THE MORGENTALER TRIALS: CLAUDE-ARMAND SHEPPARD AND THE SPIRIT OF LAW

By Beryl Wajsman on June 18, 2013

"For law to be respected, it must first be made respectable.” ~ Justice Louis D. Brandeis 

Dr. Henry Morgentaler died forty years after the first of the Morgentaler trials. In a time of expanding statist fiat, increasing conformity and ungracious self-absorption, it is important to reflect on how law can be wrestled to submit to justice when challenged by courage and conscience. The Morgentaler trials were arguably the pre-eminent examples of this in our era, both as regards our judiciary and our legislatures. They realized the dream  of  19th century abolitionist Charles Sumner who demanded: “Fiat justitia ruat caelum! Let justice be done though the heavens fall! "~BPW

Much has been written about  Morgentaler’s  acts and his convictions that affirmed collective dignity and individual freedom for all women in Canada. This is as it should be. This was  paramount.

But the legacy of the Morgentaler trials in Quebec was greater than that. We are affected by them to this very day. They were profiles in courage and conscience. Profiles of a doctor who challenged the  law of our land, and his lawyer - Claude-Armand Sheppard - who  changed the life of our law.  And not enough has been written about that.

Morgentaler and Sheppard challenged smug assumptions and unmasked hypocritical authority at a crucial time in Canadian history. Only a decade after the Quiet Revolution took root in Quebec pulling apart state and faith, and half that time since Prime Minister Trudeau commenced his attempt at liberating our personal imperatives from the constraints of suffocating law and legislation, these trials would prove to be litmus tests of our commitment to the sovereignty of individual choice over collective dictate; secular reason over religious doctrine; the living spirit of the law reforming the calcified letter of it.

Henry Morgentaler demontrated that civil disobedience of bad law was a vital surety of liberty. Claude-Armand Sheppard proved Justice Brandeis' adage that, "For law to be respected, it must first be made respectable."

Morgentaler and Sheppard had met at the Montreal Humanist Fellowship, now the Humanist Association of Canada,  The Humanist movement worldwide was founded by, amongst others, Lord Bertrand Russell. The stated mission of the Canadian Humanists was, "To actively promote the separation of religion from public policy and foster the development of reason, compassion and critical thinking for all Canadians through secular education and community support." In addition to practicing law, Sheppard was also writing for "Le Haut Parleur" the weekly newspaper of Sen. T.D. Bouchard. Though a devout Catholic, Bouchard was a free-thinker who advocated for the removal of Church influence from Quebec politics. He advocated for a lay society in Quebec long before it became fashionable. He famously denounced Duplessis in the 1930s  by stating that, "Liberty cannot accomodate a discipline that not only dictates what you think but how you think." Duplessis labelled Bouchard "Le diable de Ste-Hyacinthe, " a sobriquet Bouchard wore proudly.

Humanist groups in the 1950s and 1960s  were among the lone voices with the courage to denounce what we take as  obvious today - religious doctrine should not influence law and public policy. The most glaring example of  the latter may well have been Canada's anti-abortion laws.

Morgentaler, as a survivor of the Lodz Ghetto and Dachau, understood first hand what it meant when a society did not respect individual prerogative above state fiat. He also knew the devastating effects on a society whose laws were based on the tenets of what French philosopher Jules Isaac called "exclusiveness and intolerance."

Morgentaler, by all accounts, was brilliant, gruff and adversarial to any challenge of his opinions. Sheppard, a renaissance man in the truest sense, never let his brilliance stand in the way of a welcoming countenance, an open and inquisitive intelligence and a readiness to listen and engage unencumbered by any self-doubt. Though the personalities were different, the two were minds of one piece on this issue. Though they would probably both reject the notion,  it was a partnership that destiny itself might have devised.

It was not philosophy alone that led Morgentaler to challenge the hypocrisy of Canada's anti-abortion laws. He had a thriving family practice. He saw the misery and death caused by back alley abortions. He was moved to act. On October 19, 1967 he presented a brief on behalf of the Humanist Association of Canada before a House of Commons Committee that was investigating the issue of illegal abortion. Morgentaler stated that women should have the right to a safe abortion. The reaction to his appearance surprised even him. He began to receive an avalanche of calls from desperate women - from all strata of society - seeking safe abortions.  

