No, neither Dickson CJ (Lamer J concurring), nor Wilson J found that abortion was a basic right. They found that restricting abortion was an infringement of women’s security of the person, on the basis of personal autonomy. That was the first step in the analysis under s. 7 of the Charter. However, the s. 7 analysis does not end there. The next step, required by the wording of s. 7, is to consider whether the infringement is consistent with the principles of fundamental justice.
Dickson and Wilson both held that the restrictions in the Criminal Code were not consistent with the principles of fundamental justice and therefore were inoperative.
The other two judges in the majority (Beetz J, Estey J concurring), agreed that there was a breach of security of the person, but on a narrower basis, namely that the Criminal Code provisions interfered with women’s right to life and health. They also concluded that the infringement was not consistent with the principles of fundamental justice.
This is why the Mulroney government believed that they could re-introduce restrictions on abortion, by laws that addressed the principles of fundamental justice. Both of those bills failed to pass, so we don’t know if they would have been upheld.
The Supreme Court has never held that abortion is itself a right. There have certainly been social changes in the past 36 years, and one can make predictions about what the Court might do if the federal government reintroduced abortion legislation, but it is not correct to say that the Supreme Court has recognized a basic right to an abortion.
I’ve noticed that European constituions in the civil law tradition tend to have this sort of implementation clauses, to draw the link between the guarantee of a constitutional and the statutory provisions for the implementation of the right.
My understanding is that the recognition of statutory power for implementation must be interpreted in light of the substantive guarantee. The implementation clause cannot be interpreted as granting the legislature the power to completely undercut the substantive right, only to implement the exercise of that right.
Different drafting style from rights documents in the common law tradition.
I don’t want to go too far down this path which is really a digression from the main topic, and IANAL, but I think there’s room for interpretation here and we’re somewhat talking past each other. Justice Wilson was particularly emphatic when referencing a pregnant woman’s “right to security of the person as well as her right to liberty” and even more explicitly, when considering whether the state ever has a valid interest in protecting the fetus at some late stage of pregnancy, that this has to be weighed against “the fundamental right of the woman to decide whether or not to carry the foetus to term”.
It’s certainly true that the Mulroney government tried (but failed) to introduce revised abortion laws. I think you’d have to agree that times have changed greatly, and that today no party would touch the issue with a ten-foot pole, and that even if they somehow succeeded in passing a new law, it would almost certainly be struck down by the Supreme Court in light of modern-day thinking and rulings like Carter v Canada (2015) as mentioned in my previous post.
I agree we don’t want to distract from the main point of this thread, but this discussion is relevant to the point in the OP that France is the first country to explicitly recognize the right to an abortion in their constitution.
The SCC has not held that there is a constitutional right in Canada. Yes, both Wilson and Dickson recognized that abortion is protected under the first stage of s. 7, but the point I am making is that is not the end of the analysis under s.7.
An infringement of one of the three rights under s. 7 is only a Charter breach if it is not consistent with the principles of fundamental justice. All three reasons for the majority held that the particular Criminal Code restriction in issue failed that requirement, and therefore that section was unconstitutional.
None of them said that there was a free-standing right to an abortion, equivalent to what France has done with its recent constitutional amendment.
Enfin, le caractère personnel de la liberté reconnue, que le Conseil constitutionnel rattache à la liberté personnelle, rend nécessaire d’en désigner le bénéficiaire, c’est-à-dire la femme. Il résulte de l’objet même de cette liberté et conformément à l’intention du Gouvernement qu’elle doit être entendue comme bénéficiant à toute personne ayant débuté une grossesse, sans considération tenant à l’état civil, l’âge, la nationalité et la situation au regard du séjour en France.
Meaning that it must be understood benefitting any person being pregnant, with no consideration of “état civil”, which include legal sex.