Constitutional woes likely if changes proposed

Parental consent requirement called unconstitutional

Any attempt to introduce legislation forcing girls to receive parental consent before getting an abortion would likely create multiple constitutional issues, at least one of which would be “insurmountable,” internal provincial government documents show.

Two sources familiar with the documents — a three-page memorandum and covering email — said they were prepared after the Saskatchewan Party caucus discussed the idea of such legislation last year, and ultimately ended the conversation.

Postmedia News obtained the documents after three of the six candidates vying to replace Brad Wall expressed similar views in interviews published by Right Now, a group that campaigns for pro-life politicians with the aim of introducing anti-abortion legislation.

In the memo, Katherine Roy, a lawyer from the Ministry of Justice’s constitutional law branch, said legislation restricting abortion access for girls under 18 would likely violate one, and possibly two, sections of the Canadian Charter of Rights and Freedoms.

Those sections are No. 7, which guarantees the right to “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” and No. 15, which bans discrimination based on age and as other traits.

In the covering email, Mitch McAdam, the head of the ministry’s constitutional law branch said while the memo was prepared quickly and was not comprehensive, he agreed with Roy’s conclusion that age restrictions would be deemed unconstitutional.

“I have little doubt that the Supreme Court would hold that legislation requiring minor girls to get their parents’ consent before undergoing an abortion would violate the girl’s rights under Section 7,” McAdam said in the email.

The courts, McAdam wrote, have in recent years “taken a particularly expansive view” of the section, using it to strike down laws related to prostitution and assisted suicide. He said the Section No. 7 issue would likely prove “insurmountable.”

Sask. Party leadership candidate Ken Cheveldayoff told Right Now that he thinks parental consent should be required for any “major procedure” performed on a child under the age of 18. He subsequently told the Canadian Press that only women whose lives are endangered, and not sexual assault victims, should be allowed to have an abortion.

While he believes life begins at conception, victims of sexual assault have the right to choose an abortion, the Saskatoon Willowgrove MLA said in a subsequent statement. Cheveldayoff said he would not introduce anti-abortion legislation if elected to lead the party.

Leadership contender Scott Moe, who told Right Now an “ongoing discussion” about abortion issues is important, said in a statement issued Thursday that despite holding pro-life views he would continue the government’s practice of not introducing new legislation on the matter if he wins.

Leadership candidate Rob Clarke, meanwhile, told the Regina Leader-Post that he would consider invoking the notwithstanding clause — which allows the provinces to temporarily override the charter — if elected to lead the party.

The remaining three Sask. Party leadership candidates — Tina Beaudry-Mellor, Alanna Koch and Gord Wyant — have stated that they are pro-choice. The party is expected to choose its next leader at a convention in Saskatoon on Jan. 27.