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Judge turns down application to have experts testify to humanity of unborn at Mary Wagner trial

Tony Gosgnach
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 TORONTO, May 22, 2014 (LifeSiteNews.com) – The judge in Mary Wagner’s current trial has turned down a defence application to have expert witnesses testify to the humanity of the unborn.

Dr. Charles Lugosi, Wagner’s lawyer, had made the application during two days of hearings before Justice Fergus O’Donnell at the Ontario Court of Justice on May 13 and 14. His intention was to have two expert witnesses – a medical doctor and professor, as well as a scientist and professor – from the U.S testify to support the position that Wagner was acting in self-defence of human beings when she entered the “Women’s Care Clinic” abortion site in Toronto in August 2012.

She was charged with mischief and failing to comply with probation and has been jailed since that time as she declines to agree to bail conditions that stipulate she stay away from abortion sites.

The legal action was part of Wagner’s move to constitutionally challenge the current definition of a human being in Section 223 of the Criminal Code as applying only to those fully born. The application was opposed by Crown attorney Tracey Vogel.

"For reasons to follow, I have decided that no purpose would be served by having an evidentiary hearing on Ms. Wagner’s Charter application and that, in the current state of the law, it has no possibility of success," the judge wrote in his decision.

However, Lugosi has responded that the expert witnesses still need to be heard.

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“That is not the end of the need for the expert evidence,” he said in a written reply. “Even if the expert evidence is disallowed on the Charter application, it is still required for the trial (not the Charter voir dire) to make full answer and defence. Section 37 (the self-defence provision of the Criminal Code) still needs to be interpreted as to meaning of ‘anyone’ and, if ‘anyone’ does not include all unborn living human beings, then mistake of fact applies. All this was overlooked.”

He added the defence will argue in the alternative that Section 223 does not apply generally throughout the entire Criminal Code and is inapplicable to Section 37. “In other words, Section 37 may be interpreted to include both born and unborn human beings and is not governed by the definition of human being in Section 223.”

Whatever scenario develops, Lugosi wrote, “the expert evidence is admissible, relevant and material. The use of the expert evidence is very helpful to the court … (and) is not barred by (the) ruling prohibiting the constitutional challenge to Section 223. The defence case is still very much alive and cannot go to submissions without making full answer and defence.”

Even if self-defence arguments are not available to Wagner, Lugosi concluded, she is still entitled to rely upon Section 8, Subsection 3 of the Criminal Code, which preserves the common-law defences of necessity and the defence of other human beings, without qualifications or restrictions.

In earlier arguments, Lugosi noted that, in contrast to the current case, arch-abortionist Henry Morgentaler encountered no opposition from the Crown when he moved to challenge Canada’s previously applicable laws against abortion. The Crown should have been even-handed and allowed Wagner to put forth her argument, he said, adding that abortion is a crime against humanity, discrimination on the basis of age, an inequality and an unconstitutional extermination of human beings.

O’Donnell had previously turned down a request for public funding of Wagner’s challenge as not being in the public interest.

Wagner has the right to appeal the constitutional challenge decision and, in the meantime, the trial will have its next hearing on May 30 in Room 307 at the Ontario Court of Justice at 1000 Finch Avenue West in Toronto.



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