R. v. Wagner

Court File and Parties

Court File No.: Toronto

Date: 2015-02-12

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Mary Wagner

Before: Justice Fergus O'Donnell

Reasons For Judgment At Trial

Counsel:

Ms. Tracy Vogel for the Crown

Mr. Charles Lugosi for the defendant, Mary Wagner

Judgment

Fergus O'Donnell, J.:

Overview

1Mary Wagner stood charged with breach of probation and with mischief interfering with private property, all arising out of her attendance at a Toronto abortion clinic, the allegation being that she had sneaked into the locked clinic and sought to intercede with various clinic patients by offering them roses and pamphlets in an effort to have them reconsider their interest in having an abortion. This all allegedly happened while Ms. Wagner was bound by two probation orders, each of which required her to keep the peace and be of good behaviour and one of which more specifically prohibited her from being on the premises of any abortion provider in Ontario and from communicating with any person at an abortion facility in Ontario. Ms. Wagner believes that abortion involves the termination of human life and is the equivalent of murder. Indeed, I expect Ms. Wagner would leave the words "the equivalent of" out of that last sentence.

2As it turned out, unlike most trials, this trial was hardly, if at all, about whether the Crown could prove beyond a reasonable doubt that Ms. Wagner had done the acts alleged, but rather about whether or not Ms. Wagner was justified in doing what she admitted doing when she testified. As I noted above, it is the view of Ms. Wagner and her many supporters that a foetus has the same status and same right to protection as any of the rest of us and that since the patients of the abortion clinic were presumably there to terminate the lives of their foetuses, she was entitled to intervene as she did in order to save those lives. Indeed, Ms. Wagner would say she was duty-bound rather than "entitled" to act as she did.

3In the course of what turned out to be a long and protracted trial we ended up meandering through a variety of issues and historical way-points including what exactly Ms. Wagner did at the clinic (which, as I have noted, was pretty much a side-show compared to the other issues), whether Ms. Wagner should have access to the clinic records concerning the patients, the Criminal Code definition of "human being", the legal status of the unborn in Canada, the Ten Commandments, the history of abortion proscription through the ages, tort law, the Civil Code of Quebec, the distinction between the rule of law and rule by law, the law of "self defence of others" (two versions, given a change in the Criminal Code after Ms. Wagner's visit to the clinic but before her trial), Ms. Wagner's standing to bring a constitutional challenge, a trial court's power to decline to hear viva voce evidence on a Charter issue, a forest of Supreme Court of Canada decisions, Franz Kafka's classic novel, The Trial, a biology lesson that might cause a judge to reconsider the wisdom of having bailed from science classes after grade 10, Dred Scott, one of the most notorious decisions in the history of the United States Supreme Court, and the Nuremberg Trials. I may not deal with every one of those issues in these reasons, but the list gives some flavour of the trial and the argument. While the proceedings were marked at times by some palpable exasperation between the parties, any such exasperation was greatly exceeded by enduring civility manifested in dealing with a time-consuming and emotion-laden set of issues.

4Ms. Wagner was in custody for the entirety of the proceedings. While at the outset her detention may have been brought about by factors external to her, ultimately, given the drastically watered-down bail she was offered and which she persistently rejected, her long detention was very much the product of her obstinacy or her devotion. Which characterization is more apt, fortunately, is not one of the issues I have to determine. The depth and sincerity of her beliefs, her selfless commitment to those beliefs and the quiet dignity she manifested throughout the proceedings cannot, in any event, be gainsaid.

5Insofar as Ms. Wagner was in custody (for almost two years), I delivered my judgment the day that the argument was concluded. I found Ms. Wagner guilty of all of the charges and imposed sentence that day. These are my reasons.

The Evidence of the Alleged Offences

6I have said that the question of precisely what Ms. Wagner did at the clinic was largely a sideshow in these proceedings. The bigger questions included whether her conduct was justified by the law of self-defence or necessity, which in turn engaged the contentious issue of whether or not a foetus is a human being. It is Ms. Wagner's contention, and she is not alone in this, that a foetus is a human being and that it acquires that status at the moment of conception. In keeping with the fact that many things were not in dispute, there was no issue that Ms. Wagner attended at the clinic on the day in question, at a time when she was bound by two probation orders prohibiting any such attendance. Although we danced around the head of a pin on this issue to a certain extent, it was agreed that, if a foetus is a human being, then whatever actions were taken by the clinic to abort the foetuses whose mothers attended the clinic, that conduct would be assaultive in nature (to say the least) vis a vis the foetuses, assaultive conduct being necessary to trigger the law of self-defence (assuming that Ms. Wagner had standing to raise the issue of self-defence of others, which, along with the status of the foetus in law was a bone of contention between the parties). It was an admitted fact that the patients who were at the clinic did terminate their pregnancies at the clinic.

7On 15 August, 2012 Ms. Wagner was bound by two probation orders, one imposed by Justice Bassel on 13 September, 2011 and the other imposed by Justice Clements on 21 March, 2012. Those orders each required her to keep the peace and be of good behaviour and Justice Clements's order prohibited Ms. Wagner from being on the premises of any abortion provider in Ontario and, separately, from communicating with any person in such premises. On 15 August, 2012 Ms. Wagner gained entry to the Women's Care Clinic, an abortion clinic in Toronto and allegedly communicated with patients in the waiting room and corridor and disrupted the work of the clinic thereby. I heard details of what happened in the clinic from:

(a) The medical director of the clinic, Dr. Sarai Markovic;

(b) Two of the receptionists, June and April;

(c) One of the nurses, Khatija;

(d) One of the arresting officers, Constable Richard Mau;

(e) Ms. Wagner.

8Jane, the receptionist, testified that she worked behind the Plexiglas that separates the reception area from the smaller, outer waiting room. Early on 15 August, 2012 a co-worker told her to go out to the waiting room, where she found Ms. Wagner crouched beside a client and her companion, holding a rose and softly asking the client to change her mind about her appointment. There were other clients in the waiting room, along with their support people. The client appeared very uncomfortable and was crying and her companion put his arm around her. Jane told Ms. Wagner repeatedly to leave, but she did not. Ms. Wagner asked Jane if she worked there and then told her she should get another job.

9Jane kept asking Ms. Wagner to leave and opened the corridor door, but she did not leave. The nurse-manager, Khatija, then came out, told Ms. Wagner the clinic was private property and asked Ms. Wagner to leave, but she refused. Eventually, Jane and Khatija pulled Ms. Wagner out of the clinic, Jane using her hands on Ms. Wagner's arm. Ms. Wagner leaned back to resist their efforts. Jane did not recall Khatija threatening physical harm to Ms. Wagner.

