January 1975 • Vancouver Sun

Abortion Law “a Farce”

Lawyer details twists and turns


Montreal criminal lawyer Claude-Armand Sheppard has spent five years before the courts arguing every aspect of abortion law. In that time he has come to the conclusion that the law on abortion is “a farce.”

“Parliament has recognized that abortions are needed. Then it makes them impossible to get in many regions,” he said in an interview.

“And the law subjects doctors to life imprisonment for making them possible.”

And even worse than the law is the attitude of Justice Minister Otto Lang, said Sheppard.

Since 1970, Sheppard has been the lawyer for Dr. Henry Morgentaler, a Montreal physician who has openly admitted to performing thousands of abortions since 1968.

Morgentaler was acquitted on an abortion charge by a Quebec jury in 1973. The Quebec Court of Appeal subsequently overturned the decision, and substituted a verdict of guilty. The case was appealed before the Supreme Court of Canada. A decision has not yet been handed down.

Sheppard said he hopes the decision will result in liberalized interpretation of the abortion law, if not a complete change.

“One of the main issues in the appeal before the Supreme Court is whether the Court of Appeal can substitute its own decision for that of a jury, and convict a man who the jury has acquitted,” said Sheppard.

“While jury decisions are quashed all the time, this was the first time in Canadian legal history that the Appeal Court usurped the jury’s function. Usually, a new trial is ordered when a jury verdict is quashed.”

In the past five years before the courts, said Sheppard, almost every aspect of criminal procedure and fundamental principles of criminal law were argued.

“I think it’s going to be the text book case in Canadian law. Any law student who reads the record will have a complete course in Canadian law.

‘We literally argued the issues of life and death; the right to terminate pregnancy; when does life begin; even what is the duty of a doctor to his patient; whether a doctor has the right to impose his views on a patient; whether he has the right to refuse what a patient demands.

“We argued that the doctor hasn’t the right to impose his views on a patient, but is obliged to help her live the way she wants to live.

“We argued at length about what constitutes health — postulating that social and economic factors must be taken into consideration because health is not merely physical integrity or the absence of mental illness.”

The cost of all that verbiage is somewhere around $150,000; $50,000 in out-of-pocket expenses for witness fees, documents, transcripts, court reporters, and appeal books.

“Legal fees, over the last five years, are approximately $100,100. But it hasn’t all been paid yet. And it won’t be the only case in which we have to wait years to be paid.

“It isn’t difficult for a law firm to be a bit of a Robin Hood. We can survive on the rich cases.”

The reason the case was so costly, Sheppard pointed out, was that Morgentaler instructed that it be fought like a text book case.

“He wanted it to result in a change in the law. Otherwise, it could have been a lot easier — he could have made a lot of “deals.”

Sheppard, a member of the federal advisory council on the Status of Women, criticized Justice Minister Otto Lang’s “interference” with the interpretation of Canadian abortion legislation.

Lang is apparently unable to accept a reasonable definition of what constitutes health, he said.

“Judging from statements Lang has made publicly, he has a Victorian concept of health: You’re ill if you’re insane or if you have cancer.

“But if you’re depressed or unable to cope with the circumstances of life, that doesn’t count.

“According to Lang, if a young girl is raped, and pregnancy results, and there’s nothing physically wrong with her, she isn’t entitled to an abortion.

“But if you can prove that the girl is going to suffer some terrible physical disease, or go crackers, she’s entitled to an abortion. If carrying the pregnancy to full term is merely going to destroy her life, that isn’t sufficient reason to abort.”

Sheppard said he believes Lang is “totally insensitive to the real needs of women.”

“He just doesn’t know what it’s all about. I think that, deep down, he is very uneasy about the demands of women for independence.

“His insensitivity shows in the man’s patronizing, colonial attitude. It’s hard to label him, but when I see him I think of an insensitive mandarin, more at home with grain elevators than with women.”

(Justice Minister Lang is also responsible for the Canadian Wheat Board.)

Sheppard said he cannot recall any cabinet minister in Canadian history who has managed to antagonize such an important segment of the population.

If Lang were at all sensitive to the needs of people, he would have a more balanced view of the abortion issue, said Sheppard.

“Lang criticizes hospitals that in his view are too lenient with abortions, but he has not said a word about hospitals that are too insensitive to the needs of women to offer abortions.

“If he were not biased, he would have a balanced view — that some hospitals go overboard and others do nothing to help women.”

But Sheppard believes the weight of public opinion can bring changes in a democracy.

“Canada now has the most backward abortion law in the Western world, with the exceptions of Italy, Spain and Portugal.

“We want the law changed, to permit women to have legal and medically safe abortions.

“But while Lang fiddles over this burning issue, thousands of women are subjected to the anguish of an unwanted pregnancy.

“With Lang in office, we are nowhere near the question of medically safe abortions. I wish that adequate medical attention were the issue in Canada.

“The current problem is that no legal abortion facilities are available to many Canadian women — so we force them into illegal procedures.”