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TORONTO, April 17, 2013 (LifeSiteNews.com) – The province of Ontario has spent untold millions of taxpayer dollars subsidizing the abortion industry in various ways for many years, as well as vigorously prosecuting and jailing peaceful pro-life demonstrators. Yet, cost suddenly became an issue for agents of the state when Mary Wagner appeared in a Toronto courtroom to seek public funding of her legal attempt to constitutionally challenge the Criminal Code’s denial of human status to the unborn. 

Wagner faces, and is currently in custody on, a charge of mischief and three counts of failing to comply with probation orders after she was arrested at the “Women’s Care Clinic” on Lawrence Avenue West last August 15. She has remained imprisoned since then, as she has declined to agree to bail conditions that include the stipulation she stay away from abortion sites pending trial, which is scheduled to begin on September 30. 

During a day-long hearing at the Ontario Court of Justice on Finch Avenue West Tuesday, Mr. Justice Fergus O’Donnell heard arguments for and against Wagner’s request to have Brantford, Ont. lawyer Dr. Charles Lugosi funded so he can adequately present her case. 

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In a factum filed with the court, Lugosi stated Wagner’s charges are to serve as a test case to see if her actions were protected under Section 37 of the Criminal Code, which justifies the prevention of an assault upon another human being. He also contends that the charges are an improper exercise of Crown discretion, an abuse of process and violations of her rights to freedom of expression, conscience and religion as guaranteed by the Charter of Rights and Freedoms.

The prosecution of Wagner, wrote Lugosi, attempts “to criminalize what, at most, constitutes a civil law dispute that is not within the jurisdiction of the federal criminal law power.” In addition, he said, the courts need to determine whether Section 37 covers all human beings or only those already born. To do this, the defence intends to argue that Section 223 of the Criminal Code, which denies the legal status of human being to human beings prior to birth, is a legal fiction that is unconstitutional. Scientific and medical facts must govern when a human being is created, he said. 

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Lugosi has already spent 150-200 hours pro bono (free) in preparing Wagner’s case. Proceeding fully on the complex case, and calling in all the necessary expert witnesses and so on may require hundreds of hours more work for him and an assistant, which cannot continue to be done pro bono. Lugosi contends the failure to fully fund the defence, while the Crown has endless resort to public resources, would be lop-sided, unfair and a violation of Wagner’s rights. To date, Legal Aid Ontario has refused funding beyond the most basic defence of the charges. O’Donnell, as trial judge, does have the power to grant any remedies that ensure Wagner has a fair trial.

In an affidavit filed with the court, Wagner stated she does not believe her actions on August 15 were criminal, as she respected the right of women not to speak to her. In addition, she said she believes “that a human being is created at the moment of conception. It is my belief that Section 37 applies to all human beings, without discrimination as to age.” Wagner also said Section 223’s contention that an unborn human being is not a human being until it is born alive “is wrong as a matter of biological fact … It is common sense from the beginning of human history that babies that are born are human beings before and after the time of birth. It is my belief that anyone who denies that born human beings are human beings before birth, ought to have the burden to disprove the humanity of the unborn baby.”

In her recollection of events last August 15, Wagner said she was pulled by the arms toward the doors by an abortion site employee. When she protested that it was an assault, the employee replied, “I don’t care and you can charge me.” The employee, by then joined by another, threatened her with physical harm.

After being dragged out into the hallway, the door opened to reveal another woman who yelled “Psycho” at Wagner and then several times told her to “Go f— yourself.” Later, the previous employee returned to again threaten Wagner with physical harm.

In court, Lugosi questioned why the abortion site’s surveillance video of the incident was erased and why the names or testimonies of the clients Wagner spoke to were unavailable. He then said Parliament’s position that a human being is considered a human being one day, but not the next, opens the door to “a horror story” and observed that if “choice” were truly the governing principle concerning abortion, Wagner should have been provided with an office at the abortion site, rather than arrested.

“This is a nationally significant issue,” he added, noting that the question of when human life begins has never been addressed in Canada. Parliament has no jurisdiction to remove unborn human beings from the family of human beings, he said.

Lugosi faced counterarguments from three parties – representatives of Legal Aid Ontario, the Ministry of the Attorney-General and the Crown. 

For the Crown, Fatema Dada said the defence did not meet the “threshold” for public funding and did not demonstrate that Lugosi, in particular, needed to act as Wagner’s counsel. Tracey Vogel, for the Ministry of the Attorney-General, dismissed Wagner’s position as “a self-generated political argument” for which she was seeking public funds: “Hers is a manufactured defence that acts as a guise for her political beliefs.”

Wagner, said Vogel, should not be permitted to “hijack” the criminal court process in such a way. She continued that the Supreme Court cannot overrule its own decisions and to do so would undermine the Charter of Rights and the rule of law. The issue of abortion, she said in citing case law, is settled and Wagner has no rights over “fetuses.” “She is free to pursue a multitude of other avenues to promote her beliefs,” Vogel concluded.

O’Donnell reserved judgement to a future date and, before adjournment, offered Wagner a last chance to accept bail and be free pending her trial. Wagner replied she could not agree to the bail conditions as proposed and so was handcuffed and led back into the court’s jail cells as a group of her supporters watching in the courtroom stood in respect.