10Khatija, the nurse, testified that she was taking a telephone call when she saw Ms. Wagner in the outer waiting room, with roses and pamphlets, making contact with patients. She told Jane to go out and deal with it while she was on the phone call. She could see Jane approach Ms. Wagner and hear parts of the conversation. Ms. Wagner kept trying to give out pamphlets and flowers and even tried to get into the second waiting room, where about six patients and their partners or companions were waiting behind a glass partition. She tried to talk through the Plexiglas and held up a pamphlet against the glass. She was talking about Jesus and about killing babies. Ms. Wagner's voice was medium to loud, but calm, "like someone giving a sermon". After she finished the phone call, Khatija herself went to the outer waiting room and told Ms. Wagner that this was private property, she was not allowed there, she was not allowed to drop off her "paraphernalia" there and that she had to leave. Khatija said that, as an emergency nurse, her voice would have been quite stern in addressing Ms. Wagner. Ms. Wagner was "pretty resistant and obstinate. She doesn't want to move." Khatija took the pamphlets from the outer waiting room and threw them in the corridor. When Ms. Wagner still refused to move, Khatija told the other receptionist, April, to call 911. Around the same time they were trying to direct patients from the outer waiting room to the inner waiting room and to direct incoming patients to another door. At one point, Khatija took over the 911 call. When Ms. Wagner failed to leave after several requests, they started backing her towards the door. Khatija told Jane to open the door and grabbed Ms. Wagner's shoulder. They got her into the corridor.

11In the corridor, Ms. Wagner set up her pamphlets and Jesus icons by the clinic door, but then saw that the staff were letting patients into the clinic by its second door, which was closer to the elevator, so she moved over there. Khatija stayed out there with Ms. Wagner, with April, the other receptionist coming and going from the corridor with patients.

12In her testimony April said she saw Ms. Wagner after she had gained entry to the outer waiting room and told Ms. Wagner through the Plexiglas multiple times that she should leave. Ms. Wagner did not respond. She kneeled in front of two clients, putting her hand on theirs and asking them to reconsider, while offering them pamphlets and roses. The clients were obviously upset, cried and looked sad. April called the police and notified Khatija that Ms. Wagner was there. She saw Khatija go to the outer waiting room and repeatedly ask Ms. Wagner to leave. Ms. Wagner said she had a right to voice her opinion and tried to get in the larger waiting room after all the patients had been transferred in there. April described how, for as long as Ms. Wagner was there, most of the activities of the clinic were at a standstill.

13Once Ms. Wagner had been removed to the corridor, April went out there to assist clients arriving to the clinic. Ms. Wagner told April that she was murdering children and should get another job. While Ms. Wagner was pacing and praying in the corridor, a woman came out from another office and asked Ms. Wagner to protest outside (the building) because her presence was disrupting their patient traffic. Eventually, April went downstairs to escort the police up. When she returned with the police, Ms. Wagner was telling a patient leaving the clinic to ask for forgiveness; that patient was, "very upset. She was crying to the point where she was hyperventilating".

14Dr. Markovic testified that the clinic is private property. It is accessible by a door to the corridor of the building. That door is kept locked and access is controlled through a buzzer and video camera. The reason it is locked is, "because we don't want anti-abortion people to come in." Behind the corridor door is a small outer waiting room that is separated by Plexiglas from a receptionist who controls the corridor door. A larger waiting room is also adjacent to the outer waiting room. Access to the larger waiting room is controlled by a lock. The two-waiting room set-up was designed because "this lady" (it is unclear if that was Ms. Wagner or someone else, but nothing hangs on it), had come to the clinic before when there was only a single waiting room. The dual waiting room system reduces the number of patients that a protester could interfere with if he or she gained access to the clinic. Behind the larger waiting room are offices for counselling and behind those offices is the operating room.

15Dr. Markovic testified that she was in the operating room performing a medical procedure on a patient around 9 a.m. on 15 August, 2012, along with two staff members and a patient, when one of her nurses, Khatija, came and told her of Ms. Wagner's entry into the clinic. She told Khatija to call 911, move the patients into the larger waiting room and ask Ms. Wagner to leave.

16Dr. Markovic testified that it is important that patients be calm. Apparently if a patient is confronted with allegations of being a "baby killer", they get upset, which requires additional counselling and a lot more medication to calm them down. Patients are conscious during the procedure. If they are not calm, it increases the risk of the doctor making a mistake, such as perforating the uterus or an artery, which could cause complications or even death. The patient Dr. Markovic was operating on when Khatija brought the news of Ms. Wagner's presence appeared upset to Dr. Markovic—she started to cry. Dr. Markovic testified that she continued with the procedure but had to take more time and give the patient more medication and time to relax. This occasioned a delay of five or six minutes. The nurse, Khatija, confirmed Dr. Markovic's testimony about the impact of Ms. Wagner's visit on patients during abortions that day and the added time and medication required.

17About ten or fifteen minutes later Dr. Markovic was performing a "procedure" on another patient when Khatija came back to report that Ms. Wagner had left the clinic itself, but was out in the corridor praying loudly. After she finished with the second patient, Dr. Markovic went out into the corridor to check on her secretary, April, who she had been told was out with Ms. Wagner. If Dr. Markovic had not felt the need to go out into the corridor, she would have dealt with other patients. She was delayed in that by about ten minutes.

18When Dr. Markovic went out into the corridor she saw red roses splayed about the main entrance to the clinic. Ms. Wagner was standing between the entrance and the elevator, telling three or four patients approaching the clinic not to enter, not to commit a murder, to take time to reconsider. One of the patients got "very, very upset" and told Ms. Wagner to leave her alone and that her decision was her own business. Ms. Wagner was saying these things in a conversational tone of voice. Ms. Wagner did not use physical force. Dr. Markovic told Ms. Wagner to leave, but she did not leave. Dr. Markovic took the patients into the clinic and left her secretary, April, in the corridor with Ms. Wagner. She told April to stay with Ms. Wagner in the corridor until the police arrived because otherwise Ms. Wagner would just have sneaked back into the clinic.

19Dr. Markovic testified that her secretary, April, was out in the hallway the whole time she was there; had Ms. Wagner not come to the clinic April would have been at her work-station doing administrative work and processing patients. She said that five or six of the ten to fifteen patients she saw that morning after Ms. Wagner's behaviour were crying and it took at least an extra five or ten minutes to perform their procedures because of their upset. Some of them were fourteen years old. Whereas normally one patient a year would call the clinic for post-treatment counselling, six or seven of that morning's patients called back for that follow-up.

20Dr. Markovic denied that she was the "older woman" Ms. Wagner claimed had come out into the corridor who called Ms. Wagner a "psycho" or that she had told Ms. Wagner to "go fuck yourself", language that Dr. Markovic said was "not my dictionary. I don't use those words." She did not slam the door; she pointed out that the door was self-closing. Dr. Markovic said that other than the cleaning lady, she is the oldest woman at the clinic. The words attributed by Ms. Wagner to the "older woman" did not strike Dr. Markovic as the kind of language her cleaning lady would use.

