TORONTO, Ontario, May 15, 2014 ( – Dr. Charles Lugosi, Mary Wagner’s lawyer, made an impassioned plea for an Ontario court to listen to expert witnesses on the humanity of the unborn as two days of hearings into whether Wagner has standing to constitutionally challenge the current definition of a human being in Canadian law concluded on Wednesday.

Justice Fergus O’Donnell will consider whether Wagner’s argument has merit and proceed to allow pro-life American academics and medical experts to testify in coming weeks. The application is being vehemently opposed by Crown attorney Tracey Vogel.

The hearings at the Ontario Court of Justice in Toronto were held within Wagner’s continuing trial on charges of mischief and breach of probation for entering an abortion facility in Toronto and seeking to counsel women to keep their babies. 


Wagner’s lawyer: Scientific fact, not law, that fetus is a human being

“It is beyond the power of government to define who is and who is not a human being,” Lugosi argued during the hearing. “The Crown says human being is a legal definition. I don’t agree,” he said, arguing that such an argument “opens the door” to abuses like genocide, or otherwise dehumanizing whole sections of humanity. 

Lugosi responded to Vogel’s arguments that no Canadian court has ever granted a fetus human rights, saying that none of the previous jurisprudence actually addressed the question of when a human being begins. “There is no legal precedence to guide this … it is a finding of fact, not law, to say a fetus is a human being.” 

Although the courts have said that, for the purposes of law, a fetus is not a person, they have not said it is not a human being. In addition, the courts in one key piece of case law cited by Vogel did not consider medical science, but only constitutional questions.

“This is a novel, important question,” Lugosi continued. “Why rely on outdated medical knowledge? … It has changed … (There is) data that is no longer valid.” Lugosi urged the court to “let the process unfold” in light of the most up-to-date medical science.   

Lugosi pointed out that when Canadian arch-abortionist Henry Morgentaler was allowed by the government to use civil disobedience to challenge Canada’s abortion laws in the 1980s when he was charged with committing illegal abortions. “The Crown must be even-handed and allow both sides of the issue,” he said. “Henry Morgentaler used civil disobedience as a test case. Mary Wagner is no different from him.”

Lugosi also disputed Vogel’s claim that the fetuses Wagner was attempting to save at an abortion site by counselling pregnant women were not under her protection. “If a child is helpless, any stranger can put a child under his protection. Who else is going to put the child under protection? Mary Wagner is the last clear chance … It is shocking to say she should not be allowed to put someone under her protection.” 

Crown lawyer: ‘A fetus does not have legal rights’

In her remarks, Vogel rebutted Lugosi’s arguments from the previous day, dismissing his allegations that Canada is any way a “totalitarian, authoritarian dictatorship … that is not rooted in reality.” Rather, she said, our liberal and democratic society is characterized by “pluralism and diversity.” 

Wagner has put herself “above the law,” including the Constitution and the Charter of Rights, which say nothing about a fetus being a person, she continued. 

“She asks judges to ignore rules of law … (and) decades of jurisprudence … that a fetus does not have legal rights,” she said. “She is asking a judge to impose her views that a fetus is a human being.” 

“The defence is without merit and unavailable” she declared. “No fetus has ever been granted legal rights  … This is not a royal commission on the meaning of life.” 

Vogel pointed out that if Wagner should succeed, anyone could go to an abortion clinic to try to counsel the women to reject abortion. 

She concluded that granting a fetus legal rights would “undermine the rights of women” and lead to stigmatization, criminalization and health consequences. 

Judge reserves decision: next hearing May 30

Judge O’Donnell reserved judgement on the application, with a decision to come by the time the court sits next on May 30 in Room 307 at the Ontario Court of Justice at 1000 Finch Avenue West in Toronto. Dates have also been set aside on June 12 and 13 should the testimony from defence expert witnesses proceed. The Crown would then be entitled to call its own expert witnesses at a later date. 

As the court was about to adjourn, attention turned once again to whether Wagner would accept bail to free herself pending the conclusion of the trial. After lengthy, private deliberations with Lugosi, Wagner decided to await the judge’s ruling on standing before deciding whether to accept bail, which now only includes the stipulation that she attend court as required. 

Leeda Crawford, a close friend of Mary who was present at the hearing told LifeSiteNews that Mary's father, Frank Wagner who came from BC for the hearing felt that his daughter was being true to her conscience in postponing her freedom.  “He trusts her vigilance in prayer and seeking God's Will is directing her actions,” said Crawford.  “It appeared Mary was challenging the judge on the importance of remaining vigilant and faithful to one's conviction when standing up for those who are unable to stand up for themselves.”

Other spectators during the two days were a Catholic archbishop, fellow pro-life activist Linda Gibbons, various friends, and a film crew from Poland, which is producing a documentary on the case and has been collecting information and interviewing numerous people. 

Money continues to be raised for Wagner’s legal defence fund and a dinner in benefit of that is being held on May 29 at the Canada Christian College at 50 Gervais Dr. in Toronto. Details on both can be found here.