From Wikipedia:
In 1988, the Supreme Court of Canada in the Morgentaler decision declared this entire section to be of no force or effect because it was held to violate section 7 of the Canadian Charter of Rights and Freedoms.
Section 7 states that: “Everyone has the right to life, liberty, and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
The majority of the Court held that “the structure of the system regulating access to therapeutic abortions is manifestly unfair. It contains so many potential barriers to its own operation that the [exception] it creates will in many circumstances be practically unavailable to women who would prima facie qualify”. As such,
the provision was held to violate the principles of fundamental justice and was struck down, leaving Canada with a legislative vacuum to this day.
The court did not consider the question of whether the unborn were included in the “everyone” who have the right to life. The court was to hear MPP Joe Borowski later that week with that very question as the central issue, but the case was rendered moot by the decision in Morgentaler which struck down the provisions that were to be challenged.
The court has never considered the issue. Early attempts to fill the legislative vacuum failed politically, and no government has since dared to touch the issue. However, in a subsequent court decision (R. v. Sullivan [1991] 1 SCR 489), the court confirmed that a fetus is not a person until it is born and fully outside the mother's body.
Strictly speaking, the court found it unnecessary to consider whether the substance of section 7 implies a right to abortion, but instead made its decision on narrow and merely procedural grounds. The practical result is that it is still open to Parliament to impose some restrictions on abortion within the present jurisprudence and without the use of the Notwithstanding clause. However, such restrictions would surely be met with vehement opposition, and the Court could very well explicitly read-in a right to abortion into the Charter in a future decision. On the other hand, a future court could echo the dissent of La Forest and McIntyre JJ or go further: “The proposition that women enjoy a constitutional right to have an abortion is devoid of support in the language of s. 7 of the Charter or any other section.”
The end result, then, is that there is no Criminal regulation of abortion in Canada. <link>
From the National Post:
The political debate on abortion, largely dormant in Canada, is being revived because of a bill that would make it a criminal offence for someone to attack a woman with the intent of killing her unborn child.
Bill C-484, which will receive second reading next week, is designed to cover what its proponents say is a gap in the Criminal Code: taking the life of a fetus against the will of the mother.
"My bill recognizes that the unborn child has value in law and recognizes that it is not acceptable in our society for someone to attack a pregnant woman with the intent of taking that child's life," said Ken Epp, a Conservative Member of Parliament from Edmonton, who describes himself as pro-life.
The bill -- called the "Unborn Victims of Crime Act" -- specifically mentions that abortion is excluded, as well as "any act or omission by the mother of the child."
Thirty-seven U.S. states have similar laws. For example, Scott Peterson, who murdered his pregnant wife, Laci, was convicted on two separate charges and was given a separate prison sentence for taking the life of their unborn baby.
But opponents of the bill insist it has no other purpose "than to create a wedge" to recriminalize or put restrictions on abortions in Canada, said Joyce Arthur of the Abortion Rights Coalition of Canada, which has been running a campaign to stop Bill C-484. She said the bill would effectively give a legal status to the fetus and that could open the door to restricting access to abortions. <link>