21Dr. Markovic testified that she does not teach her clients embryology; they have access to all sorts of information before they come to her and when they come to her they have generally made up their minds. When they come to the clinic they spend twenty or thirty minutes with a counsellor. If they are not sure of their decision they are told about other options, such as continuing the pregnancy, giving the child up for adoption and going home and thinking about their options further. The clinic provides referrals to gynaecologists and adoption services and further counselling services for those who are not one hundred percent sure that they want to proceed with the abortion. Khatija spoke of this issue as follows:

Patients come in with a fair amount of knowledge before they enter to our clinic. They just want the procedure done. They have tonnes of counselling and opportunities to go on pro-life websites and to address these issues.

22Constable Richard Mau attended at the clinic in response to the 911 call. He found Ms. Wagner in the corridor and told her that it was private property and she had to leave, to which she said that she chose to stay because of her convictions. During Constable Mau's time there, Ms. Wagner tried to approach one patient coming out of the office and give her a rose. Faced with Ms. Wagner's repeated refusals to leave under her own steam, Constable Mau and his partner each took an arm and escorted her out. Upon confirming her probation conditions, she was arrested outside the building.

23Ms. Wagner testified that she is Roman Catholic and a member of the pro-life community. She has been engaged in pro-life activity for decades and has been arrested many times because of it, spending perhaps a total of two-and-a-half years in jail as a result of her activism. She has violated "bubble zones" around abortion clinics, "Because children's lives were in danger. The lives of human beings were in danger, and I needed to go and to speak for them." Her obligation to intervene for the unborn arises from her faith and from a universal concern for others. She testified that, "it's a certainty that each human being is precious and human life begins at conception; that life in the womb is – is a human being just like you are a human being." Her criminal record reflects no moral wrongdoing, she said.

24Ms. Wagner testified that in her view, people considering abortions need greater education, including information about the continuum of human life from fertilization to full adulthood. People considering an abortion have a right to full information about what is involved for the mother and the baby, from a health, emotional, physical and spiritual perspective and others have a duty to provide that information. While such information should be provided much earlier, providing information at the clinics is important because it is the, "last chance for the human being in their womb to be protected."

25Ms. Wagner testified that on 15 August, 2012 her intention was to protect unborn human beings who were going to be aborted. She sees the unborn as being under her protection and, in an abortion clinic, nobody else is likely to protect them. She hoped that some of the patients would accept the support she was offering because that has sometimes happened in the past. She offered the rose to the patient as a gesture of peace and comfort and told her she had options. Each of the pamphlets she had with her had a purpose, one in connection with providing a place for mothers to stay and carry her child to term, another to show the development of the foetus and the finality of the decision to abort, another about the health and psychological risks of abortion, and so on. From her interaction with women who have had abortions, Ms. Wagner understood that abortion clinics typically provide minimal information to patients.

26Ms. Wagner testified that she did not consider herself to be trespassing at the clinic, but rather to be acting out of necessity to protect human life that was in danger. While she was "technically" violating court orders by attending the clinic, "human life takes precedence over court orders…. Care for human life should be given highest priority." Ms. Wagner says that if obeying natural law requires her to pay a penalty for breaking man's law, she is prepared to pay that penalty. She will likely return to abortion clinics after this trial is over and pay whatever penalty ensues for that also.

27With respect to what happened on 15 August, 2012, Ms. Wagner said she followed a young couple into the clinic and then approached another couple sitting in the outer waiting room, offered the young woman a rose and said there was support available for her. Within seconds, the receptionist Jane came out and told her to leave. Ms. Wagner kept engaging with the young woman, who eventually said, "I don't want this", whereupon Ms. Wagner said she left her and approached another couple. She said that Khatija entered the room before she could get to the second couple and she also told her to leave. Khatija, she said, put her hands on Ms. Wagner to get her out and Ms. Wagner told her that was an assault, to which Khatija's response was "charge me". Around this time Ms. Wagner said she told someone behind the Plexiglas that she should get another job.

28Within a couple of minutes, the outer waiting room had been cleared and Ms. Wagner said she realized there was an inner waiting room, so she raised her voice loud enough for the people in that room to hear her and held a pamphlet up to the glass barrier between the rooms, imploring them not to go ahead with the abortions. She tried to enter the inner waiting room, but it was locked. At this point Khatija renewed her efforts to remove her physically; with Jane's help, they managed to get her out into the corridor.

29Ms. Wagner testified that for a while she was left alone in the corridor, so she prayed silently. After a while, April came out and went down by the elevator. She told April to find other work. Then Dr. Markovic came out and started screaming at her, calling her a "psycho" and telling her to "go fuck yourself", before returning into the office. After that, a woman came out from another office and said people in her suite were getting upset and asked Ms. Wagner to leave.

30Eventually Ms. Wagner noticed that patients were coming off the elevator and entering the clinic through the back door so she tried to engage with them, about five women in total, along with their supporters, but Khatija spoke over her. At one point, she said, Khatija threatened her, although Ms. Wagner could not recall the exact words. After Ms. Wagner said that Khatija was free to vent her anger, she said Khatija no longer raised her voice to her.

31Ms. Wagner accepted that her presence at the clinic did cause disruption and interfered with the business of the clinic. That was her intention. While she felt free to disobey a court order to protect the unborn, Ms. Wagner testified that she would not resort to violence for that purpose, because her faith requires her to lay down her life for others rather than to take up arms.

Conclusions on the Evidence of What Happened At The Clinic

32The testimony I heard did not really strike me as requiring any particular findings of credibility. Ms. Wagner came across as a sincere witness and I believe that I can place much credit in her testimony about what happened at the clinic. The same, however, can be said for the Crown witnesses. Indeed, I do not believe that this case really is about what happened at the clinic as opposed to what legal conclusions follow from what happened. The only glaring factual inconsistency is the question of whether or not Dr. Markovic came out of the clinic and called Ms. Wagner a "psycho" and swore at her, which she denies. That question, of course, is entirely irrelevant to anything and I do not believe that resolving that question would even help me with any issue about the general credibility of Ms. Wagner or Dr. Markovic so I shall say no more of it.

33On the evidence before me, it is clear beyond any doubt that Ms. Wagner attended at the clinic and communicated with people there, in clear and wilful disobedience of the two probation orders. Her conduct clearly disrupted the operation of the clinics and the treatment of the clinic's patients in more than a trivial manner, thus making out the offence of mischief interfering with private property and her commission of that offence constitutes breaches of her obligation to keep the peace and be of good behaviour in each probation order. Before any pronouncement can be made on whether or not the charges have been proved beyond a reasonable doubt, however, I must consider whether or not the various arguments in Ms. Wagner's defence hold sway, including questions such as whether or not the Crown has disproved defence of others and necessity as argued by Ms. Wagner.

