TORONTO, June 2, 2014 ( – Mary Wagner’s lawyer, Dr. Charles Lugosi, isn’t giving up after Justice Fergus O’Donnell ruled just a few days ago that expert witnesses would not be allowed to testify about the humanity of the unborn at Wagner’s trial. While O’Donnell ruled that calling the witnesses would serve no useful purpose, Lugosi cited new case law to support Wagner’s request during a day-long hearing at the Ontario Court of Justice Friday.

Wagner is attempting to argue that she was acting under self-defence provisions of the Criminal Code to save the unborn from abortion when she entered the “Women’s Care Clinic” abortion site on Lawrence Avenue West in Toronto in August 2012. After entering the abortion facility she offered roses and counselling to abortion-bound women. She has pleaded not guilty to charges of mischief and failing to comply with probation orders and has remained in jail since that time, declining to accept bail conditions for reasons of conscience. 

O’Donnell to this point has also refused to mandate public funding of Wagner’s constitutional challenge against the current definition of a human being in the Criminal Code, as well as a defence request for records from the abortion centre. 


Lugosi told the court he was making new submissions as a follow-up to O’Donnell’s invitation to bring forth any matters that may have been missed earlier. 

Lugosi said previous Canadian jurisprudence has dealt with the definition of a “person,” but not that of “anyone,” as referred to in Section 37 of the Criminal Code. Even the famous Borowski court case only addressed the meaning of the word “person,” but there is no binding case law regarding the definition of “anyone;” therefore, the testimony of experts would be useful. 

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In addition, Lugosi said there is a common law defence of necessity in acting in the defence of others in danger and Wagner’s ability to offer full answer and defence is fundamental to the administration of justice. 

“We all want a fair trial and to discover the truth in the trial process,” he said. “How can we if we don’t know whether the fetus is a human being or not?” 

Lugosi pointed out that Wagner’s attack on Section 223 of the Criminal Code is “unprecedented.” The courts have never heard the kind of medical and scientific evidence into when human life begins that he intends to present through the expert witnesses, he added. 

O’Donnell interjected that the courts have been over the issue “backwards and forwards” over the years and wondered what has changed in scientific knowledge over the past 25 years. Lugosi responded that courts can only work with arguments as they are framed; the current challenge addresses the issue in a way that has not been done before. 

Lugosi asserted that if the right to life of a fetus were balanced against the right to kill him or her, the former is paramount: “Somebody’s right to kill stops at someone’s right to life … How can someone be given the right to kill arbitrarily and through the sheer exercise of will? … Why are we tolerating this in the case of children?” 

Citing another piece of case law, Lugosi said the law has to be permitted to evolve in order to meet new challenges. The balance must be placed in Wagner’s favor to proceed, as the issue in question is of national importance, as demonstrated by recent media coverage, he said. 

“The onus is on the Crown to prove its case beyond a reasonable doubt … there are complex arguments and novel submissions being made here … As we stand now, the defence is incomplete.”

In rebuttal, Crown attorney Tracey Vogel said that evidence cannot be called that is not relevant to a live issue at the trial, as to do so would be a waste of scarce judicial resources. The bulk of Canadian law has already found the fetus is not a human being, she said, therefore the courts can deny a defendant full answer and defence when it is appropriate to do so. Vogel said that the abortion issue is essentially settled in law and Wagner has no chance of success. 

Lugosi asked the court for an adjournment to consider a response to Vogel’s rebuttal. O’Donnell scheduled the next hearing for June 12 at 10 a.m. in Room 302 of the Ontario Court of Justice at 1000 Finch Avenue West in Toronto. 

As the hearing concluded, Lugosi asked for a variance on Wagner’s bail conditions, which stood at a $500 deposit and a promise to appear in court as scheduled. O’Donnell dismissed the application and so Wagner was placed back into custody and taken away to the Vanier Centre for Women in Milton as about 35 onlookers in the courtroom stood. 

In related news, a fundraising dinner for Wagner’s legal defence fund took place at Canada Christian College in Toronto Thursday evening. About 100 people raised several thousand dollars through ticket sales and donations, as the fund reached about $140,000. However, supporters of Wagner say more is needed, pointing out that the Borowski case, for example, is said to have cost in the area of $850,000 to $1 million. 

Attendees at the dinner heard from speakers including Lugosi, Linda Gibbons and Campaign Life Coalition National President Jim Hughes. 

Meanwhile, Gibbons has signalled her intention to run for the nomination of the Christian Heritage Party in the Toronto riding of Trinity-Spadina for the upcoming federal by-election there. If successful, she will be campaigning under the name “Linda Groce-Gibbons.”