Morgentaler's initial response was to refuse. He has been quoted as saying that "I hadn't realized the magnitude of the problem in immediate, human terms."  For a time he was able to refer women to two other doctors who did abortions, but they became unavailable. There was no one to whom he could send them, and some of them were ending up in the emergency departments after amateur abortions. He has said that he felt like a coward for sending them away and that he was shirking his responsibility. Eventually, in spite of the risks to himself—loss of career, prison for years or for life—he decided to perform abortions , save women's lives and, at the same time, challenge the law. And he determined to use civil disobedience to change that  law.

In 1968 Morgentaler gave up his family practice and began performing abortions in his private clinic in the east end.  At the time, abortion was illegal except for cases in which continuing a pregnancy threatened the life of the pregnant woman. On August 26, 1969, an amendment to  the Criminal Code legalized abortion in Canada if performed in an accredited hospital after approval of a Therapeutic Abortion Committee. This was the legal hypocrisy that set up the three Morgentaler prosecutions. The amendment made no provision requiring a hospital to set up such a committee. Only about one-third of hospitals did. Even in those that did, many committees never met. And many of those that met, never saw their "patient" and yet her fate was determined by their subjective opinions. In addition, there was no appeal of a TAC's decision.

Morgentaler’s abortions remained illegal under the new law because he did not operate inside an accredited hospital after approval of a TAC. They only became legal in 1988 when section 251 of the Criminal Code (now known as section 287) was found to be unconstitutional by the Supreme Court of Canada because it was in violation of the Charter. That decision stemmed from one of Morgentaler's Ontario appeals. But it was Sheppard's defences in the three Quebec trials of the 1970s - before the Charter even existed - that not only rocked the legal world, but brought a provincial government to decide - for the first time in our history - that it would simply not enforce the Criminal Code. And brought Parliamant to legislate to prevent courts of appeal from substituting a guilty verdict for a jury acquittal.

In 1969 Morgentaler opened an abortion clinic in Montreal. He applied for status as a model abortion clinic and proposed to the federal and provincial governments that abortions could be safely done outside hospitals. Neither the provincial nor the federal government was interested. Each said it was the other's responsibility. No one came to inspect the clinic. Morgentaler openly challenged authorities, even to prosecute. He did not hide his work. He spoke about it and was very present in the media.

For some six months, nothing happened. Nobody was taking the bait. Finally, on June 1, 1970, Montreal city police raided Morgentaler's clinic and laid several charges of performing illegal abortions. As fate would have it, they couldn't have picked a worse time to expose the injustice of law they were trying to enforce.

Morgentaler had just finished performing a procedure on a McGill student named Parkinson. He had not finished. The police were accompanied by a Dr. Desrosiers, head of gynecology at one of Montreal's hospitals. With Ms. Parkinson still on the table, Desrosiers insisted in performing a physical examination. Parkinson later called the doctor's invasiveness of her akin to "rape." The bitter irony of her situation was that she had gone to the TAC of the Royal Victoria Hospital. The Committee had given her Morgentaler's name and number and suggested she go to him! Yet Desrosiers, as the Crown's star witness denounced Morgentaler's medical methods as substandard, unsanitary and dangerous. Those words would come back to haunt Desrosiers.  It also turned out he had himself referred two patients and his secretary for an abortion to Morgentaler.  The prosecution had not done its homework.

The case did not come to trial until 1973. In the intervening years, women's groups organized in support of Morgentaler and he continued to perform abortions. By 1973, he stated that he had performed 5,000 safe abortions outside hospitals, demonstrating that a hospital setting was not necessary. Sheppard gauged the public mood. He concluded that Quebecers had moved far enough away from old doctrines, understood that these were matters of life and death, had been seized of modernity, that he chose a trial by jury. He had faith in the common sense and decency of people.

Sheppard presented a novel defence. The defence of "necessity."  Rarely used and more of a doctrine than a defence backed by substantial jurisprudence. But he felt it was the right moment for an audacious attack and after explaining, in detail, to his client, Morgentaler agreed. Sheppard said Morgentaler was sometimes more difficult to convince than a jury because he wanted every detail to be in synch with his logic, which was by no means lacking.