The Law of Self-Defence/Defence of Others

34These events occurred in 2012. Between then and the time of the trial, Parliament changed the self-defence/defence of others provisions of the Criminal Code. Ms. Wagner initially appeared to rely solely on the pre-amendment provisions, but I expressed my view that both versions should be considered and argued, after which Ms. Wagner argued that she should have the benefit of whichever provision better served her, only to adopt the position late in argument that she was not relying on the new s. 34. Different arguments might arise depending on which provision(s) Ms. Wagner is entitled to rely on. Quite apart from the position adopted by Ms. Wagner, it is my duty to consider any potential defence that may be available and I have done so.

35The version of the law of self-defence/defence of others that was in effect at the time of the alleged offences was the object of significant confusion and criticism as being unduly complex. One prominent professor, now a judge of this court, accorded the old provisions the label of, "the most confusing tangle of sections known to law," and other judges and commentators were equally uncharitable in their observations. There were various provisions in effect at the time (not necessarily particularly compatible with each other), but the one argued as being applicable to Ms. Wagner's case was section 37, which stated as follows:

37. (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

36This provision is dramatically different from the successor provision, which is set out further on in these reasons. A number of questions arise under section 37 of the Code in effect in 2012, such as:

(a) What is the meaning of "force" in the section and does it encompass Ms. Wagner's intervention?

(b) Were the foetuses of the clinic clients "anyone"? This issue is addressed elsewhere in these reasons.

(c) If the foetuses were included within the word, "anyone", were they under Ms. Wagner's protection?

37It was argued on Ms. Wagner's behalf that the word "force" is not limited to physical intervention, but could include her efforts at verbal persuasion. On the facts of this case, it is clear that Ms. Wagner was not physically assaultive at any time and even her resistance to being removed from the clinic was clearly passive resistance, using only the weight of her body to make removal difficult.

38From a purely linguistic perspective, the word "force" is capable of many meanings. To the grade ten student, "force" and the formulae relating to it are either the entrée to great career potential or reasons for eternal enmity towards Sir Isaac Newton. A boxer might succumb to the force of his opponent's blows. A contracting party's liability might be excluded in case of force majeure. Martin Luther King, Jr. might be said to have dominated the political landscape of the United States by the force of his convictions, his personality and his oratory. Undoubtedly, many judges have heard "forceful" submissions from counsel, as did I in this case. I think it can fairly be argued that Ms. Wagner's efforts at persuasion in the clinic fit within some linguistic definitions of "force". That, however, is not the end of the inquiry.

39The word "force" is not defined in the Criminal Code. It is, however, used in numerous sections of the Code and its use in those sections within the same statute is a legitimate source of enlightenment as to its meaning in the self-defence/defence of others provisions of that same statute. Among the places where the word "force" is used in the Code are:

(a) Section 25(1), which empowers persons enforcing the law to "use as much force as is necessary for that purpose."

(b) Section 25(3) limits the power to use "force that is intended or likely to cause death or serious bodily harm" except in specific circumstances defined in s. 25(3) and ss. 25(4) and 25(5).

(c) Section 26 criminalizes the excessive use of force by persons authorized to use force.

(d) Section 27 authorizes the use of force to prevent the commission of an offence for which a person could be arrested without warrant and that would be likely to cause immediate and serious personal injury or property damage.

(e) Section 27.1 provides similar authorization if there is danger of immediate and serious danger to an aircraft in flight or any of its occupants.

(f) Section 30 authorizes the use of "no more force than is reasonably necessary" to prevent a breach of the peace.

(g) Section 32 authorizes the use of force to suppress a riot.

(h) The present s. 34 of the Code makes repeated use of the word "force".

(i) The former section 34 of the Code, which was in force at the time of Ms. Wagner's attendance at the clinic said: "Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm…"

(j) Section 43 allows teachers, parents and others to use force by way of correction of a child or pupil if the degree of force is reasonable under the circumstances.

(k) Section 46(2) (a) defines treason as including the use of "force or violence" to overthrow the government of Canada or a province.

(l) Section 59, the sedition provision, criminalizes advocating the use of force as a means of governmental change.

(m) The unlawful assembly provision of the Code, in s. 68 makes it an offence for any person who "opposes, hinders or assaults, wilfully and with force" a person seeking to proclaim an assembly to be unlawful.

(n) Section 76 of the Code describes hijacking in terms of, "unlawfully, by force or threat thereof" exercising or seizing control of an aircraft for defined purposes. Section 78.1 provides likewise for seizure of a ship or fixed platform.

(o) Section 144 makes it an offence "by force or violence" to cause a prison break.

(p) The Criminal Code vitiates consent in sexual matters, e.g. if, "the consent is extorted by force, threats or fear of bodily harm…" (e.g. s. 159(3) (b)(ii).). Likewise, a complainant's failure to resist a kidnapping or forcible confinement is irrelevant unless the defendant can show that the failure to resist was not brought about by "force or exhibition of force" (s. 279).

(q) Section 176(1) of the Criminal Code makes it an offence "by threats or force" to obstruct the clergy from performing divine service, an indictable offence. Sections 176(2) and (3), by distinction, make it a summary conviction offence wilfully to disturb such a meeting.

(r) Section 265(1) of the Criminal Code includes as one of the definitions of "assault", the non-consensual, intentional application of "force" to another person. The section goes on to vitiate any "consent" obtained by the application of force or fear of the application of force.

(s) Section 12(b) of the Controlled Drugs and Substances Act empowers an officer executing a search warrant to, "use as much force as is necessary in the circumstances".

(t) I also note that the sabotage provision in s. 52 of the Criminal Code provides an explicit exemption from criminal liability for the type of behaviour alleged against Ms. Wagner in the present case, as follows:

(4) No person does a prohibited act within the meaning of this section by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information.

40In R. v. Conception, the Supreme Court of Canada has most recently re-affirmed the current governing approach to statutory interpretation as follows:

[14] This issue raises a question of statutory interpretation which must be resolved according to the modern principle of statutory interpretation: "the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament" (R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 1, citing E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87). We underline that the starting point is the text of the provisions in their grammatical and ordinary sense.

41I think that even if one were to start with the view that the word "force" in the English language "can" encompass the type of persuasion that Ms. Wagner sought to engage in at the clinic, a reading of the Criminal Code overall suggests that the word "force" as used repeatedly therein was intended by the legislator to refer to an act of violence or constraint or something similar. Virtually all of the uses of the word "force" in the Criminal Code otherwise make little or no sense. For example, section 25(1), which protects police officers from liability for the use of "force" would scarcely be necessary to protect them from liability for verbally persuading an offender to put down his gun. Section 27, safeguarding a person from the use of force to prevent the commission of an offence would seem redundant if "force" included simply talking a person out of committing an offence, since talking to someone is hardly likely to engage criminal liability in those circumstances. Likewise, in s. 32, it is hard to image that Parliament seriously thought it was necessary to safeguard a person from criminal liability for verbally persuading people not to riot. In the old s. 34, the idea that "force" includes "persuasion" is entirely irreconcilable with the balance of the section. The same is true of the language of the old section 35. In a different context, there are references to the obtaining of consent (re assaults, certain sexual offences) by "force", whereby Parliament holds that consent obtained by force is irrelevant. It would be peculiar if "persuasion" were to expose an individual to criminal liability in such circumstances.

