TORONTO, May 14, 2014 ( – Whose God reigns supreme?

That was one of the questions raised by Crown attorney Tracey Vogel at the Ontario Court of Justice in Toronto on Tuesday as two days of hearings began into an application by pro-life activist Mary Wagner to constitutionally challenge the current definition of a human being in Canadian law as applying only to those fully born.

The hearings before Justice Fergus O’Donnell in a courtroom filled with spectators are being held within the context of Wagner’s trial on charges of mischief and failing to comply with probation orders, after she entered the “Women’s Care Clinic” abortion site on Lawrence Avenue West in Toronto in August 2012 and attempted to counsel abortion-bound women. She has pleaded not guilty and has been imprisoned since that time as she refuses to accede to bail conditions that stipulate she stay away from abortion sites.


Vogel posed her question at the hearing in response to a point made earlier by Wagner’s counsel, Dr. Charles Lugosi, that the preamble to the Canadian Constitution recognizes the supremacy of God. She downplayed the importance of the phrase and noted the Canadian Secular Alliance has identified Canadians recognize over 2,000 deities.

“We live in a secular society that tolerates religion,” she said. “It is not for the courts to role-play God and invoke divine principle.” Vogel suggested calling on the supremacy of God is “a red herring” – using an interpretive principle that has never been utilized in such a context. One higher court judge has called the supremacy of God a “dead letter,” she said.

Vogel observed there is a contradiction between recognizing the supremacy of God while, at the same time, acknowledging freedom of religion and conscience, as Canadian law does. “Whose God reigns supreme and in what way?” she asked again, then misquoted the biblical Book of Exodus 21, verse 22, in which she said the act of causing “mischief” to a fetus was punishable only by a fine. If the Bible truly recognized the fetus as being human, then death would be the punishment, as it is in other types of killing described in other verses, she suggested.

“The discourse would never end. … That’s why we don’t engage in religious and philosophical debate in a trial court.”

Earlier, Vogel assailed Wagner’s application as unable to succeed in fact, law, or principle because a Canadian court has never granted a fetus legal rights. The scientific evidence for the humanity of the fetus intended to be presented by the defence is not new, novel, or unbiased and is irrelevant to the legal definition of a human being, she said.

The text of the Canadian Charter of Rights and Freedoms gives no indication it intends to include a fetus as a human being, nor does it define who is a human being and who is entitled to rights, she argued. If it intended the unborn to have rights, “why would Parliament leave fetal rights in such an uncertain state?” she asked.

She also quoted one of her expert references as saying science cannot define whether a fetus is a person, despite what she called Lugosi’s “poetic and very emotional submissions.”

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To criminalize abortion would have very significant consequences for women and even leave them susceptible to activists such as Wagner who might assault, kidnap, and confine them, Vogel suggested, adding the defence position might be full of rhetoric, emotion and deeply held conviction, but it is not jurisprudence.

The defence, she continued, deliberately ignores Supreme Court decisions on abortion-related questions because there is no support for the defence position to be found there. She also said her office’s research has found the expert witnesses to be called by the defence are “connected” to “anti-abortion groups” or have been funded by groups with a political agenda.

To begin the hearing, Lugosi noted the court was engaged in considering the serious, important issue of the place of law in society and the critical question of when human life begins. As the law stands, with one class of human beings disenfranchised from humanity, no one is safe at any stage of existence. “This opens the floodgates. … Who’s next? … The old, disabled or anyone who’s unwanted.”

Lugosi recalled the trials of Nazi war criminals at Nuremberg, where judges, lawyers and law professors attempted to use the justification that the genocide they sanctioned was legal. They were still found guilty of war crimes because natural law is superior to positive law and limits the power of government. The definition of a human being is not a legal principle – human beings are human beings by nature, not government decree, he said.

But evidence is required to establish a statement of fact, said Lugosi; hence, the need for the testimony of expert witnesses, who would assist the court with dramatic new research into the beginning of human life. It is the defence position that the fetus has human rights by the very virtue of its being a human being.

“There is no constitutional right to abortion,” Lugosi continued. “A statute must conform to the Constitution … This is not a debate or soapbox. This is a legal argument.”

He said the implication is that Parliament is supreme in its ability to say who is and who is not a human being, but the rule of law means that society puts a limit on the power of Parliament when it oversteps its legitimate authority and creates a situation of human rights abuse.

In addition, there has been no direct challenge to the constitutionality of Section 223 of the Criminal Code, which defines a human being as existing only after birth. “You need evidence, not just linguistics,” Lugosi told the judge. “Mary Wagner must be permitted to present evidence, not just textual arguments.”

He recalled that even Supreme Court Chief Justice Beverley McLachlin, in a 1995 speech in New Zealand, identified “unwritten principles” that go to the core of constitutional government. Thus, the Constitution is a living tree capable of growth and the inalienable right to life of human beings, born and unborn, is fundamental to the rule of law.

“We have now departed from the rule of law,” said Lugosi. “There is no constraint against the power of the state. … Courts are disregarding the supremacy of God. Will the rule of law be swept aside as well? … We don’t want to live in a country like that.” He pointed as an example to the situation in Rwanda in the mid-1990s, when some human beings were considered “cockroaches” or “rodents” and were exterminated.

“Having something be legal doesn’t make it moral,” Lugosi said. “Does legal abortion conform to the rule of law or not? … Mary Wagner says it does not.”

Abortion, Lugosi concluded, is a crime against humanity, discrimination on the basis of age, an inequality and an unconstitutional extermination of human beings.

The hearing continues Wednesday at 9 a.m. at the Ontario Court of Justice, 1000 Finch Avenue West, near Dufferin, in Toronto, with the continuation of Vogel’s rebuttal and then a response from Lugosi.