this Act, every Person so summoned shall become and be a Member of the Senate and a Senator.
26. If at any time, on the Recommendation of the Governor General, the Queen thinks fit to direct that Three or Six Members be added to the Senate, the Governor General may by Summons to Three or Six qualified Persons (as the Case may be), representing equally the Three Divisions of Canada, add to the Senate accordingly.
29. A Senator shall, subject to the Provisions of this Act, hold his Place in the Senate for Life.
The House of Commons
37. The House of Commons shall, subject to the Provisions of this Act, consist of One hundred and eighty-one Members, of whom Eighty-two shall be elected for Ontario, Sixty-five for Quebec, Nineteen for Nova Scotia, and Fifteen for New Brunswick.
50. Every House of Commons shall continue for Five Years from the Day of the Return of the Writs for choosing the House (subject to be sooner dissolved by the Governor General), and no longer.
52. The Number of Members of the House of Commons may be from time to time increased by the Parliament of Canada, provided the proportionate Representation of the Provinces prescribed by this Act is not thereby disturbed.
Money Votes; Royal Assent
53. Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons.
55. Where a Bill passed by the Houses of Parliament is presented to the Governor General for the Queen's Assent, he shall declare, according to his Discretion, but subject to the Provisions of this Act and to Her Majesty's Instructions, either that he assents thereto in the Queen's Name, or that he withholds the Queen's Assent, or that he reserves the Bill for the Signification of the Queen's Pleasure.
Legislative Power
90. The following Provisions of this Act respecting the Parliament of Canada, namely, - the Provisions relating to Appropriation and Tax Bills, the Recommendation of Money Votes, the Assent to Bills, the Disallowance of Acts, and Signification of Pleasure on Bills reserved, - shall extend and apply to the Legislatures of the several Provinces....
VI. Distribution of Legislative Powers
Powers of the Parliament
91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, -1. The Public Debt and Property.
2. The Regulation of Trade and Commerce.
3. The raising of Money by any Mode or System of Taxation.
4. The borrowing of Money on the Public Credit.
5. Postal Service.
6. The Census and Statistics.
7. Militia, Military and Naval Service, and Defence.
8. The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada.
9. Beacons, Buoys, Lighthouses, and Sable Island.
10. Navigation and Shipping.
11. Quarantine and the Establishment and Maintenance of Marine Hospitals.
12. Sea Coast and Inland Fisheries.
13. Ferries between a Province and any British or Foreign Country or betweenTwo Provinces.
14. Currency and Coinage.
15. Banking, Incorporation of Banks, and the Issue of Paper Money.
16. Savings Banks.
17. Weights and Measures.
18. Bills of Exchange and Promissory Notes.
19. Interest.
20. Legal Tender.
21. Bankruptcy and Insolvency.
22. Patents of Invention and Discovery.
23. Copyrights.
24. Indians and Lands reserved for the Indians.
25. Naturalization and Aliens.
26. Marriage and Divorce.
27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.
28. The Establishment, Maintenance, and Management of Penitentiaries.
29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.
And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.
Exclusive Powers of Provincial Legislatures
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, -
1. The Amendment from time to time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the Office of Lieutenant-Governor.
2. Direct Taxation within the Province in order to the Raising of a Revenue for Provincial Purposes.
3. The borrowing of Money, on the sole Credit of the Province.
4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers.
5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.
6. The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province.
7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.
8. Municipal Institutions in the Province.
9. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.
10. Local Works and Undertakings other than such as are of the following Classes:
(a) Lines of Steam and other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province;
(b) Lines of Steam Ships between the Province and any British or Foreign Country;
(c) Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.
11. The Incorporation of Companies with Provincial Objects.
12. The Solemnization of Marriage in the Province.
13. Property and Civil Rights in the Province.
14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.
15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.
16. Generally all Matters of a merely local or private Nature in the Province.
Education
93. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions:
(1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union;
(2) All the Powers, Privileges, and Duties at the Union by Law confined and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen's Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic Subjects in Quebec;
(3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen's Subjects in relation to Education;
(4) In case any such Provincial Law as from time to time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section.
Agriculture and Immigration
95. In each Province the Legislature may make Laws in relation to Agriculture in the Province, and to Immigration into the Province; and it is hereby declared that the Parliament of Canada may from time to time make Laws in relation to Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces; and any Law of the Legislature of a Province relative to Agriculture or to Immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada.
VIII. Revenues; Debts; Assets; Taxation
111. Canada shall be liable for the Debts and Liabilities of each Province existing at the Union.
118. The following Sums shall be paid yearly by Canada to the several Provinces for the Support of their Governments and Legislatures:
Ontario ... Eighty thousand dollars.
Quebec ... Seventy thousand dollars.
Nova Scotia ... Sixty thousand dollars.
New Brunswick ... Fifty thousand dollars.