42I suppose it might be argued that the occasional use of the words "force or violence" in the Criminal Code means that "force" does not necessarily include violence. I think, rather, that such language simply reflects the lawyer's and draftsperson's frequent failing in often preferring two words where one would do, purely out of an abundance of caution. I do not think that causing a prison break by "[persuasion] or violence" was the object of s. 144 of the Criminal Code.

43I also note the dramatic difference between the old provision and the new provisions, which may, to some extent, be informative with respect to the meaning of the old provisions. The new provision, set out hereafter, moves entirely away from the narrower concept of justifying a person's use of "force" to the much broader concept of justifying a person's "act".

44Accordingly, I do not accept the argument that Ms. Wagner can shelter herself under s. 37 because her conduct at the clinic does not, by its terms, fit within the use of force as required by any sensible reading of the section. To give "force" the meaning she asks would do violence to the clear and inescapable intention of Parliament in its choice of that word.

45I also cannot accept Ms. Wagner's contention that (assuming for present purposes that the foetus counts as "anyone"), the unborn foetus was "under her protection." For that argument to be valid, the words "under her protection" would have to be read as being entirely redundant. The argument as framed by Ms. Wagner really suggests that anyone is under everyone's protection. If that had been Parliament's intention, the words "under his protection" would not have appeared in the provision. It seems clear to me that the words "under his protection" were intended by Parliament to limit the shelter of the old s. 37 to defendants who bore some special relationship (by fact or invitation) to the person being protected or who were under some legal obligation to extend protection to that person. While it may be argued that a law providing broader protection to the "good Samaritan" would have been better public policy, that is not the law that Parliament adopted in section 37. The new section 34 appears to remedy that shortcoming.

46It was argued on Ms. Wagner's behalf, that there are cases interpreting "under his protection" very broadly. For example, Ms. Wagner refers to the trial decision of the Ontario Court (General Division) in R. v. Webers, as authority for that proposition. I am prepared to agree that "under his protection" is not a closed or defined class of cases, but it has to mean something. Thus, in Webers, the fact that the person Mr. Webers intervened to protect from a blatantly unlawful and outrageous assault by eight hospital staff and police officers on a twenty-year employee of his who looked upon him as a father and whom he had escorted to the hospital when she was experiencing a breakdown, could very reasonably qualify as a person "under his protection" within the meaning of s. 37 of the Code. The language of O'Connor, J. to the effect that, "it means anyone who requires protection which the accused may be able to provide," is clearly obiter and, with all due respect, hard to reconcile with the language of the section. Likewise, I do not have difficulty accepting that if a person recruits a stranger to assist him and the stranger agrees to offer that assistance, the relationship of a person under the stranger's protection has likely thereby been created. This is the scenario in R. v. Barkhouse, where a person was called in aid to resist an unlawful vehicle seizure, although I note that the judge in that case did not go so far as to actually find that Mr. Barkhouse was protected by the then s. 37 language of defending a person "under his protection".

47Ms. Wagner also argued that she was entitled to rely on the common-law of defence of others, which is argued to be broader than the language of s. 37. It is certainly true that some of the cases referred to note that common law defences are preserved in Canada under s. 8(3) of the Criminal Code, but it seems to me that none of the cases cited does so with any particular critical assessment, merely a recitation of that "fact" followed by reference to English authorities defining the potential extent of the common law, including reference to the comment by Edmund-Davies, L.J. in R. v. Duffy, that, "there is a general liberty even as between strangers to prevent a felony."

48I fear that this repeated reliance on the common law of defence of others fails to recognize the qualifying language of s. 8(3) of the Criminal Code, namely, "except in so far as they are altered by or are inconsistent with this Act…" The restrictive language of s. 37, as it was, seems palpably inconsistent with a regime where it would apply even as between strangers, unless perhaps the defendant had been expressly recruited by the stranger to come to his or her aid. Obviously, no such call in aid could have occurred here insofar as the "persons" in need of assistance were foetuses.

49I cannot accept that the common-law defence was available to Ms. Wagner to, in effect, circumvent the restrictive language of the former s. 37 as enacted by Parliament. In any event, unless the foetus was a "person" and the mother's use of force on that "person" was unlawful, the common law would not authorize Ms. Wagner's intervention. As we shall see below, since s. 251 of the Criminal Code was struck down, there is no law prohibiting abortion in Canada.

50The new self-defence/defence of others provisions in the Criminal Code are greatly streamlined from the earlier version and provide a meaningful framework for assessing when conduct that might otherwise be criminal will be exempted from criminal liability because of "self-defence". For our purposes, the governing provision is the new s. 34 of the Criminal Code, which states:

34. (1) A person is not guilty of an offence if

( a ) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

( b ) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

( c ) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

( a ) the nature of the force or threat;

( b ) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

( c ) the person's role in the incident;

( d ) whether any party to the incident used or threatened to use a weapon;

( e ) the size, age, gender and physical capabilities of the parties to the incident;

( f ) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

( f.1 ) any history of interaction or communication between the parties to the incident;

(g ) the nature and proportionality of the person's response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

51As I noted above, when the new self-defence provisions came into effect there was controversy about whether or not, as substantive law, they would have retrospective application. As mentioned earlier, I found the reasoning of MacDonnell, J. in R. v. Pandurevic, supra, and of Paciocco, J. in R. v. Parker, supra, compelling and, as such, was satisfied that the new s. 34 of the Criminal Code was also available to Ms. Wagner, a view that I communicated to the parties. I observed that neither Crown nor defence focused long on the issue, in the Crown's case presumably because it felt that however much more favourable the new s. 34 might be to Ms. Wagner's position, the Crown's contention that a foetus is neither "any one" nor "another person" was unanswerable.

52I think that, with the exception of the issue of the status of the foetus, the new s. 34 remedies the language of the old s. 37 that, in my opinion, precluded Ms. Wagner from having resort to its protection. The new s. 34 applies to any alleged offence where the defendant's act was in response to the perceived use of force or threatened use of force against the defendant or "another person". This would potentially cover both the mischief and breach of probation charges. "Another person" is entirely unqualified, this making it seem clear that it was Parliament's intent to safeguard the good Samaritan if he or she stayed within the boundaries defined by the new s. 34.

