TORONTO — As promised, Mary Wagner has, through her counsel Dr. Charles Lugosi, filed a formal notice of appeal on numerous points regarding her recent, almost two-year-long court case that ended on June 12.
Justice Fergus O’Donnell of the Ontario Court of Justice rejected every application made by the defence – including for access to abortion center records, public funding, standing for a constitutional challenge and for expert witnesses to be heard – before he found Wagner guilty and sentenced her to five months in jail on a charge of mischief and four months on four counts of failing to comply with probation orders.
He further levied two years of probation, with terms that she stay at least 100 metres away from any abortion site. However, because Wagner had spent a greater time in jail than the sentence, she was freed immediately. She had been arrested at the “Women’s Care Clinic” abortion site on Lawrence Avenue West in Toronto on August 15, 2012 after attempting to speak to abortion-bound women there. She then spent the duration of the trial in prison for refusing to sign bail conditions requiring her to stay away from abortion sites.
Wagner is using the matter as a test case to challenge the current definition of a human being in Canadian law – that is, that a human being is legally recognized as such only after he or she has fully emerged from the birth canal in a breathing state.
Wagner’s notice states the appeal is regarding:
- Her conviction and sentence on a single count of mischief (interference with property),
- Her conviction and sentence on four counts of breach of probation,
- The order denying public funding,
- The order denying the disclosure of third-party records,
- The order denying the admission of evidence from experts on the applicant’s constitutional challenge concerning the constitutional validity of Section 223 of the Criminal Code,
- The order denying the admission of evidence from experts concerning the construction of Section 37 of the Criminal Code,
- The probation order denying Wagner her constitutional rights to freedom of speech, freedom of expression, freedom of conscience and freedom of religion on all public sidewalks and public areas within 100 metres of places where abortions are committed,
- And each conviction and sentence and all orders and rulings made by O’Donnell.
In the notice of appeal, Lugosi cites numerous points on which O’Donnell erred:
- He denied Wagner her constitutional right to make full answer and defence.
- He denied Wagner her right to rely on Section 37 of the Criminal Code, which permits “everyone” to come to the third-party defence and rescue of any human being (in this case, the preborn) facing imminent assault.
- He decided the factual basis of Wagner’s constitutional arguments was a waste of the court’s time and that no purpose would have been served by having an evidentiary hearing on her Charter application because, in the current state of Canadian law, it had no possibility of success.
- He misapplied case law and prejudged the case, “giving rise to a reasonable apprehension of bias and impeding the legal evolution of the law to adapt to new circumstances, knowledge and changed societal values and morals.”
- He accepted the Crown’s submission that it is beyond the jurisdiction of the courts to question the jurisdiction of Parliament legally to define “human being” in any manner Parliament sees fit.
- He ruled Section 223 of the Criminal Code is not beyond the powers of Section 52 of the Constitution Act, 1982.
- He ruled Section 223 of the Criminal Code does not violate the Preamble to, as well as Sections 7, 11(d), 15 and 26, of the Charter of Rights and Freedoms.
- He denied Wagner standing to raise a constitutional challenge to the validity of Section 223 of the Criminal Code.
- He ruled that Section 223 of the Criminal Code applied generally throughout the entire Criminal Code and used it to deny unborn human beings the benefit of equal protection as born human beings under Section 37 of the Criminal Code.
- He denied the production and disclosure of third-party records in the possession of the “Women’s Care Clinic” abortion site, although the records were required to prove Wagner was justified in using reasonable force in the form of oral and written words to try to persuade pregnant mothers from killing their unborn children by abortion.
- He denied Wagner the defence of Section 37 of the Criminal Code by ruling unborn children did not come within the scope of human beings eligible to be protected by a third party.
- He ruled Wagner did not come within the scope of Section 37 because she was found to be non-violent (in that she did not use physical force).
- He ruled the unborn children Wagner was trying to rescue were not under her protection.
- He denied Wagner the common-law defences of necessity and the rescue of third parties in need of protection.
- He denied Wagner public funding to make full answer and defence for a constitutional test case of great public importance and national significance.
- He imposed an unconstitutional sentence upon Wagner by, in effect, imposing an injunction as a condition of probation, contrary to her constitutional rights of free speech, freedom of expression, freedom of conscience and freedom of religion.
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Among the orders Lugosi is seeking are:
- That an appeal be allowed against conviction on all counts and that a verdict of acquittal be entered on all counts,
- That Section 223 of the Criminal Code be found unconstitutional and contrary to Section 52 of the Constitution Act, 1982, as well as the unwritten constitution of Canada,
- That the sentence be declared unconstitutional and contrary to Section 52 of the Constitution Act, 1982, and the unwritten constitution of Canada or that a new trial be conducted, with Wagner permitted to make full answer and defence, be given standing to make a constitutional attack on Section 223 of the Criminal Code, with the admission of expert witnesses,
- That the Women’s Care Clinic abortion site be made to produce third-party records pertaining to patients seen on August 15, 2012 (when Wagner entered the site),
- And that there be public funding for two defence counsels at any retrial and for any appeal related to the case.
No date has yet been established for a decision on the appeal or hearings.
A defence fund for Wagner’s case is still raising money. Details on how to contribute to it can be found here.