TOTAL: Two hundred and sixty thousand dollars; and an annual Grant in aid to each Province shall be made, equal to Eighty Cents per Head of the Population as ascertained by the Census of One thousand eight hundred and sixty-one, and in the Case of Nova Scotia and New Brunswick, by each subsequent Decennial Census until the Population of each of those two Provinces amounts to Four hundred thousand Souls, at which Rate such Grant shall thereafter remain. Such Grants shall be in full Settlement of all future Demands on Canada, and shall be paid half-yearly in advance to each Province; but the Government of Canada shall deduct from such Grants, as against any Province, all Sums chargeable as Interest on the Public Debt of that Province in excess of the several Amounts stipulated in this Act.
119. New Brunswick shall receive by half-yearly Payments in advance from Canada for the period of Ten years from the Union an additional Allowance of Sixty-three thousand Dollars per Annum; but as long as the Public Debt of that Province remains under Seven million Dollars, a Deduction equal to the interest of Five per Centum per Annum on such Deficiency shall be made from that Allowance of Sixty-three thousand Dollars.
121. All articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.
IX. Miscellaneous Provisions
133. Either the English or the French Language may be used by any Person in the Debates of the House of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.
The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.
X. Intercolonial Railway
145. Inasmuch as the Provinces of Canada, Nova Scotia, and New Brunswick have joined in a Declaration that the Construction of the Intercolonial Railway is essential to the Consolidation of the Union of British North America, and to the Assent thereto of Nova Scotia and New Brunswick, and have consequently agreed that Provision should be made for its immediate Construction by the Government of Canada: Therefore, in order to give effect to that Agreement, it shall be the Duty of the Government and Parliament of Canada to provide for the Commencement within Six Months after the Union, of a Railway connecting the River St. Lawrence with the City of Halifax in Nova Scotia, and for the Construction thereof without Intermission, and the Completion thereof with all practicable Speed.
XI. Admission of Other Colonies
146. It shall be lawful for the Queen, by and with the Advice of Her Majesty's Most Honourable Privy Council, on Addresses from the Houses of the Parliament of Canada, and from the Houses of the respective Legislatures of the Colonies or Provinces of Newfoundland, Prince Edward Island, and British Columbia, to admit those Colonies or Provinces, or any of them, into the Union, and on Address from the Houses of the Parliament of Canada to admit Rupert's Land and the North-western Territory, or either of them, into the Union, on such Terms and Conditions in each Case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the Provisions of this Act; and the Provisions of any Order in Council in that Behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland....
Links to Other Sites
Constitutional Acts 1867 to 1982
The complete texts of the Constitutional Acts 1867 to 1982. From the Department of Justice Canada.
I. Preliminary
1. This Act may be cited as the British North America Act, 1867.
II. Union
3. It shall be lawful for the Queen, by and with the Advice of Her Majesty's Most Honourable Privy Council, to declare by Proclamation that, on and after a Day therein appointed, not being more than Six Months after the passing of this Act, the Provinces of Canada, of Nova Scotia, and New Brunswick shall form and be One Dominion under the name of Canada; and on and after that Day those Three Provinces shall form and be One Dominion under that Name accordingly.5. Canada shall be divided into Four Provinces, named Ontario, Quebec, Nova Scotia, and New Brunswick.
6. The Parts of the Province of Canada (as it exists at the passing of this Act) which formerly constituted respectively the Provinces of Upper Canada and Lower Canada shall be deemed to be severed, and shall form two separate Provinces. The Part which formerly constituted the Province of Upper Canada shall constitute the Province of Ontario; and the Part which formerly constituted the Province of Lower Canada shall constitute the Province of Quebec.
7. The Provinces of Nova Scotia and New Brunswick shall have the same Limits as at the passing of this Act.
III. Executive Power
9. The Executive Government and authority of and over Canada is hereby declared to continue and be vested in the Queen.
11. There shall be a Council to aid and advise in the Government of Canada, to be styled the Queen's Privy Council for Canada; and the Persons who are to be Members of that Council shall be from time to time chosen and summoned by the Governor General and sworn in as Privy Councillors, and Members thereof may be from time to time removed by the Governor General.
16. Until the Queen otherwise directs the Seat of Government of Canada shall be Ottawa.
IV. Legislative Power
17. There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.
The Senate
21. The Senate shall, subject to the Provisions of this Act, consist of Seventy-two Members, who shall be styled Senators.
22. In relation to the Constitution of the Senate, Canada shall be deemed to consist of Three Divisions:
1. Ontario;
2. Quebec;
3. The Maritime Provinces, Nova Scotia and New Brunswick;which Three Divisions shall (subject to the Provisions of this Act) be equally represented in the Senate as follows: Ontario by Twenty-four Senators; Quebec by Twenty-four Senators; and the Maritime Provinces by Twenty-four Senators, Twelve thereof representing Nova Scotia, and Twelve thereof representing New Brunswick....
24. The Governor General shall from time to time, in the Queen's Name, by instrument under the Great Seal of Canada, summon qualified Persons to the Senate; and, subject to the Provisions of this Act, every Person so summoned shall become and be a Member of the Senate and a Senator.
