Dobbs v. Jackson Women’s Health Organization

On June 24, 2022, the Supreme Court of the United States held in Dobbs v. Jackson Women’s Health Organization that the U.S. Constitution does not confer a right to abortion. In the future, laws regulating abortion should be made by the people through the ordinary democratic process.

In reaching this decision, the court overturned Roe v. Wade, a case decided by the court in 1973, which held that the U.S. Constitution conferred a broad right to obtain an abortion.  The court also overturned another decision, Planned Parenthood of Southeaster Pa. v. Casey, which upheld Roe on the basis of stare decisis, which is a legal doctrine that generally requires a court to follow its prior legal decisions.

The majority opinion in Dobbs found that the decision in Roe was “egregiously wrong from the start”. The majority noted the constitution does not make any reference to abortion. While defenders of abortion rights had argued that the constitution implicitly protects the right to abortion, such an implicit right would have to be “deeply rooted in the Nation’s history and tradition” and “implicit in the concept of ordered liberty”, which abortion was not. As for the doctrine of stare decisis, which was pivotal in Casey, the majority observed that the doctrine does not compel unending adherence to the “abuse of judicial authority” manifested in Roe.

Stare Decisis – Should Courts Follow their own Decisions?

Some commentators have criticized the U.S. Supreme Court for not applying the doctrine of stare decisis in the Dobbs decision. This doctrine means that lower courts are bound by the decisions of higher courts. The doctrine also generally means that courts should follow their own prior decisions, but there are exceptions to this rule. In Canadian courts, this rule is most likely to be relaxed in cases where the issue at stake is constitutional and the court is one of final jurisdiction, such as the Supreme Courts of Canada.  The reason for this relaxed rule is that there is almost no remedy for an incorrectly-decided constitutional case at the supreme court level because there is no route of appeal from a court of final jurisdiction, and constitutional amendments are impracticable. Indeed, the supreme courts of both Canada and the United States have a history of overturning themselves. In the last ten years, the Supreme Court of Canada has reversed its prior decisions on prostitution and euthanasia. As for the United States Supreme Court, it famously overturned itself in Browne v. Board of Education when it refused to follow precedent authorizing racial segregation in schools and other public places.^[1]

Abortion Laws in Canada

There have not been any criminal laws restricting abortion in Canada since R. v. Morgentaler was decided by the Supreme Court of Canada in 1988. In that case, the court struck down criminal laws which limited abortion to procedures performed in an accredited hospital upon review by a committee confirming that the mother’s life or health would be endangered by the continuation of the pregnancy.  While there were a number of judicial opinions in Morgentaler, the majority of judges held that the law should be struck for being inconsistent with section 7 of the Charter, which guarantees 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”. The reasoning was that the criminal code requirements unnecessarily posed a risk to a woman's health.

While the court struck certain provisions criminalizing abortion, they did not rule that abortion is a constitutional right or that all restrictions on abortion would be illegal. In fact, all of the judges who ruled in favour of striking the provisions recognized that protection of fetal interests by Parliament was a valid governmental objective. Following this decision, Parliament attempted to pass a bill which would have criminalized abortions where a woman’s health was not at risk. The bill passed in the House of Commons, but it was defeated in the Senate after a tie vote.

While legislators have not made laws restricting abortion since Morgentaler, courts have continued to weigh in on peripheral issues relating to fetuses.  In Trembley v. Daigle, the court held that a fetus is not a human being for the purpose of having a “right to life” under the Quebec Charter of Rights and Freedoms.  Similarly, the court held in R. v. Sullivan that a fetus is not a person within the meaning of the Criminal Code offence of death by criminal negligence. Conversely, in R. v. Levkovic, the court refused to strike down section 243 of the Criminal Code which makes it an offence to dispose of the “body of a child” for the purpose of concealing delivery, even in cases where the child died before birth. The court held that the phrase “a child that died before birth” was not vague, and agreed with the Ontario Court of Appeal that a fetus becomes a child when it reaches a stage in its development when, but for some external event or other circumstance, it would likely have been born alive. This interpretation for when a fetus becomes a child was restricted to s. 243 of the Criminal Code.

Abortion Issues in Canada

Proponents of abortion rights argue that main issue with abortion in Canada today is barriers to access. Prolife individuals disagree, describing abortion itself as being the main issue, including sex selective and late term abortions.

The debate about access to abortion has implications for other Charter rights, such as freedom of expression and freedom of religion and conscience. In Ontario, for example, the Safe Access to Abortion Services Act, 2017, creates “access zones” around clinics and facilities that perform abortions. A number of activities are prohibited inside these access zones, including the performance any “act of disapproval” concerning issues related to abortion services by any means.  Similar legislation restricting free expression exists in Newfoundland, Nova Scotia, Quebec, Alberta and British Columbia.

