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Mary Wagner outside the Superior Court of Ontario in Toronto during her appeal hearing.John Bulsza

TORONTO, December 23, 2016 (LifeSiteNews) — An Ontario justice has rejected pro-life prisoner of conscience Mary Wagner’s appeal of her 2014 criminal convictions that resulted from her peaceful attempts to save unborn children from abortion in 2012.

Justice Tamarin Dunnet of the Ontario Superior Court dismissed the appeal December 22, just three weeks after Wagner’s lawyer, Dr. Charles Lugosi, argued in a four-day hearing that his client had been denied a fair trial two years earlier.

Lugosi argued trial judge Fergus O’Donnell erred in law by ignoring Wagner’s grounds of defence, and showed bias by denying her Charter challenge to the current law that recognizes the unborn child as a human being only after it has fully emerged in a living state from its mother.

He asked the Court to acquit Wagner of the charges based on her original defence, and to declare the unborn child a human being and abortion culpable homicide.

But in a 34-page ruling, Dunnet upheld O’Donnell’s original ruling and dismissed Lugosi’s appeal as without merit.

O’Donnell convicted Wagner in June 2014 on charges of mischief and breaching a probation order, following her August 15, 2012 arrest at an abortion facility in northwest Toronto. Because she refused to sign bail conditions requiring her to stay away from abortion facilities, Wagner remained in jail for 22 months until the conclusion of her trial.

Lugosi argued on appeal that O’Donnell erred in diverting the issue to the personhood of the unborn child, which he asserted was irrelevant.

Rather, Wagner defended her actions under Section 37 of the Criminal Code, repealed in 2013, which allows justifiable force to protect “any one” under one’s protection from assault, and that “any one” includes the unborn child.

“It’s the last chance for a human being in the womb to be protected. … They’re my brothers and sisters and they’re under my protection,” Wagner stated in previous testimony.

Wagner’s contention that “any one” of Section 37 included the child in the womb, however, required that Section 223 of the Criminal Code be struck down as unconstitutional.

Section 223 states that a child becomes a human being only when it has completely proceeded from the body of its mother in a living state.

In refusing to hear the constitutional challenge against Section 223 and not allowing an evidentiary hearing to establish the humanity of the unborn child, O’Donnell demonstrated bias and denied Wagner a fair trial, Lugosi argued.

“Any legislation that opens the floodgates to the unlimited killing of an entire class of innocent and defenceless human beings must be inherently suspect and subjected to exacting judicial scrutiny,” far more than “the superficial cursory approach taken by the trial judge,” he noted in his factum.

Section 223 violates the Charter’s Section 7 right to life and Section 15 equality rights, as well as being in violation of international law and inconsistent with the rule of law, argued Lugosi.

“If an unborn child is a human being there is no legal principle in common law that permits abortion,” which would be culpable homicide under common law, he asserted.

Appeal justice throws out every argument for life

But Dunnet upheld O’Donnell’s ruling in every instance.

She concluded that “any one” in Section 37 “means the same thing as ‘person’,” contending the Criminal Code treats the terms as synonymous.

She concurred with O’Donnell’s ruling that Section 37 did apply in this case, as Wagner did not use force, other than possible forcible speech, when she would entreat the women in the waiting room not to have an abortion, and that the unborn children were not under her protection.

“Moreover, abortion is a lawful medical procedure, not an assault,” wrote Dunnet.

She upheld the trial judge’s rejection of Wagner’s defence of necessity, writing that Wagner’s attendance at the abortion facility on August 15, 2012 was “pre-planned” and that she “deliberately contravened her probation order because she disagreed with it.”

As for the Charter challenge to Section 223, O’Donnell ruled that Wagner’s contention the Charter protects the unborn child “is so hemmed” by legal precedents that “without a dramatic turnabout on the part of the Supreme Court of Canada she could not possibly prevail.”

Dunnet concurred.

“The case law from the Supreme Court and the provincial courts reviewed by the trial judge leaves no room for a determination that an unborn child has the right to life under s. 7 or equality rights under s. 15 of the Charter,” she wrote.

John Thorp Jr., professor of medicine, and Dr. Maureen Condic, professor of human embryology, were willing to testify that “an unborn child is an unique living human being from the moment of conception, and that abortion is an act of violence that kills that unborn human being,” Lugosi noted in his factum.

O’Donnell denied an evidentiary hearing on the Charter application for reasons that Dunnet upheld.

She agreed “a trial judge has the power to exclude proposed evidence that is irrelevant, immaterial or otherwise admissible,” and concurred with O’Donnell that the proposed evidence “falls far, far short of, ‘fundamentally [shifting] the parameters of the debate’.”

As did O’Donnell, Dunnet rejected Lugosi’s argument that “the status of a foetus was a new legal issue in this case,” and quoted Dehler v Ottawa Civic (1979) which states: “accepting as fact the conclusion the plaintiff seeks to establish by testimony at trial, that is, that a foetus is a human being from conception, the legal result obtained remains the same. The foetus is not recognized in law as a person in the full legal sense.”

Abortion is ‘crime against humanity,’ court heard

Lugosi reiterated during the appeal that abortion “offends the values of the Charter. It is a crime against humanity and an affront to the dignity and worth of every human being.”

“The unborn child commits no crime, has no trial, no legal rights, no money and no lawyer, and without giving consent or receiving sedation from pain, is dismembered and summarily executed in the womb, from which there is no possible retreat or escape.”

He also warned that “those who permit or participate in abortion cannot seek refuge in Section 223 of the Code to escape responsibility from Article 8 of the Nuremburg Statutes, which denies a defence based on following orders or laws of government that legitimize crimes against humanity.”

During the appeal, which ended December 1, Lugosi read out the “will say” evidence of the two experts introduced at trial, which described the conception and development of the child in the womb.

That alone makes the effort worthwhile, according to Linda Gibbons, who has spent 11 years in jail for witnessing to life outside Toronto abortion facilities.

“The important thing is that the plight and the plea of the unborn child is on the record,” she told LifeSiteNews, and added praise for Lugosi’s case.

“We not only did our best, but as far as a lawyer, we had the best, someone who is absolutely a clarion voice for unborn children, God bless him.”

The Courts want to depict any peaceful intervention to save unborn children and their mothers from the violence of abortion as simply disrupting a business operation, pointed out Gibbons.

“That’s like being asked to write about Auschwitz and being told not to mention the Jews,” she said. “Mary wants the focus to be on the babies. Not that she was in place A, doing a certain activity, trespassing. She wants to speak for the unborn lives being trespassed on.”

No decision has been made at this time regarding a further appeal.

Meanwhile, Wagner, who has spent 4 1/2 years in jail for her pro-life efforts, remains in jail following her arrest December 12 at a west Toronto abortion facility.

Wagner, who is representing herself, is charged with breaching a probation order and mischief, and is scheduled to appear in court to receive disclosures of evidence against her on Thursday, December 29, at Old City Hall Courthouse, Room 111 at 9 a.m.

Read Justice Dunnet's full reasons for dismissing Wagner's appeal here.