26. If at any time, on the Recommendation of the Governor General, the Queen thinks fit to direct that Three or Six Members be added to the Senate, the Governor General may by Summons to Three or Six qualified Persons (as the Case may be), representing equally the Three Divisions of Canada, add to the Senate accordingly.
29. A Senator shall, subject to the Provisions of this Act, hold his Place in the Senate for Life.
The House of Commons
37. The House of Commons shall, subject to the Provisions of this Act, consist of One hundred and eighty-one Members, of whom Eighty-two shall be elected for Ontario, Sixty-five for Quebec, Nineteen for Nova Scotia, and Fifteen for New Brunswick.
50. Every House of Commons shall continue for Five Years from the Day of the Return of the Writs for choosing the House (subject to be sooner dissolved by the Governor General), and no longer.
52. The Number of Members of the House of Commons may be from time to time increased by the Parliament of Canada, provided the proportionate Representation of the Provinces prescribed by this Act is not thereby disturbed.
Money Votes; Royal Assent
53. Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons.
55. Where a Bill passed by the Houses of Parliament is presented to the Governor General for the Queen's Assent, he shall declare, according to his Discretion, but subject to the Provisions of this Act and to Her Majesty's Instructions, either that he assents thereto in the Queen's Name, or that he withholds the Queen's Assent, or that he reserves the Bill for the Signification of the Queen's Pleasure.
Legislative Power
90. The following Provisions of this Act respecting the Parliament of Canada, namely, - the Provisions relating to Appropriation and Tax Bills, the Recommendation of Money Votes, the Assent to Bills, the Disallowance of Acts, and Signification of Pleasure on Bills reserved, - shall extend and apply to the Legislatures of the several Provinces....
VI. Distribution of Legislative Powers
Powers of the Parliament
91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, -1. The Public Debt and Property.
2. The Regulation of Trade and Commerce.
3. The raising of Money by any Mode or System of Taxation.
4. The borrowing of Money on the Public Credit.
5. Postal Service.
6. The Census and Statistics.
7. Militia, Military and Naval Service, and Defence.
8. The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada.
9. Beacons, Buoys, Lighthouses, and Sable Island.
10. Navigation and Shipping.
11. Quarantine and the Establishment and Maintenance of Marine Hospitals.
12. Sea Coast and Inland Fisheries.
13. Ferries between a Province and any British or Foreign Country or betweenTwo Provinces.
14. Currency and Coinage.
15. Banking, Incorporation of Banks, and the Issue of Paper Money.
16. Savings Banks.
17. Weights and Measures.
18. Bills of Exchange and Promissory Notes.
19. Interest.
20. Legal Tender.
21. Bankruptcy and Insolvency.
22. Patents of Invention and Discovery.
23. Copyrights.
24. Indians and Lands reserved for the Indians.
25. Naturalization and Aliens.
26. Marriage and Divorce.
27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.
28. The Establishment, Maintenance, and Management of Penitentiaries.
29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.
And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.
Exclusive Powers of Provincial Legislatures
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, -
1. The Amendment from time to time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the Office of Lieutenant-Governor.
2. Direct Taxation within the Province in order to the Raising of a Revenue for Provincial Purposes.
3. The borrowing of Money, on the sole Credit of the Province.
4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers.
5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.
6. The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province.
7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.
8. Municipal Institutions in the Province.
9. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.
10. Local Works and Undertakings other than such as are of the following Classes:
(a) Lines of Steam and other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province;
(b) Lines of Steam Ships between the Province and any British or Foreign Country;
(c) Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.
11. The Incorporation of Companies with Provincial Objects.
12. The Solemnization of Marriage in the Province.
13. Property and Civil Rights in the Province.
14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.
15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.
16. Generally all Matters of a merely local or private Nature in the Province.
Education
93. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions:
(1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union;
(2) All the Powers, Privileges, and Duties at the Union by Law confined and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen's Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic Subjects in Quebec;
(3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen's Subjects in relation to Education;
(4) In case any such Provincial Law as from time to time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section.
Agriculture and Immigration
95. In each Province the Legislature may make Laws in relation to Agriculture in the Province, and to Immigration into the Province; and it is hereby declared that the Parliament of Canada may from time to time make Laws in relation to Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces; and any Law of the Legislature of a Province relative to Agriculture or to Immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada.
VIII. Revenues; Debts; Assets; Taxation
111. Canada shall be liable for the Debts and Liabilities of each Province existing at the Union.
118. The following Sums shall be paid yearly by Canada to the several Provinces for the Support of their Governments and Legislatures:
Ontario ... Eighty thousand dollars.
Quebec ... Seventy thousand dollars.
Nova Scotia ... Sixty thousand dollars.
New Brunswick ... Fifty thousand dollars.
