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by Peter Sonski

The early summer announcement that Canadian abortion practitioner Dr. Henry Morgentaler was to receive his country’s highest civilian honor, the Order of Canada, has not only brought shock and dismay to many citizens, but also a legal challenge seeking to examine the appointment process.

Order of Canada member Frank Chauvin, a retired Windsor, Ontario, police detective, has filed a federal lawsuit seeking a judicial review of the Morgentaler appointment process. 75-year-old Chauvin, a pro-life Catholic, has pioneered and supported many humanitarian efforts in Canada and abroad. For his efforts, he was awarded the Order of Canada in 1987.

Women protest Morgentaler's nomination to the Order of Canada

Established as a Sovereign order under the Canadian monarchy in 1967, the Order of Canada award is the pinnacle of a series of national honors. Under the motto of desiderantes melorium patriam (“They desire a better country”), the Order of Canada recognizes citizens from all backgrounds for beneficial contributions to society. Nearly 5,500 Canadians have been appointed to the Order of Canada.

It is administered by an Advisory Council, which receives nominations and makes appointments annually.

Morgentaler’s appointment was announced April 10, 2008. He was publicly recognized, with other appointees during an Oct. 11 ceremony in Quebec City.

“I was very disappointed when I learned about (Dr. Morgentaler’s) appointment,” said Chauvin. “And I became extremely upset when I saw him in a television interview saying that he deserved the award and it was about time that he received it.”

Unlike other Order of Canada members such as Cardinal Jean Turcotte, archbishop of Montreal, who have renounced their honors and returned their medals in protest over Morgentaler’s appointment, Chauvin ultimately elected to express his opposition through the legal system.

He is represented by Windsor attorney Gerard Charette, who says Chauvin initially intended to relinquish his Order of Canada insignia. Since such action was unprecedented, Chauvin had written a letter to the Order of Canada’s Advisory Council, asking formal instructions for doing so.

“I wanted to return the award with dignity,” Chauvin said, “so I wrote a letter to the Governor General asking how (I should do so). I still haven’t received a response.”

About this time, Charette contacted Chauvin to suggest a legal course of action.

With Chauvin’s assent, the lawyer petitioned unsuccessfully to have the appointment process proceedings made public under the country’s Access to Information Act. Due to the Order of Canada’s constitution, the confidentiality of the Advisory Council’s actions enjoy a royal prerogative that are not subject to Access to Information inquiries.

Charette then suggested Chauvin sue to force a judicial review of the Advisory Council’s minutes and procedures. Such action, he suggested, may uncover council negligence through a violation of “rules of natural justice, its own procedures, or other errors,” potentially casting doubt over the legitimacy of Morgentaler’s appointment.

Toronto attorney Philip Horgan, who is assisting in the case, indicated that the review will shed light on the council’s deliberations and the manner in which the nomination was handled. He said that published reports suggest a “variety of oddities” in the process.

Horgan, who is also president of the Catholic Civil Rights League, claims that the Advisory Council’s precedent was understood to have been consensus or unanimity over a candidate’s nomination for the award. However, Horgan said, prominent media outlets indicate that such was not the case in the Morgentaler appointment.

 What’s more, according to Horgan, there is speculation that the council’s chairwoman, Supreme Court Chief Justice Beverley McLachlin, “drove the process” of Morgentaler’s nomination.

Though McLachlin has publicly stated that she did not cast a vote in the decision, Horgan suggested a judicial review could determine whether her executive authority was of influence.

“There needs to be some transparency,” he said.

Fueling further speculation concerning special treatment for Morgantaler, the abortionist was granted a favorable ruling this summer in order to become a litigant in a New Brunswick court case seeking public funding of abortions in private clinics there. 

“The chain of events could lead one to speculate whether there was a cause-and-effect relationship between the two actions,” said Charette.

When asked why Chauvin is the sole plaintiff, Horgan indicated the lawsuit is unprecedented.

“Frank is challenging fairly high-placed members of Canadian society,” Horgan said. When aggrieved by such an action, “most people don’t turn to an action of ‘how do I sue the federal government.’”

Rather, Horgan said, “They are more inclined to quietly but nobly return their insignia,” to express their view that “Morgentaler is not my idea of the Order of Canada.”

He said that the case was little known in Canada.

 “A motion to review the workings of the Advisory Council is not page-one, -two or -three news,” Horgan said, though acknowledging Chauvin has received some support for his action.

“This appointment is so divisive, so upsetting,” Horgan said, adding that in nominating Morgentaler, the Advisory Council has potentially acted in a manner that has “undermined the principal bulwark of the Order (of Canada) … and has ignored previous precedents and norms.”

The Order of Canada should unite citizens in their support and respect for the appointees, Horgan said, but there is “no more divisive figure” than Morgentaler.

The case, which was filed July 31, had a brief hearing and “skirmish” Oct. 2, according to Horgan. The next court date is Dec. 2, although the government has filed a motion to dismiss the case. The attorneys expect a costly and potentially lengthy process.