Would a Poilievre government really threaten abortion rights?
May 23, 2024
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Opposition leader Pierre Poilievre discusses potential use of notwithstanding clause for criminal justice reform and its impact on abortion rights. Professor Daphne Gilbert delves into political posturing, precedents, and risks for access to abortion. Explore implications of using the notwithstanding clause on Canada's legal system and Charter of Rights.
Using the notwithstanding clause for criminal justice reform could set a precedent for restricting abortion rights.
The absence of criminal regulations on abortion in Canada makes it a medically necessary service regulated by provinces.
Deep dives
History of Abortion Legalization in Canada
Abortion in Canada was initially prohibited until 1969 when Section 251 allowed it under strict conditions with approval from a therapeutic abortion committee. The Supreme Court later struck down Section 251 citing violations of the Charter of Rights and Freedoms. Canada remains unique globally without criminal regulations on abortion, treating it as a medically necessary service regulated by provinces.
Notwithstanding Clause and Criminal Justice
The notwithstanding clause, unique to the Charter of Rights, permits overriding certain sections if specified. While historically used by provincial governments in various instances, its potential application in criminal justice at the federal level, specifically around abortion, raises concerns. The clause distorting original intents and invoking it in criminal law undermines the strong rights protections in the Charter.
Political Implications of Notwithstanding Clause on Abortion
The invocation of the notwithstanding clause, particularly in matters of criminal justice and potential regulation of abortion, carries significant political repercussions. Despite restrictions on completely re-criminalizing abortion under the Charter, using the clause could lead to severe restrictions on abortion access. The political accountability for such actions remains uncertain but could result in serious public backlash, given the widespread approval of abortion as an equality right in Canada.
Opposition leader Pierre Poilievre has promised to use the notwithstanding clause to enact criminal justice reform if elected. Liberals have pointed to this as an indication that Conservatives would use it for other things, including restricting abortion.
How much of this is political posturing from either side? How huge a precedent would using the notwithstanding clause this way represent? If a Conservative government went down this path, would access to abortion really be at risk? And what could the Liberals do now if they believed that to be the case?
GUEST: Daphne Gilbert, professor of criminal and constitutional law at the University of Ottawa
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