TOTAL: Two hundred and sixty thousand dollars; and an annual Grant in aid to each Province shall be made, equal to Eighty Cents per Head of the Population as ascertained by the Census of One thousand eight hundred and sixty-one, and in the Case of Nova Scotia and New Brunswick, by each subsequent Decennial Census until the Population of each of those two Provinces amounts to Four hundred thousand Souls, at which Rate such Grant shall thereafter remain. Such Grants shall be in full Settlement of all future Demands on Canada, and shall be paid half-yearly in advance to each Province; but the Government of Canada shall deduct from such Grants, as against any Province, all Sums chargeable as Interest on the Public Debt of that Province in excess of the several Amounts stipulated in this Act.
119. New Brunswick shall receive by half-yearly Payments in advance from Canada for the period of Ten years from the Union an additional Allowance of Sixty-three thousand Dollars per Annum; but as long as the Public Debt of that Province remains under Seven million Dollars, a Deduction equal to the interest of Five per Centum per Annum on such Deficiency shall be made from that Allowance of Sixty-three thousand Dollars.
121. All articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.
IX. Miscellaneous Provisions
133. Either the English or the French Language may be used by any Person in the Debates of the House of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.
The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.
X. Intercolonial Railway
145. Inasmuch as the Provinces of Canada, Nova Scotia, and New Brunswick have joined in a Declaration that the Construction of the Intercolonial Railway is essential to the Consolidation of the Union of British North America, and to the Assent thereto of Nova Scotia and New Brunswick, and have consequently agreed that Provision should be made for its immediate Construction by the Government of Canada: Therefore, in order to give effect to that Agreement, it shall be the Duty of the Government and Parliament of Canada to provide for the Commencement within Six Months after the Union, of a Railway connecting the River St. Lawrence with the City of Halifax in Nova Scotia, and for the Construction thereof without Intermission, and the Completion thereof with all practicable Speed.
XI. Admission of Other Colonies
146. It shall be lawful for the Queen, by and with the Advice of Her Majesty's Most Honourable Privy Council, on Addresses from the Houses of the Parliament of Canada, and from the Houses of the respective Legislatures of the Colonies or Provinces of Newfoundland, Prince Edward Island, and British Columbia, to admit those Colonies or Provinces, or any of them, into the Union, and on Address from the Houses of the Parliament of Canada to admit Rupert's Land and the North-western Territory, or either of them, into the Union, on such Terms and Conditions in each Case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the Provisions of this Act; and the Provisions of any Order in Council in that Behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland....
Links to Other Sites
Constitutional Acts 1867 to 1982
The complete texts of the Constitutional Acts 1867 to 1982. From the Department of Justice Canada.
Abortion Law in Canada (from www.duhaime.org)
Abortion Law in CanadaAbortion is not a crime in Canada.
But it is an area of the law where, beyond that simple fact, the waters are very murky.
In a nutshell, the Supreme Court of Canada said that the section of the Criminal Code which made abortion a crime was of no force or effect so it is as if that section did not exist. The Supreme Court can overrule Parliament when the latter's laws are incompatible with the Charter of Rights and Freedoms. That was the case here.
Behaviour in Canada can only be criminal if a federal law specifically prohibits it.
There is a long history of abortion in common law, known as "destroying infants in the mother's womb" and punishable by "transported beyond this season for the term of his or her natural life or for any term not less than 15 years" (William Russell, A Treastise On Crimes and Misdemeanors (Philadelphia: T& JW Johnson & Co.,1857), p. 671).
Historically, some phases of the common law punished the perpetrator of an abortion only if it occurred subsequent to the woman being quick with child. A woman was quick with childonce she had felt the foetus move within her.
As early as 1869, Canada prohibited abortion - see image from the 1869 statute pictured.
Section 287 of the Criminal Code became law in 1969.
The Charter of Rights and Freedoms followed in 1982.
The Code made it a criminal offence to "procure a miscarriage."
Section 287 says that every one who, with intent to procure the miscarriage of a female person, uses drugs, instruments or manipulation of any kind, for the purpose of carrying out their intention, is guilty of an indictable offence and liable to imprisonment for life. The Code exempted doctors from criminal liability if a hospital abortion committee was prepared to sign a statement to the effect that the "continuation of the pregnancy of the female person would or would likely to endanger (the pregnant woman's) life or health."
Section 7 of the Chartersays that:
"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
Dr. Henry Mortgentaler, through his attempts at establishing abortion clinics in a variety of Canadian provinces, forced the issue of the lawfulness of section 287 of the Criminal Code.
The issue came to a judicial head in 1988, when the Supreme Court ruled that section 287 of the Code offended section 7 of the Charter, and that the former was therefore of no force or effect (1 SCR 30).
Wrote Chief Justice, Brian Dickson:
"Forcing a woman by threat of criminal sanction to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and this a violation of her security of the person."
There were to be other legal challenges.
Joseph Borowski asked the high court to rule that abortions violated the foetus' right to life and equality under section 7 of the Charter.
The Saskatchewan Court of Appeal ruled that a foetus was not a person capable of claiming rights under the Charter.
Borowski's case never made it to the Supreme Court as the decision in Mortgentaler made the issue in Borowski's appeal moot.
The issue of the rights of the foetus reached the Supreme Court when, in 1989, a Quebec man succeeded in getting an injunction from a Quebec court to prevent his former partner from aborting her foetus (Tremblay v. Daigle, 2 SCR 530).