Municipal bylaws are another way expression is sometimes limited because of the abortion debate. As an example, the City of London, Ontario, passed a bylaw in May 2022 that prohibits the delivery to residential properties of any image which shows or purports to show a fetus unless the image is fully concealed in a sealed envelope or package which contains a warning that the image may be offensive or disturbing to some people. While city councillors have justified their actions by invoking the power to make bylaws that respect the “health, safety and well-being of persons”, the bylaw’s narrow focus on prohibiting images of fetuses, regardless of how benign they might be, suggests that the law is really about limiting expression related to abortion.

The Charter rights to freedom of religion and conscience are also impacted by the abortion debate. In 2015, the College of Physicians and Surgeons of Ontario introduced its “Professional Obligations and Human Rights” policy statement, which required physicians in Ontario to provide effective referrals to other health care providers in cases where they themselves were unwilling to provide care for a patient for reasons of conscience or religion.  Some physicians objected that providing an effective referral for abortion was morally equivalent to performing an abortion, which went against their consciences or religious beliefs. A legal application challenging the policy eventually made its way to the Ontario Court of Appeal, where that court decided that the policy did infringe the Charter rights of physicians, but that the infringement was reasonable and necessary given the objective of equitable access to healthcare.

Take Away

Disagreement over abortion is unlikely to be settled anytime soon. In the United States, laws prohibiting abortion will be left to individual states. In Canada, there are no laws prohibiting abortion and that situation is unlikely to change, but the debate is likely to be litigated on collateral issues where it intersects with criminal law, freedom of expression, religion and conscience.

[1] Hogg, P. Constitutional Law of Canada, 2015 Student Edition, (Toronto, Thomson Reuters Canada Limited, 2015)

Our constitution protects this freedom because of the core values which underly it, namely democratic discourse, truth finding, and self-fulfillment.

In a recent case called Ward v. Quebec, a majority of judges at the Supreme Court of Canada explained that the right to freedom of expression is about protecting a public good as opposed to protecting the individual. However, unless we are willing to protect speech that is highly offensive to many or even to the majority, we will not have a free society.

Our former Chief Justice of Canada, Beverly McLaughlin, previously made this point in a dissenting judgment when she said “the view of the majority has no need of constitutional protection.” This same idea has now been adopted by the Supreme Court in Ward v. Quebec, where the majority stated that “freedom to express harmless opinions that reflect a consensus is not freedom.”  In other words, freedom of expression only begins when we tolerate views with which we disagree.

Hate Speech

Despite the protection our constitution affords free expression, our laws sometimes place limits on that freedom. Legally defined hate speech is one example of a limit to freedom of expression that has been recognized by our courts as reasonable and necessary.

Under the Criminal Code, it is an offence to communicate statements, other than in private conversation, that wilfully promote hatred against any identifiable group. The objective of this law, as stated in R. v. Keegstra, is to protect people from discrimination and to foster harmonious social relations.

Obviously, there is a tension between Criminal Code restrictions on speech and the right to freedom of expression. However, that tension is partially relieved by the fact that criminal hate speech does not reinforce the values which underly free speech as it tends to be vile and misleading.  In addition, the Attorney General must consent to the prosecution of the offence. Finally, the crime must be proved to a high legal standard and there are statutory defences available to the accused, such as the defence that the impugned statements were true.

In the civil context, hate speech usually arises in relation to human rights codes. In a case called Saskatchewan v. Whatcott, the Supreme Court of Canada upheld a provision of Saskatchewan’s Human Rights Code that prohibited expression that would expose a person to hatred. The court defined hate speech as expression that would likely expose persons to detestation and vilification based on a prohibited ground of discrimination such as race or religion. The court was clear, however, that hate speech is a “most extreme type of expression” and that it did not include expression that ridicules, belittles or otherwise affronts the dignity of any person on the basis of a prohibited ground.

Recent Attempts to Extend Hate Speech Laws

In June 2021, Canada’s Minister of Justice introduced Bill C-36 which would have changed the law on hate speech. Had the bill not died on the Order Paper when Prime Minister Justin Trudeau called an election, it would have amended the Canadian Human Rights Act to establish a new discriminatory practice of communicating hate speech online.

Bill C-36 would have also amended the Criminal Code to allow a person to ask a judge for a restraining order if the person had reasonable grounds to fear that another person would commit the crime of wilfully promoting hatred. If the Attorney General consented to the commencement of this process, a judge would be empowered to place conditions on the suspected person, including the imposition of a curfew, the wearing of an electronic monitoring device, the abstaining from alcohol, and the forced provision of a bodily substance sample. All of this would happen without any criminal charges being laid.

Do we need more laws on hate speech?

Lately we have seen that politicians and other political opportunists will make false accusations of hate speech against their opponents in attempts to vilify and silence them. Some politicians, for example, broadly labeled members of the Freedom Convoy as hateful and racist despite the fact that there was little or no evidence for this claim.

False allegations do serious damage to the concept of hate speech and to freedom of expression. The concept of hate speech is weakened when it is used to denounce activity that does not rise to the level of unlawful speech as defined by our courts.  It is not unlike someone using the term “genocide” or “crimes against humanity” to describe events which fall short of actual atrocities. As an English Bishop once said, “everything is what it is and not another thing.”

