TORONTO, February 5, 2014 ( – What was good for Henry Morgentaler should be good for pro-life prisoner of conscience Mary Wagner.

That was defense counsel Charles Lugosi’s argument before Justice Fergus O’Donnell as Wagner’s long-running trial on charges of mischief and failing to comply with probation orders continued in the Ontario Court of Justice Tuesday afternoon.

At issue at this hearing was whether Wagner has standing to argue she was justified in her action of entering the “Women’s Care Clinic” abortion centre on Lawrence Avenue West in Toronto on August 12, 2012 because of a self-defense provision in the Criminal Code. Wagner contends references in this provision to “anyone” include the unborn.


Lugosi pointed out Wagner’s case is a mirror image of Henry Morgentaler’s moves to break the law and then challenge the legality of Canada’s then-in-force laws restricting abortion. However, whereas Morgentaler was given free rein to challenge the laws constitutionally, the Crown in Wagner’s case vociferously opposed the motion.

“Her entire defense is without merit,” said Crown Attorney Tracey Vogel. “This ‘committee of one’ should not be permitted to hijack the court process … scouring the landscape for some kind of legal foothold.”

As the hearing began, Lugosi revealed he has two expert witnesses ready to testify when future hearings consider the human status of the unborn – a doctor who is also a professor in the area of obstetrics and gynecology and a PhD scientist. They will testify regardless of O’Donnell’s eventual ruling on the constitutional argument.

Lugosi began his submissions by pointing out Morgentaler was permitted standing to make a constitutional argument before the courts even though he had no direct interest in abortion, since as a man he could not get pregnant. But it was determined his argument was of sufficient public interest regardless and that it should be allowed to go forward.

The same should hold true for Wagner, said Lugosi, since the unborn cannot speak for themselves. Further, the courts have not definitively interpreted whether Section 37, the self-defense provision of the Criminal Code, extends to all human beings, born and unborn.

Lugosi added that, even though Section 223 of the Criminal Code, the “born alive” section, states an unborn child is not a person, that does not mean it is not a human being, much as slaves were once considered human beings but had no rights as persons.

“If it’s a human being one minute after it’s born, it’s also a human being one minute before it’s born. … Fetuses are a class excluded from the human family,” he said. “I’m asking for Mary’s day in court. … This is not a philosophical exercise or a moral lecture, but rather the application of law at its heart. … Is there not a more fundamental question than who is and who is not a member of the human family?”

He observed that it was not until the French Revolution that Jews were considered persons under law and similar person-less status was conferred on slaves. Meanwhile, Nazis on trial at Nuremberg used the defense that they were simply following the law. “Governments use and abuse authority under rule by law – not rule of law – to say certain people are not human,” he said.

It is a disgrace that in modern society, a class of human beings continues to be excluded from enjoying legal protection, said Lugosi. “It is unfair to allow Henry Morgentaler his day in court and not Mary Wagner,” he reiterated, appealing to O’Donnell, as a “gatekeeper,” to open a gate not only for Wagner, but for the unborn.

In her rebuttal, Vogel argued that Wagner cannot succeed “in fact, law or principle” in her venture. “Courts have declined to grant personhood to fetuses,” she argued, adding there is not one case in any Canadian legal jurisdiction wherein a fetus was granted personhood status.

Click “like” if you are PRO-LIFE!

Granting Wagner’s request would “bust open” access for “anti-abortion activists” to “invade private property and criminalize abortion,” she continued. “This would grant standing to any legal contortionist with deeply held convictions.” The self-defense provision to which Wagner is appealing does not apply in her context, she said.

Vogel charged that Wagner was using the courts to further her political, religious and philosophical motivations and, if at all, she should have launched a constitutional argument when she was presented with the terms of her probations.

“She has other ways of saving fetuses, but chooses not to,” such as persuading and praying “to her heart’s content” outside restricted areas, said Vogel. “She can picket, promote private member’s bills” and so on.

Wagner’s challenge ignores the “tradition” in Canadian law of refusing personhood for the fetus, the Crown attorney said. This was most made clear in cases such as Demers, Borowski and Winnipeg vs. Child Family Services. The Supreme Court has said through it all that the only rights to be recognized in any aspect of law – tort, civil, criminal or common – are those of a born person.

Changes are up to Parliament to make, Vogel said, observing that the institution has made a “conscious” decision not to grant the fetus personhood. “The fetus and the father don’t have rights; only the mother had rights,” she said. “The fetus and mother have always been treated as one.”

“The courts have said: ‘We’ve thought about this, we’ve considered this. We are not going to grant the fetus rights,’” Vogel concluded.

In his response, Lugosi emphasized again that Wagner is doing nothing different from what Henry Morgentaler did. “Has the Supreme Court dealt with it? No. … In Demers, the court did not consider properly made arguments … (and) the Charter (of Rights) was not considered in the Tremblay case. That was a totally civil matter concerning Quebec law.”

The courts have explicitly pointed out their rulings have not been conclusive, said Lugosi, adding that if standing is denied in Wagner’s case, the merits of her defense will never be examined.

O’Donnell put off his decision on the constitutional standing argument to February 28 at 2 p.m. in Room 308 of the Ontario Court of Justice at 1000 Finch Avenue West in Toronto. Wagner will remain in custody until that time, as she has since her arrest on August 12, 2012, since she declines to sign bail conditions that stipulate she stay away from abortion sites.

The public gallery was filled for Tuesday’s hearing and Wagner’s supporters are hoping for a similarly large turnout on February 28. Among those watching was Linda Gibbons, who is awaiting hearings on appeals regarding three previous convictions she was given for demonstrating outside Toronto abortion sites in recent years.

Funds are still being raised to defray the considerable legal costs of Wagner’s constitutional challenge. For information on how to contribute, click here.