The Court sidestepped the question of foetal rights under the Charter by deciding that the foetus was not a "person" under Quebec civil law:
"A number of Anglo-Canadian courts have considered the status of a foetus in cases which are similar to the present appeal. These courts have consistently reached the conclusion that to enjoy rights, a foetus must be born alive.... In light of this treatment of foetal rights in civil law and, in addition, the consistency to be found in the common law jurisdictions, it would be wrong to interpret the vague provisions of the Quebec Charter as conferring legal personhood upon the foetus."
In R. v. Sullivan, Canada's Supreme Court, in 1991, 1 SCR, 489, a childbirth assisted by midwives went wrong; when the bay was delivered, the child showed no signs of life and resuscitation attempts were unsuccessful. The midwives were charged with criminal negligence causing death and bodily harm. The midwives were acquitted because the foetus was not a "person".
A legislative vacuum of sorts was created.
Nova Scotia tried to write a law which prevented abortions except at certified hospitals. The provincial act was ruled invalid as an encroachment on criminal law powers that is reserved to the federal government.
When she was prime minister, Kim Campbell tabled a bill to bring back a form of criminal law control over abortions. The bill survived a close vote in the House of Commons on May 29, 1990, (140 to 131) but was defeated in the Senate by a rare tie vote (43 to 43) on January 31, 1991.
Therefore, since the Mortgentaler decision, there is no Canadian criminal law which addresses abortion.
In 1996, a pregnant Ottawa woman, Brenda Drummond, tried to kill herself or her foetus by discharging a pellet gun into her vagina.
The pellet lodged into the foetus' head. A few days later, she gave birth in the bathroom of her home. The baby was born alive. Emergency surgery saved it's life when an x-ray revealed the pellet in the child's head.
Prosecutors were at a loss as to what crime, if any, she had committed. Finally, it occurred to them that for ignoring the risk to the baby in not disclosing the firearm discharge, she had endangered the child.
She was charged under s. 215 of the Criminal Code, which requires a parent to provide necessaries of life for their children, was convicted and was given a suspended sentence.
Published: Friday, October 20, 2006
Last updated: Wednesday, March 24, 2010
But it is an area of the law where, beyond that simple fact, the waters are very murky.
In a nutshell, the Supreme Court of Canada said that the section of the Criminal Code which made abortion a crime was of no force or effect so it is as if that section did not exist. The Supreme Court can overrule Parliament when the latter's laws are incompatible with the Charter of Rights and Freedoms. That was the case here.
Behaviour in Canada can only be criminal if a federal law specifically prohibits it.
There is a long history of abortion in common law, known as "destroying infants in the mother's womb" and punishable by "transported beyond this season for the term of his or her natural life or for any term not less than 15 years" (William Russell, A Treastise On Crimes and Misdemeanors (Philadelphia: T& JW Johnson & Co.,1857), p. 671).
Historically, some phases of the common law punished the perpetrator of an abortion only if it occurred subsequent to the woman being quick with child. A woman was quick with childonce she had felt the foetus move within her.
As early as 1869, Canada prohibited abortion - see image from the 1869 statute pictured.
Section 287 of the Criminal Code became law in 1969.
The Charter of Rights and Freedoms followed in 1982.
The Code made it a criminal offence to "procure a miscarriage."
Section 287 says that every one who, with intent to procure the miscarriage of a female person, uses drugs, instruments or manipulation of any kind, for the purpose of carrying out their intention, is guilty of an indictable offence and liable to imprisonment for life. The Code exempted doctors from criminal liability if a hospital abortion committee was prepared to sign a statement to the effect that the "continuation of the pregnancy of the female person would or would likely to endanger (the pregnant woman's) life or health."
Section 7 of the Chartersays that:
"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
Dr. Henry Mortgentaler, through his attempts at establishing abortion clinics in a variety of Canadian provinces, forced the issue of the lawfulness of section 287 of the Criminal Code.
The issue came to a judicial head in 1988, when the Supreme Court ruled that section 287 of the Code offended section 7 of the Charter, and that the former was therefore of no force or effect (1 SCR 30).
Wrote Chief Justice, Brian Dickson:
"Forcing a woman by threat of criminal sanction to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and this a violation of her security of the person."
There were to be other legal challenges.
Joseph Borowski asked the high court to rule that abortions violated the foetus' right to life and equality under section 7 of the Charter.
The Saskatchewan Court of Appeal ruled that a foetus was not a person capable of claiming rights under the Charter.
Borowski's case never made it to the Supreme Court as the decision in Mortgentaler made the issue in Borowski's appeal moot.
The issue of the rights of the foetus reached the Supreme Court when, in 1989, a Quebec man succeeded in getting an injunction from a Quebec court to prevent his former partner from aborting her foetus (Tremblay v. Daigle, 2 SCR 530).