The defence of necessity came down to this:   because it was impossible for most women to obtain an abortion in an accredited hospital, it was necessary for Morgentaler to operate to safeguard the life and health of the women who came to him for abortions.  After hearing the evidence, the jury acquitted him.

The province appealed the acquittal. In a move literally without precedent, the jury's acquittal was overturned by five judges on the Quebec Court of Appeal in 1974, who substituted a conviction in its place. Never before in history of English criminal law had an appeals court substituted a conviction for an acquittal.  It either rejected the appeal or ordered a new trial. 

Sheppard's audacity could not be compromised even at that level. Justice Louis-Philippe de Grandpre had recently taken his seat on the court. But a short time earlier, as head of the Canadian Bar Association, he had given a speech condemning abortions  and supporting Church doctrine on the issue. Sheppard made a motion that de Grandpre recuse himself from the case! A motion for a recusal of a Supreme had only been tried once before in court history. Chief Justice Laskin tried to convince Sheppard to withdraw his motion. Sheppard refused. But de Grandpre was allowed to sit.

The court upheld Morgentaler's conviction in a 6–3 decision, stating that the danger to women was not immediate and rejected the "necessity" defence, But Danton's injunction of "L'audace, toujours l'audace et encore l'audace" would stand Sheppard and Morgentaler well as the saga unfolded.

Morgentaler was sentenced to 18 months in prison and began serving his sentence in March, 1975 on that first case. But between the first trial that started in 1973 and the Supreme Court decision on it in 1975, Morgentaler  was tried once more  in Montreal for defying the abortion law. Morgentaler was again acquitted.

The Crown appealed the second acquittal. This time the Appeals Court upheld the acquittal.

At Morgentaler's third trial, the presiding judge instructed the jury that though it was the master of the facts, he was the master of the law. And that by the law the jury must convict. In record time the jury acquitted! A court reporter happened to run into the foreman of the jury and asked him how they acquitted so quickly in the face of such a stern instruction? The foreman answered, "We understood what the judge wanted, mais il n'est pas le Pape!" This time the Crown did not bother to appeal. It was clear that the people were ahead of the law.

In 1975 Parliament recognized how egregiously the Appeals Court had acted in imposing a conviction in the first trial. It changed the law so that an Appeals court could not overturn a jury acquittal and substitute a conviction, although it could order a new trial. This has become known as the Morgentaler Amendment to the Criminal Code of Canada. 

In defiance of legal custom, Morgentaler was not released on parole after serving 1/3 of his sentence, six months.  In total, he served ten months, suffering a heart attack while in solitary confinement, after which he was released to hospital.  It was reported that the Liberal Justice Minister for Quebec, Jerome Choquette, was deeply involved and interested in prosecuting Morgentaler until he was removed from the portfolio.

In January 1976, federal Justice Minister Ron Basford, at Morgentaler’s request after his second acquittal, ordered a new trial on the first charge.  Basford said to Sheppard, "I hope you know what you're doing." Sheppard did. On the 18th of September 1976, the trial ended again in an acquittal by a different jury.    

In 1976 the Parti Quebecois took power in Quebec. They realized that the abortion law could not be enforced if juries would not convict, so they dropped all remaining charges. On the 11th of December 1976, the new Justice Minister, Marc-Andre Bedard, dropped the charges against Morgentaler and other doctors and announced that there would be no further trials for clinic abortions in Quebec. This was just in time to prevent a fourth Morgentaler trial from starting on the Monday.

Bedard called the anti-abortion law unenforceable. From that point on, Quebec refused to enforce federal law prohibiting abortions by qualified medical personnel. Bedard emphasized that police would continue to identify and charge unqualified, back-street abortionists. Federal Justice Minister Ron Basford said that Quebec had made a just and fair decision that was proper to provincial authority. Quebec Justice Minister Bedard asked Federal Justice Minister Basford to amend Section 251 of the Criminal Code.

Later in 1976 Bedard announced that from then on abortions performed by doctors in free-standing clinics were legal in the province. For Sheppard, life seemed to be creating a full circle. Bedard, like T.D. Bouchard whom Sheppard had admired years earlier, was also a devout Catholic. But that was a private matter. For the broad public, Claude-Armand Sheppard succeeded in making the spirit of the law reflect Humanist reason and compassion.

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