## Facts

- Dr. Henry Morgentaler, a Quebec physician, performed an abortion in a private clinic on a 26-year-old woman.
- He was charged under Criminal Code § 251(1) with procuring a miscarriage by instrument.
- Section 251 prohibited abortions except those performed in an accredited hospital pursuant to a therapeutic abortion committee’s approval based on danger to the woman’s life or health.
- At trial, Morgentaler admitted performing the procedure but asserted (1) a common-law necessity defense and (2) a statutory defense under Criminal Code § 45 (surgical operations performed with reasonable care and skill).
- The jury acquitted.
- The Quebec Court of Appeal set aside the acquittal and entered a conviction, directing sentencing.
- Morgentaler appealed to the Supreme Court of Canada, also challenging § 251 on constitutional and rights grounds and disputing the appellate court’s authority to substitute a conviction.

## Issues

1. Whether Criminal Code § 251 was a valid exercise of Parliament’s criminal law power and whether it was inoperative under the Canadian Bill of Rights.
2. Whether the preferred indictment constituted an abuse of process by the provincial Attorney General.
3. Whether the trial judge erred by leaving the necessity defense to the jury and whether Criminal Code § 45 could excuse an abortion performed contrary to § 251.
4. Whether the procedure fell outside the meaning of “procuring a miscarriage” within § 251.
5. Whether an appellate court could set aside a jury acquittal and enter a conviction under Criminal Code § 613(4)(b).

## Decision

- The Supreme Court of Canada dismissed the appeal and upheld the conviction.
- The Court held § 251 was valid criminal-law legislation and was not rendered inoperative by the Canadian Bill of Rights.
- The Court held there was no evidentiary foundation of urgent necessity; it was error to leave necessity to the jury.
- The Court held § 45 did not apply to immunize conduct that violated the specific, detailed requirements of § 251.
- The Court rejected the argument that the procedure was outside § 251’s scope; it constituted procuring a miscarriage.
- The Court held the Quebec Court of Appeal had authority to substitute a conviction for a jury acquittal where the acquittal rested on legal error, though the power should be used with great circumspection.
- A dissent would have restored the acquittal, emphasizing concerns with substituting a conviction for a jury’s not-guilty verdict.

## Legal Principles

- A Criminal Code provision structured as a prohibition backed by a penalty may fall within Parliament’s criminal law power when directed at a matter treated as a public evil.
- A necessity defense, even if recognized, requires evidence of real and urgent necessity; it cannot be left to the jury absent an evidentiary foundation.
- A general defense for beneficial surgical operations performed with reasonable care and skill does not override a specific criminal provision that sets detailed conditions for the legality of the procedure.
- An intentional termination of pregnancy by instrumental procedure falls within statutory language proscribing procuring a miscarriage.
- Statutory appellate authority may permit setting aside a jury acquittal and entering a conviction where the trial was affected by legal error, but the authority is to be exercised cautiously.

## Conclusion

The Supreme Court of Canada upheld the Criminal Code’s abortion restrictions, ruled that neither necessity nor the general surgical-operations defense excused an abortion performed outside the statutory scheme, and affirmed that an appellate court could replace a jury acquittal with a conviction when legal error tainted the acquittal.


Morgentaler v. The Queen (Morgentaler I), [1976] 1 S.C.R. 616 (Can. 1976)