The Court sidestepped the question of foetal rights under the Charter by deciding that the foetus was not a "person" under Quebec civil law:
"A number of Anglo-Canadian courts have considered the status of a foetus in cases which are similar to the present appeal. These courts have consistently reached the conclusion that to enjoy rights, a foetus must be born alive.... In light of this treatment of foetal rights in civil law and, in addition, the consistency to be found in the common law jurisdictions, it would be wrong to interpret the vague provisions of the Quebec Charter as conferring legal personhood upon the foetus."
In R. v. Sullivan, Canada's Supreme Court, in 1991, 1 SCR, 489, a childbirth assisted by midwives went wrong; when the bay was delivered, the child showed no signs of life and resuscitation attempts were unsuccessful. The midwives were charged with criminal negligence causing death and bodily harm. The midwives were acquitted because the foetus was not a "person".
A legislative vacuum of sorts was created.
Nova Scotia tried to write a law which prevented abortions except at certified hospitals. The provincial act was ruled invalid as an encroachment on criminal law powers that is reserved to the federal government.
When she was prime minister, Kim Campbell tabled a bill to bring back a form of criminal law control over abortions. The bill survived a close vote in the House of Commons on May 29, 1990, (140 to 131) but was defeated in the Senate by a rare tie vote (43 to 43) on January 31, 1991.
Therefore, since the Mortgentaler decision, there is no Canadian criminal law which addresses abortion.
In 1996, a pregnant Ottawa woman, Brenda Drummond, tried to kill herself or her foetus by discharging a pellet gun into her vagina.
The pellet lodged into the foetus' head. A few days later, she gave birth in the bathroom of her home. The baby was born alive. Emergency surgery saved it's life when an x-ray revealed the pellet in the child's head.
Prosecutors were at a loss as to what crime, if any, she had committed. Finally, it occurred to them that for ignoring the risk to the baby in not disclosing the firearm discharge, she had endangered the child.
She was charged under s. 215 of the Criminal Code, which requires a parent to provide necessaries of life for their children, was convicted and was given a suspended sentence.
Published: Friday, October 20, 2006
Last updated: Wednesday, March 24, 2010
Morgentaler v R 1 SCR 30 1988: Abortion -- Criminal Code prohibiting abortion (From: www.hrcr.org/safrica/life/morgentaler_r.html)
Morgentaler v R 1 SCR 30 1988: Abortion -- Criminal Code prohibiting abortion except where life or health of woman endangered -- Whether or not abortion provisions infringe right to life, liberty and security of the person -- If so, whether or not such infringement in accord with fundamental justice -- Whether or not impugned legislation reasonable and demonstrably justified in a free and democratic society
Constitutional law -- Charter of Rights -- Life, liberty and security of the person -- Fundamental justice --Abortion -- Criminal Code prohibiting abortion except where life or health of woman endangered -- Whether or not abortion provisions infringe right to life, liberty and security of the person -- If so, whether or not such infringement in accord with fundamental justice -- Whether or not impugned legislation reasonable and demonstrably justified in a free and democratic society -- Canadian Charter of Rights and Freedoms, ss. 1, 7 -- Criminal Code, R.S.C. 1970, c. C-34, s. 251.
Whether or not impugned legislation reasonable and demonstrably justified in a free and democratic society (page 31).
Appellants, all duly qualified medical practitioners, set up a clinic to perform abortions upon women who had not obtained a certificate from a therapeutic abortion committee of an accredited or approved hospital as required by s. 251(4) of the Criminal Code. The doctors had made public statements questioning the wisdom of the abortion laws in Canada and asserting that a woman has an unfettered right to choose whether or not an abortion is appropriate in her individual circumstances. Indictments were preferred against the appellants charging that they had conspired with each other with intent to procure abortions contrary to ss. 423(1)(d) and 251(1) of the Criminal Code.
Counsel for the appellants moved to quash the indictment or to stay the proceedings before pleas were entered on the grounds that s. 251 of the Criminal Code was ultra vires the Parliament of Canada, in that it infringed ss. 2(a), 7 and 12 of the Charter, and was inconsistent with s. 1(b) of the Canadian Bill of Rights.
The Court stated the following constitutional questions:
1. Does section 251 of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms?
2. If section 251 of the Criminal Code of Canada infringes or denies the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms, is s. 251 justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982? (page 32)
3. Is section 251 of the Criminal Code of Canada ultra vires the Parliament of Canada?
4. Does section 251 of the Criminal Code of Canada violate s. 96 of the Constitution Act, 1867?
5. Does section 251 of the Criminal Code of Canada unlawfully delegate federal criminal power to provincial Ministers of Health or Therapeutic Abortion Committees, and in doing so, has the Federal Government abdicated its authority in this area?
6. Do sections 605 and 610(3) of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by ss. 7, 11(d), 11(f), 11(h) and 24(1) of the Canadian Charter of Rights and Freedoms?
7. If sections 605 and 610(3) of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by ss. 7, 11(d) 11(f), 11(h) and 24(1) of the Canadian Charter of Rights and Freedoms, are ss. 605 and 610(3) justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?