53Under the new s. 34 it would seem that Ms. Wagner would tick a couple of the boxes. There is no disputing that Ms. Wagner reasonably believed that the foetuses of the clinic patients were in imminent danger of being subjected to (deadly) force. There is no disputing that her intercession was intended to protect the foetuses from that imminent peril. The remaining questions are (1) whether or not the foetus is "another person"; and, (2) whether or not her acts were reasonable in the circumstances. In respect of the second inquiry, it would seem to me that Ms. Wagner would probably have little difficulty demonstrating the imminence of the threat or the likely use of a "weapon" in the feared use of force against the foetuses, but I expect she would have significant difficulties with the following parts of the new s. 34(2):

(b) "whether there were other means available to respond to the potential use of force";

(h) " whether the act committed was in response to a use or threat of force that the person knew was lawful".

54I do not see how Ms. Wagner could succeed, even under the new s. 34(1)(c), in light of, at a minimum, ss. 34(2)(b) and (h). These events occurred in mid-2012. By that time, the pro-life movement was a long-established and significant community with the resolute backing of powerful religious and other forces; it was no shrinking violet and no marginalized group. By that time, the Internet was fully entrenched in modern society and its capacity via "crowdfunding" for people and groups to amass very substantial resources for a common goal was already well established. These are neither novel nor obscure realities. It was the view of Ms. Wagner and those with whom she worked that the killing of every foetus was a murder. However personally well-motivated they may have been, her actions sought to impose her will and her world-view on emotionally vulnerable patients and their companions in a medical facility who were seeking lawful treatment, which Ms. Wagner knew to be lawful under the law of Canada. Her intervention also affected the treatment and potentially the safety of those patients. The availability of other options, such as going to court to seek a declaration in relation to the lawfulness of abortion undermines Ms. Wagner's ability to rely on the new s. 34 of the Criminal Code.

55I do not know whether Ms. Wagner went to the clinic that day hoping to be charged criminally, hoping to have a prominent pulpit from which to argue her cause and hoping, as in indigent criminal defendant, to have her challenge to the abortion law funded by the state as she ultimately sought to do in this trial. Whether events were planned that way or that was just the way it played out is irrelevant for present purposes. What is relevant is that there was at least one other path open to Ms. Wagner for her to raise a legal challenge to abortion by way of application in Superior Court. Given the size of the pro-life movement and the success of much less significant crowdfunding causes, any such challenge could easily have raised a significant war chest to fund the litigation without selecting individual patients and their partners as pawns in Ms. Wagner's campaign. I appreciate fully Ms. Wagner's position that her acts were performed to save human life, but there are two perspectives to almost every argument.

56I should also note, that to the extent that it might be argued that an application for a declaration that personhood attaches upon conception and that abortion is therefore murder would not save lives that day, that argument strikes me as somewhat of a sophism: why, then, was Ms. Wagner not at the clinic the day before, or the week before that? If Ms. Wagner's argument about when personhood attaches is correct, why try to save one or two lives when one could more readily save tens of thousands by an application?

Necessity

57It was also argued on Ms. Wagner's behalf that the defence or excuse of "necessity" was available to her. I do not agree.

58As I have noted above, common-law justifications and excuses are largely preserved in Canadian criminal law by s. 8(3) of the Criminal Code. Ironically, the history of the availability of necessity in Canadian law wends its way through the travails of one of Ms. Wagner's nemeses: see Morgentaler v. The Queen, but it found its clearest definition nine years later when a ship laden with drug smugglers and tonnes of marihuana bound from Colombia to Alaska found it necessary to set ashore on Vancouver Island as a result of weather and mechanical difficulties, whereupon they were beset by the Royal Canadian Mounted Police. In Perka v. The Queen, Dickson, C.J.C., who, nine years earlier, had expressed at best lukewarm openness to the possible existence of a defence of necessity in Morgentaler (1975), supra, clearly recognized that a "defence" of necessity existed and expanded greatly upon when "necessity" would excuse a person from criminal liability for his acts.

59In Perka, supra, Dickson, C.J.C. traced the defence of necessity back to Aristotle. He observed that the defence actually encompassed two separate concepts and that the failure to distinguish between them was the source of substantial confusion. As expressed by the Appellate Division of the Nova Scotia Supreme Court in R. v. Salvador (1981), 59 C.C.C. (2d) 521, a case along the same lines as Perka, supra, "necessity" covers cases, (a) where an emergency excuses non-compliance with the law; or (b) where the actor's pursuit of some greater good justifies the otherwise unlawful conduct. As the Law Reform Commission of Canada noted, as cited by Dickson, C.J.C., the former of these is a utilitarian philosophy, the latter a humanitarian philosophy.

60Dickson, C.J.C. addresses the two concepts as follows in Perka, supra:

It will be seen that the two different approaches to the "defence" of necessity from Blackstone forward correspond, the one to a justification, the other to an excuse. As the examples cited above illustrate, the criminal law recognizes and our Criminal Code codifies a number of specific categories of justification and of excuse. The remainder, those instances that conform to the general principle but do not fall within any specific category such as self-defence on the one hand or insanity on the other, purportedly fall within the "residual defence" of necessity.

As a "justification" this residual defence can be related to Blackstone's concept of a "choice of evils". It would exculpate actors whose conduct could reasonably have been viewed as "necessary" in order to prevent a greater evil than that resulting from the violation of the law. As articulated, especially in some of the American cases, it involves a utilitarian balancing of the benefits of obeying the law as opposed to disobeying it, and when the balance is clearly in favour of disobeying, exculpates an actor who contravenes a criminal statute. This is the "greater good" formulation of the necessity defence: in some circumstances, it is alleged, the values of society, indeed of the criminal law itself, are better promoted by disobeying a given statute than by observing it.

With regard to this conceptualization of a residual defence of necessity, I retain the skepticism I expressed in Morgentaler, supra, at p. 678. It is still my opinion that, "[n]o system of positive law can recognize any principle which would entitle a person to violate the law because on his view the law conflicted with some higher social value". The Criminal Code has specified a number of identifiable situations in which an actor is justified in committing what would otherwise be a criminal offence. To go beyond that and hold that ostensibly illegal acts can be validated on the basis of their expediency, would import an undue subjectivity into the criminal law. It would invite the courts to second-guess the legislature and to assess the relative merits of social policies underlying criminal prohibitions. Neither is a role which fits well with the judicial function. Such a doctrine could well become the last resort of scoundrels and in the words of Edmund Davies L.J. in Southwark London Borough Council v. Williams, [1971] Ch. 734 , it could "very easily become simply a mask for anarchy".

