Morgentaler is acquitted of abortion charge
The Gazette, Nov. 14, 1973
Dr. Henry Morgentaler yesterday was acquitted of performing an illegal abortion by a Queen’s Bench jury which deliberated for 10 hours before reaching its verdict.
Crown Prosecutor Louis G. Robichaud, QC, said an appeal against the verdict would be launched as soon as possible. It would be based on the contention that the Criminal Code section on which the defence was based was not legally admissible.
The 50-year-old bearded physician admitted in the witness box that he performed the abortion on Aug. 25 on a 26-year-old unmarried graduate student who was in the sixth or seventh week of pregnancy.
In a move that is without legal precedent, defence counsel Claude Armand Sheppard invoked a section of the Criminal Code which deals with surgical operations to justify the doctor’s actions.
Article 45 of the Code states: “Everyone is protected from criminal responsibility for performing a surgical operation upon any person for the benefit of that person if:
“he operation is performed with reasonable care and skill.
“it is reasonable to per- form the operation having regard to the state of the health of the person at the time the operation is performed and to all the circumstances of the case.”
Robichaud objected to the introduction of Article 45 into the trial, describing its application to the abortion question as a “judicial absurdity.”
However Mr. Justice James Hugessen ruled the defence admissible and in the 2½-hour charge to the jury Monday told them they had to decide whether it was reasonable medically speaking for Dr. Morgentaler to perform the abortion to the degree of justifying breaking of the law.
There was a brief outburst of handclapping and gasps of delight from the largely feminine audience when the verdict was announced.
As soon as the judge left the bench, Mongentaler’s friends and supporters surged down the aisles to congratulate the beaming doctor, many of the women embracing him warmly.
Dr. Morgentaler still faces several other illegal abortion trials, but these have been postponed by Justice Hugessen until March at the earliest pending appeals.