When allegations of hate speech are weaponized for political or other gain, public perception of the meaning of hate speech may be redefined. One potential consequence of this redefinition is that opposition to hate speech laws may increase as the concept becomes diluted, increasingly separate from its original purpose, and as people begin to suspect ulterior motives.  In this situation, fringe groups, who would not otherwise command an audience, may take up the banner of free speech to occupy a legitimate place in public discourse.

Another potential consequence to redefining hate speech is that it will limit dialogue and the free exchange of ideas as people self-censor for fear of saying the wrong thing.  Freedom of expression does not require us to say repugnant things, but it offers us the opportunity to respond to difficult and controversial ideas. Our ability to think critically requires us to confront challenging ideas. As our ability to think critically decreases, our susceptibility to bad ideas increases, and that is not a good thing when one opposes hate and discrimination.

When deciding whether we need more hate speech laws, we should ask ourselves whether our current laws are sufficient, how the new laws will be used, and whether the new laws will create a more tolerant society without unduly infringing upon free expression.

History

For the past 40 years freedom of expression, including freedom of the press and other media of communication, has been entrenched as a fundamental freedom guaranteed to all persons under the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada has repeatedly explained that the rationales underlying this freedom include democratic discourse, truth finding and self-fulfillment.

It is less well-known that freedom of expression in Canada predates the Charter. As the United Kingdom was a democracy at the time of Confederation, Canada, too, became a democracy. Thus, when Canada received “a constitution similar to that of the United Kingdom”, free expression was implied at Confederation and imported into our laws.

A democracy cannot function properly without freedom of expression and a free press. It is for this reason that in 1938, after Confederation but decades before the Charter was enacted, the Supreme Court of Canada struck down Alberta’s Accurate News and Information Act, which required newspapers to print “clarifications” on stories that the government deemed to be “inaccurate”. In his reasons for striking down the law, Justice Cannon stated that the foundation of a democracy is free inquiry and free discussion on all matters affecting the state. To survive, he wrote, a democracy requires “untrammeled publication of the news”.

Is Canada’s independent media under threat?

Presently, there are two government bills before the House of Commons which appear to interfere with Canada’s long history of free expression. One bill, the Online Streaming Act (Bill C-11), seeks to expand the authority of the CRTC by bringing streaming services within its regulatory framework. Some critics of this bill are concerned that the CRTC will control the comments Canadians post on social media sites like YouTube, and that these controls will extend to content produced by independent media companies who have, hitherto, operated outside of government regulations.

Another bill, the Online News Act (Bill C-18), will force digital platforms like Google to make financial payments to “eligible news businesses”. Some critics suggest that this bill will empower the government to determine which news outlets are “eligible news businesses”, reward legacy media companies for their lack of innovation and give them an unfair advantage over news organizations that will not meet the government’s eligibility test to receive payments. This concern is amplified by the fact that legacy media companies have already received hundreds of millions of taxpayer dollars from the federal government, which has caused some to question their independence.

Conclusion

Freedom of expression and a free media are crucial for the proper, healthy maintenance of Canada’s democracy. Laws which attempt to regulate the media through reward and punishment put our democracy at risk by preventing Canadians from comment and criticism of important social and political issues.

Choosing to Get Vaccinated?

Supporters of vaccine mandates claim no one is forced to get vaccinated. Mandates present choices like the choice between getting fired or getting vaccinated. Since someone can choose to get fired, that person is not being forced to get vaccinated.

What is wrong with this argument?

One problem with this argument is that presenting a “choice” can sometimes be the same thing as coercing a certain outcome.

Imagine a robber asking you to choose between your money or your life. You give the robber your money because you want to live. Are you being forced to give the robber your money? Yes and no. It is possible for you to choose not to turn over your money. But the robber has forced you into the position where you must make a choice that leaves you with poor consequences whatever you choose. And because the consequence of not turning over your money is so terrible, the robber coerces you to do so. Mandates amount to coerced choice.

Free Choice

Free choice is the antithesis of coercion. It reflects a person’s authentic beliefs and desires, as opposed to the beliefs and desires of others.

The ethical concept of free choice in medical treatment is widely accepted both legally and medically. The Supreme Court of Canada has repeatedly affirmed a person’s right to be free from non-consensual medical treatment. Non-consensual (including coerced) medical treatment can even be an assault or battery. Likewise, The Canadian Medical Protective Association states that there must never be “any suggestion of duress or coercion” in a person’s decision to accept medical treatment. Doctors must ensure “that the will of other persons has not been imposed on a patient”.

Conclusion

Getting fired may not be as bad as losing your life but it is no small thing, especially for someone with dependents. Presenting the choice of getting fired or getting vaccinated is presenting a special kind of choice in which getting vaccinated is a coerced outcome. It is not a truly free choice like some would have you believe.