Conceptualized as an "excuse", however, the residual defence of necessity is, in my view, much less open to criticism. It rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience. The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they are excusable. Praise is indeed not bestowed, but pardon is, when one does a wrongful act under pressure which, in the words of Aristotle in the Nicomachean Ethics, supra, at p. 49, "overstrains human nature and which no one could withstand". (emphasis added)

61At p. 259 of Perka, supra, Dickson, C.J.C. lists ten considerations that should be kept in mind when assessing the availability of a necessity "defence". I have reviewed those ten criteria and one of them strikes me as particularly cogent in the present case, namely:

(8) the existence of a reasonable legal alternative similarly disentitles; to be involuntary the act must be inevitable, unavoidable and afford no reasonable opportunity for an alternative course of action that does not involve a breach of the law;

It seems to me that Ms. Wagner's necessity ship must founder on this rock. There was a "reasonable legal alternative" open to her, "an alternative course of action that does not involve a breach of the law". Quite apart from her freedom to engage in various forms of advocacy and in any public demonstrations that complied with the law and with her particular probation terms, it was always open to Ms. Wagner and those of similar world view to go to a civil court and to argue before that court everything that has been argued before me. I have dealt elsewhere in these reasons with why Ms. Wagner's personal penury is irrelevant to her ability to pursue her cause in a civil application or action. It might be argued that a civil action would not respond to the urgency of saving any foetuses that would have died that day, but that is, in the context of the abortion debate, a specious argument. That day was no different than any of the days before or since. The simple reality here is that Ms. Wagner does not agree with the law and chose to disobey it because she felt bound to do so by some higher calling. This is a formulation of the law of necessity that the Supreme Court of Canada rejected outright in Perka , supra.

A Viva Voce Evidentiary Hearing on The Charter Issue?

62It was Ms. Wagner's wish to call evidence in support of her argument about the status of the foetus and its right to protection under the Charter. I asked the parties to address the issue of whether or not an evidentiary hearing was warranted. For the purposes of addressing that issue, I invited Ms. Wagner to file a written outline of what she expected her expert witnesses would say. For the limited purpose of determining whether or not to enter into an evidentiary hearing on the science of human conception, foetal development, etc., that material would be taken as uncontroverted.

63There is a long history of courts imposing time limits on counsel. Very tight limits on argument are a given in the Supreme Court of Canada. Limits on oral argument have long been routine in the Court of Appeal for Ontario, sometimes serving as a challenge to the loquacious counsel, sometimes holding out to the nervous young barrister the promise that his or her ordeal at the hands of the panel will at least end by a time certain. In this court, operating on the theory that few if any judges require to be educated by counsel on what R. v. Askov or R. v. Morin say about the right to trial within a reasonable time, applications to stay charges for delay under s. 11(b) are routinely tightly time-limited, with the admonition to counsel to focus on the particularities of their client and his or her case.

64Time limits in appellate courts have a longer pedigree than in trial courts, but the authority for imposing time limits and the corollary that trial judges have the authority to exercise reasonable control over how cases are presented and how court time will be allocated is unassailable. That authority reflects the fact that court time is a finite resource with many litigants seeking to avail themselves of it and that the halcyon days when a single "provincial court" could hear two or three trials in a day are at best a "fond" reminiscence for older counsel and entirely implausible to younger counsel who did not live through that reality and who take for granted that a routine impaired driving trial will take longer than a day. The present case is an example of the post-Charter reality of trial scheduling. Before the Charter, this trial might have taken two or three days, perhaps less. I have lost count of how many appearances there have been and that is without having entered into an evidentiary clash of scientists, which would have added several more days.

65Two 1992 decisions of the Court of Appeal for Ontario clearly anchor a trial court's power to decline to enter into an evidentiary hearing in appropriate cases. In R. v. Kutynec, Finlayson, J.A. wrote for the court in the context of an application to exclude evidence at trial:

In some cases, when the defence indicates, prior to the calling of evidence, that it intends to advance a Charter application to exclude evidence, the trial judge may call upon the defence to summarize the evidence that it anticipates it would elicit on the application. This kind of procedure is well known to the criminal process: see R. v. Sproule (1975), 1975 CanLII 1354 (ON CA) , 26 C.C.C. (2d) 92 , 30 C.R.N.S. 56 (Ont. C.A.) , at pp. 97-98 C.C.C., pp. 62-64 C.R.N.S., and R. v. Dietrich, 1970 CanLII 377 (ON CA) , [1970] 3 O.R. 725 , 1 C.C.C. (2d) 49 (C.A.) , leave to appeal refused, [1970] S.C.R. xi, [1970] 3 O.R. 744 n, at pp. 738-39 O.R., p. 62 C.C.C. If the defence is able to summarize the anticipated evidentiary basis for its claim, and if that evidence reveals no basis upon which the evidence could be excluded, then the trial judge need not enter into an evidentiary inquiry. In other words, if the facts as alleged by the defence in its summary provide no basis for a finding of a Charter infringement, or a finding that the evidence in question was obtained in a manner which infringed the Charter , or a finding that the test for exclusion set out in s. 24(2) was met, then the trial judge should dismiss the motion without hearing evidence.

There is nothing unique in this position. Where an accused bears the burden of proving the admissibility of evidence, it is incumbent on counsel to put forward a factual and legal basis on which the evidence could be admitted. Counsel is not entitled to proceed immediately to a voir dire on the issue. The same principle should be applied where the onus is on an accused to establish that certain evidence is inadmissible.

Kutynec dealt with an application to exclude evidence under s. 24(2) of the Charter, but there is no principled reason why a trial judge's power ought not to be exercised in appropriate cases dealing with other Charter arguments. The breadth of the principle can be seen in a case that followed Kutynec, supra, by a few months.

66R. v. Durette et al. was the Court of Appeal's treatment of one of the great biker drug conspiracies of the 1980s. The prosecution was so large that the Crown split it into two trials, a twelve-defendant trial in the then Supreme Court of Ontario followed by a twenty-seven-defendant trial in the then District Court. The issue of delay arose in the District Court trial and defence counsel sought to call evidence on the Crown's decision to split the trial, which the defence argued was the cause for the delay. To that end, the defence proposed to examine the officer-in-charge and two members of the Department of Justice about the reasons for splitting the prosecution. The trial judge refused that request, which refusal became one of the grounds of appeal. Finlayson, J.A., speaking for the majority, stated (at paragraph 31):

In my opinion, because the burden of establishing a violation of the Charter falls on the accused, when an accused makes a Charter motion he or she can be asked to stipulate a sufficient foundation for the claim or its constituent issues. If such a foundation cannot be articulated, I think the trial judge may determine that it is not necessary to hear evidence on the issue and he is entitled to dismiss the motion: see R. v. Hamill (1984), 1984 CanLII 39 (BC CA) , 14 C.C.C. (3d) 338 , 13 D.L.R. (4th) 275 (B.C. C.A.) [affd 1987 CanLII 86 (SCC) , [1987] 1 S.C.R. 301 , 33 C.C.C. (3d) 110 ], at pp. 366-67 C.C.C., pp. 302-03 D.L.R.

67Finlayson, J.A. placed this power in the context of the need to ensure that trials are not any more unwieldy and time-consuming than they need to be (at paragraph 44):

The Supreme Court of Canada and appellate courts across Canada have been attempting in recent years to restrict the issues that go to a jury to those which have, on the evidence, an air of reality to them. Just as we have tried to restrict the trial of an accused on the merits to factual issues that are directly raised in the particular case, so should we strive to restrict pre-trial Charter motions to matters of substance where defence counsel can establish some basis for a violation of a right. Unless we, as courts, can find some method of rescuing our criminal trial process from the almost Dickensian procedural morass that it is now bogged down in, the public will lose patience with our traditional adversarial system of justice. As Jonathan Swift might have said, we are presently sacrificing justice on the shrine of process.