Held (McIntyre and La Forest JJ. dissenting): The appeal should be allowed and the acquittals restored. The first constitutional question should be answered in the affirmative as regards s. 7 and the second in the negative as regards s. 7. The third, fourth and fifth constitutional questions should be answered in the negative. The sixth constitutional question should be answered in the negative with respect to s. 605 of the Criminal Code and should not be answered as regards s. 610(3). The seventh constitutional question should not be answered.
Per Dickson C.J. and Lamer J.: Section 7 of the Charter requires that the courts review the substance of legislation once the legislation has been determined to infringe an individual's right to "life, liberty and security of the person". Those interests may only be impaired if the principles of fundamental justice are respected. It was sufficient here to investigate whether or not the impugned legislative provisions met the procedural standards of fundamental justice and the Court accordingly did not need to tread the fine line between substantive review and the adjudication of public policy.
State interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitutes a breach of security of the person. Section 251 clearly interferes with a woman's physical and bodily integrity. Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference (page 33) with a woman's body and thus an infringement of security of the person. A second breach of the right to security of the person occurs independently as a result of the delay in obtaining therapeutic abortions caused by the mandatory procedures of s. 251 which results in a higher probability of complications and greater risk. The harm to the psychological integrity of women seeking abortions was also clearly established.
Any infringement of the right to life, liberty and security of the person must comport with the principles of fundamental justice. These principles are to be found in the basic tenets of our legal system. One of the basic tenets of our system of criminal justice is that when Parliament creates a defence to a criminal charge, the defence should not be illusory or so difficult to attain as to be practically illusory.
The procedure and restrictions stipulated in s. 251 for access to therapeutic abortions make the defence illusory resulting in a failure to comply with the principles of fundamental justice. A therapeutic abortion may be approved by a "therapeutic abortion committee" of an "accredited or approved hospital". The requirement of s. 251(4) that at least four physicians be available at that hospital to authorize and to perform an abortion in practice makes abortions unavailable in many hospitals. The restrictions attaching to the term "accredited" automatically disqualifies many Canadian hospitals from undertaking therapeutic abortions. The provincial approval of a hospital for the purpose of performing therapeutic abortions further restricts the number of hospitals offering this procedure. Even if a hospital is eligible to create a therapeutic abortion committee, there is no requirement in s. 251 that the hospital need do so. Provincial regulation as well can heavily restrict or even deny the practical availability of the exculpatory provisions of s. 251(4).
The administrative system established in s. 251(4) fails to provide an adequate standard for therapeutic abortion committees which must determine when a therapeutic abortion should, as a matter of law, be granted. The word "health" is vague and no adequate guidelines have been established for therapeutic abortion committees. It is typically impossible for women to know in advance what standard of health will be applied by any given committee.
The argument that women facing difficulties in obtaining abortions at home can simply travel elsewhere would not be especially troubling if those difficulties (page 34) were not in large measure created by the procedural requirements of s. 251. The evidence established convincingly that it is the law itself which in many ways prevents access to local therapeutic abortion facilities.
Section 251 cannot be saved under s. 1 of the Charter. The objective of s. 251 as a whole, namely to balance the competing interests identified by Parliament, is sufficiently important to pass the first stage of the s. 1 inquiry. The means chosen to advance its legislative objectives, however, are not reasonable or demonstrably justified in a free and democratic society. None of the three elements for assessing the proportionality of means to ends is met. Firstly, the procedures and administrative structures created by s. 251 are often unfair and arbitrary. Moreover, these procedures impair s. 7 rights far more than is necessary because they hold out an illusory defence to many women who would prima facie qualify under the exculpatory provisions of s. 251(4). Finally, the effects of the limitation upon the s. 7 rights of many pregnant women are out of proportion to the objective sought to be achieved and may actually defeat the objective of protecting the life and health of women.
Constitutional law -- Charter of Rights -- Life, liberty and security of the person -- Fundamental justice --Abortion -- Criminal Code prohibiting abortion except where life or health of woman endangered -- Whether or not abortion provisions infringe right to life, liberty and security of the person -- If so, whether or not such infringement in accord with fundamental justice -- Whether or not impugned legislation reasonable and demonstrably justified in a free and democratic society -- Canadian Charter of Rights and Freedoms, ss. 1, 7 -- Criminal Code, R.S.C. 1970, c. C-34, s. 251.
Whether or not impugned legislation reasonable and demonstrably justified in a free and democratic society (page 31).
Appellants, all duly qualified medical practitioners, set up a clinic to perform abortions upon women who had not obtained a certificate from a therapeutic abortion committee of an accredited or approved hospital as required by s. 251(4) of the Criminal Code. The doctors had made public statements questioning the wisdom of the abortion laws in Canada and asserting that a woman has an unfettered right to choose whether or not an abortion is appropriate in her individual circumstances. Indictments were preferred against the appellants charging that they had conspired with each other with intent to procure abortions contrary to ss. 423(1)(d) and 251(1) of the Criminal Code.
