Canada's Roe: the Canadian abortion decision and its implications for American constitutional law and theory.

Like the United Kingdom, Canada traditionally has been committed to the doctrine of parliamentary supremacy, which leaves little room for judicial protection of individual rights. In 1982, however, the Canadian Constitution, originally a product of the United Kingdom, was "patriated" to Canada. It was also amended to include a judicially-enforceable Charter of Rights and Freedoms. This amendment gave the Supreme Court of Canada a power of judicial review analogous to that of the Supreme Court of the United States. Nonetheless, one might have expected the Canadian Supreme Court to move cautiously, narrowly interpreting the Charter and giving considerable deference to the policy judgments of the federal Parliament and the provincial legislatures. Despite its institutional heritage of deference to the legislature, however, the Canadian Supreme Court has embraced an activist role in the protection of individual rights. It has ruled that it will not be bound by evidence of original intent, and it has invalidated numerous legislative and administrative actions found to violate Charter provisions. Perhaps most remarkably, the Court has endorsed a doctrine analogous to American substantive due process, breathing substantive content into the general language of Section 7 of the Charter, a provision that apparently was designed to provide purely procedural protection. Relying on Section 7, moreover, the Canadian Supreme Court has already decided the Canadian version of Roe v. Wade. In Morgentaler v. The Queen,t the Court invalidated a long-standing abortion statute and thereby granted constitutional protection to the abortion decisions of Canadian women. Morgentaler may be the most prominent example of judicial