## Facts

- After the federal Criminal Code abortion scheme was invalidated in earlier litigation, Nova Scotia adopted regulations aimed at preventing abortions outside hospitals and denying public insurance coverage for abortions performed outside hospitals.
- Nova Scotia replaced those regulations with the Medical Services Act (MSA) and a designation regulation that continued to prohibit certain medical services outside hospitals, including abortions, and linked compliance to insurance coverage.
- Dr. Henry Morgentaler opened a private clinic in Halifax and performed 14 abortions there.
- Morgentaler was charged with 14 counts under the MSA for performing abortions contrary to the statutory and regulatory scheme.
- The trial judge acquitted Morgentaler, holding the MSA and regulation ultra vires the province because their true character was criminal law.
- The Nova Scotia appellate court upheld the acquittal (with a dissent), and the Crown appealed to the Supreme Court of Canada.
- Morgentaler also advanced Charter-based arguments, but the Supreme Court resolved the appeal on division-of-powers grounds and did not decide Charter issues.

## Issues

1. Whether the Medical Services Act was ultra vires Nova Scotia because, in pith and substance, it was legislation in relation to criminal law within Parliament’s exclusive authority under s. 91(27) of the Constitution Act, 1867.
2. Whether the designation regulation was likewise ultra vires because it depended on an invalid criminal-law measure.

## Decision

- The Supreme Court of Canada unanimously dismissed the Crown’s appeal.
- The Court held that the MSA and designation regulation were ultra vires Nova Scotia because, in pith and substance, they constituted criminal law under s. 91(27).
- Because the impugned provisions were invalid, the charges against Morgentaler could not stand.
- The Court declined to rule on Charter questions or alternative federal heads of power.

## Legal Principles

- Division-of-powers classification requires identifying a law’s “matter” (its pith and substance) and assigning it to a constitutional head of power; courts consider both purpose and effects and avoid purely formal characterization.
- A statute is invalid for colourability when, although framed as falling within provincial jurisdiction (e.g., health regulation), its real object is an area of exclusive federal jurisdiction (e.g., criminal law).
- Provincial authority over health and hospitals does not permit the province to enact prohibitions with penal consequences whose dominant purpose is to suppress conduct as a public wrong.
- Duplication or partial reproduction of features of a federal criminal prohibition, combined with legislative context indicating a suppressive aim, supports characterization as criminal law rather than health regulation.
- When legislation is found ultra vires on federalism grounds, a court may dispose of the case without reaching Charter validity.

## Conclusion

The Court invalidated Nova Scotia’s scheme restricting abortions to hospitals and tying insurance coverage to compliance because its dominant purpose and effect were to prohibit and punish abortion services in a manner characteristic of criminal law, a matter reserved to Parliament under s. 91(27); the Court therefore did not address Charter claims.


R. v. Morgentaler, [1993] 3 S.C.R. 463 (Can. 1993)