Counsel for the appellants moved to quash the indictment or to stay the proceedings before pleas were entered on the grounds that s. 251 of the Criminal Code was ultra vires the Parliament of Canada, in that it infringed ss. 2(a), 7 and 12 of the Charter, and was inconsistent with s. 1(b) of the Canadian Bill of Rights.
The Court stated the following constitutional questions:
1. Does section 251 of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms?
2. If section 251 of the Criminal Code of Canada infringes or denies the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms, is s. 251 justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982? (page 32)
3. Is section 251 of the Criminal Code of Canada ultra vires the Parliament of Canada?
4. Does section 251 of the Criminal Code of Canada violate s. 96 of the Constitution Act, 1867?
5. Does section 251 of the Criminal Code of Canada unlawfully delegate federal criminal power to provincial Ministers of Health or Therapeutic Abortion Committees, and in doing so, has the Federal Government abdicated its authority in this area?
6. Do sections 605 and 610(3) of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by ss. 7, 11(d), 11(f), 11(h) and 24(1) of the Canadian Charter of Rights and Freedoms?
7. If sections 605 and 610(3) of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by ss. 7, 11(d) 11(f), 11(h) and 24(1) of the Canadian Charter of Rights and Freedoms, are ss. 605 and 610(3) justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?
Held (McIntyre and La Forest JJ. dissenting): The appeal should be allowed and the acquittals restored. The first constitutional question should be answered in the affirmative as regards s. 7 and the second in the negative as regards s. 7. The third, fourth and fifth constitutional questions should be answered in the negative. The sixth constitutional question should be answered in the negative with respect to s. 605 of the Criminal Code and should not be answered as regards s. 610(3). The seventh constitutional question should not be answered.
Per Dickson C.J. and Lamer J.: Section 7 of the Charter requires that the courts review the substance of legislation once the legislation has been determined to infringe an individual's right to "life, liberty and security of the person". Those interests may only be impaired if the principles of fundamental justice are respected. It was sufficient here to investigate whether or not the impugned legislative provisions met the procedural standards of fundamental justice and the Court accordingly did not need to tread the fine line between substantive review and the adjudication of public policy.
State interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitutes a breach of security of the person. Section 251 clearly interferes with a woman's physical and bodily integrity. Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference (page 33) with a woman's body and thus an infringement of security of the person. A second breach of the right to security of the person occurs independently as a result of the delay in obtaining therapeutic abortions caused by the mandatory procedures of s. 251 which results in a higher probability of complications and greater risk. The harm to the psychological integrity of women seeking abortions was also clearly established.
Any infringement of the right to life, liberty and security of the person must comport with the principles of fundamental justice. These principles are to be found in the basic tenets of our legal system. One of the basic tenets of our system of criminal justice is that when Parliament creates a defence to a criminal charge, the defence should not be illusory or so difficult to attain as to be practically illusory.
The procedure and restrictions stipulated in s. 251 for access to therapeutic abortions make the defence illusory resulting in a failure to comply with the principles of fundamental justice. A therapeutic abortion may be approved by a "therapeutic abortion committee" of an "accredited or approved hospital". The requirement of s. 251(4) that at least four physicians be available at that hospital to authorize and to perform an abortion in practice makes abortions unavailable in many hospitals. The restrictions attaching to the term "accredited" automatically disqualifies many Canadian hospitals from undertaking therapeutic abortions. The provincial approval of a hospital for the purpose of performing therapeutic abortions further restricts the number of hospitals offering this procedure. Even if a hospital is eligible to create a therapeutic abortion committee, there is no requirement in s. 251 that the hospital need do so. Provincial regulation as well can heavily restrict or even deny the practical availability of the exculpatory provisions of s. 251(4).
The administrative system established in s. 251(4) fails to provide an adequate standard for therapeutic abortion committees which must determine when a therapeutic abortion should, as a matter of law, be granted. The word "health" is vague and no adequate guidelines have been established for therapeutic abortion committees. It is typically impossible for women to know in advance what standard of health will be applied by any given committee.
The argument that women facing difficulties in obtaining abortions at home can simply travel elsewhere would not be especially troubling if those difficulties (page 34) were not in large measure created by the procedural requirements of s. 251. The evidence established convincingly that it is the law itself which in many ways prevents access to local therapeutic abortion facilities.
Section 251 cannot be saved under s. 1 of the Charter. The objective of s. 251 as a whole, namely to balance the competing interests identified by Parliament, is sufficiently important to pass the first stage of the s. 1 inquiry. The means chosen to advance its legislative objectives, however, are not reasonable or demonstrably justified in a free and democratic society. None of the three elements for assessing the proportionality of means to ends is met. Firstly, the procedures and administrative structures created by s. 251 are often unfair and arbitrary. Moreover, these procedures impair s. 7 rights far more than is necessary because they hold out an illusory defence to many women who would prima facie qualify under the exculpatory provisions of s. 251(4). Finally, the effects of the limitation upon the s. 7 rights of many pregnant women are out of proportion to the objective sought to be achieved and may actually defeat the objective of protecting the life and health of women.