TORONTO, ON, October 8, 2013 ( — Defence, Crown and abortion centre attorneys engaged in a three-way, day-long legal wrangle as the long-running trial of Mary Wagner resumed at the Ontario Court of Justice on Finch Avenue West in Toronto Tuesday.

Defence counsel Dr. Charles Lugosi had previously submitted an application for third-party records from the “Women's Care Clinic” abortion centre at 960 Lawrence Avenue West, at which Wagner was arrested while attempting to counsel women on August 15, 2012. She was charged with mischief and three counts of failing to comply with probation orders and has remained in custody since that time, as she declines to agree to bail conditions that stipulate she is to stay away from abortion sites.

Lugosi and Wagner have made it clear that they will be using the current charges as a test case to challenge Canada's current abortion-related laws. To that end, Lugosi said he needed the abortion centre's records in order to interview patients at the site that day and obtain unbiased input from parties not employed by the centre as to what actually transpired when Wagner attended.

The Crown has said it intends to call abortion centre staff, police officers and possibly a probation officer as witnesses, but no patients. The 911 caller from the abortion site that day, a Khatija Akoojee, cannot be found. Video surveillance footage of the incident was reportedly destroyed. Saira Markovic is listed as the sole shareholder of the “S. Markovic Medicine Professional Corporation,” which runs the abortion centre.

Lugosi said he wants a private investigator employed by him to speak to the patients and ascertain whether the rose and literature they received from Wagner was offensive in any way and to establish that Wagner was peaceful in her demeanour. The patients, he said, could give the best evidence of what happened.

“Mary's defence is self-defence (on behalf of the unborn) and the means used is speech,” Lugosi said. He added any concerns about patient privacy can be addressed by court orders and there should be no special privileges just because the matter concerns abortion.

Assistant Crown attorney Tracey Vogel submitted that she had difficulty with the terminology used by Lugosi. An argument of self-defence can only be used in reference to a human being, which a fetus is not, she said.

Eli Mogil, with the McCarthy Tetrault legal group, spoke on behalf of the abortion centre. He said what happened in the abortion centre's waiting room was not relevant to the defence. He then argued on the point of privacy of the patients, suggesting that abortion is not “a vanilla exercise,” but rather “special, particularly unique … and not like going to the bank.”

“They don't tell the parents of teenage patients,” he said of the Women's Care Clinic staff, who are cognizant of how “hyper-sensitive, politically charged and emotional” is the abortion issue.

“You are ordering someone to say, 'I had an abortion' … That's okay for knee surgery. It's entirely different in the abortion context.” The privacy surrounding abortion is so extreme, he concluded, that the Ontario government won't even release non-personal, aggregate information on abortion in the province.

Following a lunch-time adjournment, Vogel reiterated that the self-defence argument is not applicable as the fetus is not a human being and even if he were, he is not under the protection of Wagner.

“Privacy rights should not be sacrificed to a manufactured defence … and Miss Wagner's political and moral beliefs,” she said, adding that abortion is “settled Canadian law.” And whether she was polite and respectful matters not to her defence. Wagner fashions herself as a committee of one that believes it's okay to obstruct and breach valid court orders, Vogel charged.

In his retort, Lugosi asked why abortion centre records should be treated differently from any other records. Medical records do yield to an overriding public interest, he said. “We shouldn't raise any sacred cows and say, 'This is untouchable.'”

After a lengthy discussion about scheduling, Wagner was remanded to December 6, 11 and 12 at the courthouse at 1000 Finch Avenue West for the continuation of her trial. Follow-up hearings in subsequent months will examine other aspects of the case, including constitutional arguments and Wagner's standing to make them.

Given another opportunity to accept bail conditions and be freed by Justice Fergus O'Donnell, Wagner declined and was escorted back into the court's holding cells. By the time the trial eventually concludes, it may well be two full years in custody for Wagner. A fund has been established to help defray Wagner's considerable legal expenses.

Watching the day's proceedings intently from the public gallery was Linda Gibbons, who was released on September 29 after serving her latest prison sentence. She was originaly scheduled to be released this week, however a calculation error by her sentencing judge, Feroza Bhabha, meant she got out sooner than expected.

Gibbons said her latest time in prison was fruitful, with a jailed Somali mother deciding to give birth to her child and another prisoner receiving regular one-to-one spiritual teaching. A great moment was the visit in August of Cardinal Oswald Gracias of Bombay, India to celebrate a Catholic mass at the Vanier Centre for Women. Gibbons said Wagner herself leads almost a dozen other prisoners in daily spiritual exercises.

An unhappy moment was the passing of Gibbons's daughter last month at the age of 45. Gibbons was allowed a time of private visitation, but only while shackled and under the escort of two guards. On a brighter note, Gibbons was able on her release to join friend Mary Burnie for some time in Ontario's cottage country while enjoying pristine early fall weather.

Gibbons sees Wagner's current case as important, since issues of the humanity of the fetus are finally coming to the forefront in a court of law. She plans to throw her support behind Wagner's effort in coming months by engaging in public speaking. She also hopes to visit B.C. in November in time for her mother's birthday and will be awaiting the start of appeal hearings on three of her previous criminal convictions in the coming months.

“We're not going to let (abortion) become a backburner issue,” she vowed.