After the Liberals released their OIC on riffles/guns, what would stop another party from releasing an OIC on abortion? I say this because the law that was made was struck down at least partially and what we do now doesn't follow what the law intended.
Because the law as currently written expressly provides for the classification and regulation of firearms by Orders in Council. That's how firearms regulations worked already. There was already a statutory provision, court tested, that makes that a regulatory mechanism. I don't think there's a lot of understanding, generally, about how statute and regulations interact. Things can be criminalized by regulation, yes, BUT only where there is an enabling statute, passed by legislature, that makes it an offense to breach regulations passed by OIC. This approach allows for better nimbleness and flexibility when things change. A couple other real life examples- changes to impaired driving law in the past few years created a regulatory power to define blood concentrations of certain drugs as was done for a long time already with alcohol. While for alcohol it's a nice easy 'over .08', because we're dealing with a single known substance, there are hundreds of drugs out there and they're constantly changing, along with evolving science. Creating a statutory provision to allow regulatory definition of blood drug content makes it easier to deal with each one as the science settles, rather than having to pass a bill each time some guy creates a new mix of crap in their kitchen and gets high off of it. Another off the wall example - it's an offense to violate Canadian sanctions against the Syrian government. The Special Economic Measures Act (statute) creates an authority for an OIC to define prohibited (sanctioned) activity, but the statute still creates the offense. This let's the government tighten or loosen sanctions through simple regulation rather than having to go to Parliament each time. So that's the sort of system that's in play with guns, and other things as well. Note that I'm not defending the wisdom of the approach on that specific issue of guns- just describing the legal mechanics.
Provision of abortion is a health matter, and so, in the sense that it's a regulated medical practice, is regulated by the provinces. The
criminalization of abortion, as was previously the case, was an exercise of the constitutional authority vested in the federal government to pass criminal law. The practice was criminalized through the mechanism of requiring there to be a certificate issued by a 'Therapeutic abortion committee', which WAS a provincially regulated entity. The Supreme Court ruled that criminalizing abortion in the absence of such a certificate was a violation of a woman's life, liberty, and security of the person under the Charter.
The Morgentaler ruling made it very clear:
State interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitutes a breach of security of the person. Section 251 clearly interferes with a woman's physical and bodily integrity. Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and thus an infringement of security of the person.
This breach was not saved by Section 1 of the Charter. In effect, the government does not get to criminalize abortion. Any regulatory roundabout that attempted to achieve the same ends not in an aboveboard manner would be subject to legal challenge and would fail.
:max_bytes(150000):strip_icc()/design-for-the-electoral-poll-with-traditional-american-parties-men-616091246-081326e88d5a4f9b8240a372a5447ce5.jpg)
cultmtl.com
