TORONTO, June 28, 2013 ( – The judge hearing Mary Wagner’s trial on charges of mischief and failing to comply with probation orders has turned down her request for funding of a planned constitutional challenge to the Criminal Code’s denial of human status to the unborn. 

“All I know is that funding was denied in an e-mail from the judge, but he has not even finished writing his reasons,” said her counsel, Dr. Charles Lugosi. “He wanted to let counsel know at the earliest opportunity.” 

Wagner has been repeatedly arrested for peacefully entering abortion facilities and attempting to speak to abortion-bound women, offering them a rose and encouraging them to choose life for their babies. 


During a day-long hearing at the Ontario Court of Justice on Finch Avenue West last April 16, Mr. Justice Fergus O’Donnell heard arguments for and against Wagner’s request to have Lugosi funded so he could adequately present her case. 

In a factum filed with the court, Lugosi stated that Wagner’s charges were 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 contended that the charges were 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. 

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Proceeding fully on the complex case, and calling in all the necessary expert witnesses and so on, would have likely required hundreds of hours of work for Lugosi and an assistant. Lugosi contended the failure to fully fund the defense, while the Crown enjoys endless resort to public resources, was lop-sided, unfair and a violation of Wagner’s rights. 

Legal Aid Ontario refused funding beyond the most basic defense of the charges. O’Donnell, as trial judge, had the power to grant any remedies that would have ensured Wagner had a fair trial. Crown counsels had argued at the April 16 hearing that Wagner was “manufacturing” a defense to act as a guise for her political beliefs. 

No date has been set for the release of O’Donnell’s written reasons for his decision, but Lugosi said regardless, Wagner’s only real hope at this point is a public campaign to raise money for her case. “If people can raise $200,000 in less than a month for a video of (Toronto) Mayor (Rob) Ford smoking crack, I can’t see why Mary can’t raise $200,000 on the most important legal issues currently facing the Christian community.” 

“I would hope there are enough God-fearing people in Canada who are appalled that Parliament sees no limits on its own authority to pass whatever laws it wants,” he added. “Our Constitution talks about the supremacy of God … and the rule of law, which is based on natural justice … Parliaments cannot pass laws that include some human beings and exclude other human beings from the human family. 

“If it starts with the unborn, it will go to the disabled and elderly … This is the time to wake up, get aggressive and get active. Let’s see if people are prepared to sacrifice.” 

Wagner has declined bail for reasons of conscience and is currently in custody after she was arrested at the “Women’s Care Clinic” on Lawrence Avenue West on August 15, 2012. Her trial is scheduled to begin on September 30, but a hearing was to be held today to arrange scheduling of pretrial matters, including the status of her constitutional challenge. 

Meanwhile, fellow pro-life protester Linda Gibbons is due next in court on July 9 to deal with pretrial matters in her case after she was arrested outside the “Morgentaler Clinic” abortion site in Toronto on June 11. 

Her counsel, Daniel Santoro, is also appealing two previous sentences, including a decision from March 14 that saw Gibbons sentenced to time served plus one day for a similar demonstration outside the Morgentaler site on October 30, 2012. Santoro had argued that the injunction protecting the Morgentaler site did not apply to Gibbons (as she was not named in the injunction and did not consent to it) and that her peaceful conduct on that occasion did not constitute a breach of the injunction's measures.