"Bad law" argument in Morgentaler v. The Queen

The issues raised by the Crown on appeal in Morgentaler v. The Queen from the acquittal of the accused were rendered moot when the Supreme Court of Canada declared the abortion statute (section 251 of the Criminal Code) to be unconstitutional. There was no need for the Court to discuss either the issue of the use of the "defence of necessity" or defence counsel's "bad law" argument. Nevertheless, Chief Justice Dickson found the "bad law" argument of defence counsel, Morris Manning, Q.C., "so troubling," he felt "compelled to comment" on it. Mr. Manning argued that, although the jury was to take its instructions in the law from the judge, it had a right not to apply the law in the case to the facts because the abortion statute was "bad law." In his decision, Chief Justice Dickson reiterated that it is the duty of the judge to instruct the jury in the law and the function of the jury to apply the facts to the law, and that Mr. Manning was wrong to tell the jury otherwise. Among other things, the Chief Justice used a "racist jury" example to demonstrate Mr. Manning's error. The author argues in this comment that the Chief Justice's example was ill-conceived and inapposite, and concludes that the jury and Mr. Manning should be commended for helping to rid Canada of an oppressive abortion law.