Abortion, Judicial Activism and Constitutional Crossroads
University of New Brunswick Law Journal, Vol. 53, pp. 157-83, 2004
29 Pages Posted: 12 Nov 2007 Last revised: 30 Apr 2015
Date Written: 2004
In 1984, Bruce A. Ackerman and Robert E. Charney wrote that the Canadian Charter of Rights and Freedoms situated Canada "at the constitutional crossroads", confronting the choice between parliamentary and popular sovereignty. The authors questioned Canada's commitment to the separation of powers. However the Supreme Court of Canada's abortion jurisprudence suggests that the issue is not whether Canada subscribes to the separation of powers. Rather this jurisprudence challenges the claim that Canada is "at the constitutional crossroads" identified by Ackerman and Charney.
When a majority of the judges relied on the Charter right to security of the person to decriminalize abortion in the 1988 Morgentaler case, the Court's decision was consistent with popular sovereignty as Ackerman and Charney depict it. However, many feminist legal scholars contend that the Charter right to sex equality would have provided better protection for women. This scholarship challenges the notion of popular sovereignty on which Ackerman and Charney rely and suggests that we need a new concept to distinguish sovereignty as feminists understand it.
Given its roots in the equality principle, I argue this new feminist concept should be known as "substantive sovereignty." Informed by the equality principle, substantive sovereignty differs not only from parliamentary sovereignty or deference but also from popular sovereignty or judicial activism. Assuming the existence of the controversy - parliamentary versus popular sovereignty - that Ackerman and Charney described, it was resolved by adopting the Charter. In contrast, feminist legal scholars who challenge the Supreme Court of Canada's abortion jurisprudence proffer a more compelling identification of our contemporary constitutional controversy. Canada is, in short, "at the constitutional crossroads" between popular versus substantive sovereignty.
Keywords: Abortion, constitutional law, Canada, Charter
Suggested Citation: Suggested Citation