68Age has not wearied the proposition advanced in Kutynec and Durette, supra, nor have the years condemned it. Although it dealt with problems of a different order of magnitude from anything I encountered in this case, the language of the Court of Appeal in R. v. Felderhof reinforces the validity of Kutynec and Durette, supra. Speaking for the court, Rosenberg, J.A. stated:

[40] Whatever may have been the case in the past, it is no longer possible to view the trial judge as little more than a referee who must sit passively while counsel call the case in any fashion they please. Until relatively recently a long trial lasted for one week, possibly two. Now, it is not unusual for trials to last for many months, if not years. Early in the trial or in the course of a trial, counsel may make decisions that unduly lengthen the trial or lead to a proceeding that is almost unmanageable. It would undermine the administration of justice if a trial judge had no power to intervene at an appropriate time and, like this trial judge, after hearing submissions, make directions necessary to ensure that the trial proceeds in an orderly manner. I do not see this power as a limited one resting solely on the court's power to intervene to prevent an abuse of its process. Rather, the power is founded on the court's inherent jurisdiction to control its own process.

[43]….. In my view, the trial judge must have the power to control the procedure in his or her court to ensure that the trial is run effectively. Sometimes, the exercise of this power may mean that the trial judge will require counsel to proceed in a different manner than counsel desired.

69Affirmation of the principle can also be found even higher in the judicial pecking order. In R. v. Pires and Lising, the Supreme Court of Canada endorsed Finlayson, J.A.'s concern about "the almost Dickensian procedural morass" when it stated:

35 The concern over the constructive use of judicial resources is as equally, if not more, applicable today as it was 15 years ago when Garofoli was decided. For our justice system to operate, trial judges must have some ability to control the course of proceedings before them. One such mechanism is the power to decline to embark upon an evidentiary hearing at the request of one of the parties when that party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court.

70It goes without saying that an evidentiary hearing should never be denied where to do so might cause an injustice. However, where it reasonably appears to a trial judge that a long evidentiary inquiry (here set for five days of court time and nothing in this case including these reasons was done in the time allotted), even assuming all facts are found in favour of the applicant, cannot possibly result in the relief the applicant seeks, it lies within the trial judge's power to decline to enter into that evidentiary hearing. (Arguably, this is not just a matter of a judge's power, but in a system with more demands on its time than time itself, it is arguably a judge's obligation to the other participants in the system). The question, of course is whether or not any given case falls within the rule. In this case, for the reasons I state when I address the proposed evidence and the state of the law in Canada, it seemed inescapable to me that the evidentiary hearing sought had no conceivable chance of affecting the outcome of the case.

71I should make it very clear that I entirely reject the argument made on Ms. Wagner's behalf that a judge's power to decline to hold an evidentiary hearing is restricted to arguments about the violation of a Charter right as opposed to four other scenarios, namely:

(a) A constitutional challenge to legislation under s. 52 of the Charter;

(b) Interpretation of statutory language such as "anyone";

(c) The question of reasonableness in a "mistake of fact" defence;

(d) The defences of necessity and the defence of others.

I see nothing in the language of the cases to limit a trial judge's power in the manner proposed and any such limitation strikes me as lacking any reference point in principle or in rationality. The idea that a trial judge has no choice but to engage in a long and pointless evidentiary hearing because the underlying issue is, e.g., the constitutionality of an enactment, whereas he could refuse such a hearing if the allegation were a violation of a right, is, to be charitable, peculiar. It is a distinction without a difference.

72Neither does the principle of full answer and defence come to Ms. Wagner's support. Every litigant enjoys that right. Not even a defendant in a criminal trial, however, enjoys the absolute right to arrogate to herself finite public resources. Ms. Wagner's arguments are not particularly novel. The foundation of each of them (i.e. the legal and constitutional status of a foetus) has been around for decades. The process adopted allows her to express what the expert evidence would have been in written form and, for the purpose of deciding whether to hold a viva voce hearing of the expert evidence, to have that evidence accepted as true, as far as it goes. If this is a denial of the right to full answer and defence, it is a most peculiar manifestation. Furthermore, if Ms. Wagner's argument is correct, then every criminal defendant has the right to re-litigate any issue ad infinitum regardless of how many courts have rejected the proposition in the past and even if nothing has changed in the underlying facts or the state of the law. No principle of public policy supports such a philosophy.

"Thus Far Shalt Thou Go And No Further"?

73I should make it clear that while I believe I am entitled to ask the defence to make an "offer of proof" before allowing Ms. Wagner to advance her constitutional argument, I reject the Crown's position that I really had no business even considering the issue because the Supreme Court of Canada had spoken. I find support for this approach in the decision of the Supreme Court in Canada (Attorney General) v. Bedford, which dealt with the constitutionality of various Criminal Code provisions purporting to regulate prostitution. It is inescapable that the present case touches on issues that have enjoyed much (albeit not recent) consideration by the Supreme Court of Canada itself, a court that operates on a level and with an authority and with precedential perquisites substantially above my own. Indeed, as I have mentioned it was the general purport of the Crown's original argument that the field has been so completely tilled by the Supreme Court of Canada that neither I nor Ms. Wagner really ought to tread upon it. While I do not consider that the law of stare decisis acts as quite as much of a latter-day privative clause as the Crown urged upon me, the desirability or propriety of entering into a full-fledged evidentiary hearing that might lead nowhere is all the more concerning if it turns out that the defendant is in effect asking me to overturn the Supreme Court of Canada in circumstances where there has been no material intervening change in the law or the relevant science or other facts. The guiding principles are set out thus by the Supreme Court of Canada in Bedford, supra:

[42] In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.

[43] The intervener, the David Asper Centre for Constitutional Rights, argues that the common law principle of stare decisis is subordinate to the Constitution and cannot require a court to uphold a law which is unconstitutional. It submits that lower courts should not be limited to acting as "mere scribe[s]", creating a record and findings without conducting a legal analysis (I.F., at para. 25).

[44] I agree. As the David Asper Centre also noted, however, a lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. In my view, as discussed above, this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role. (emphasis added)

74More recently, the Supreme Court of Canada in Carter v. Canada reaffirmed the entitlement, indeed the duty, of a trial judge in appropriate cases to revisit decisions of appellate courts stating that:

stare decisis is not a straitjacket that condemns the law to stasis. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that "fundamentally shifts the parameters of the debate"…

As we shall see below, the proposed evidence filed on Ms. Wagner's part falls far, far short of, "fundamentally [shifting] the parameters of the debate," and there was no demonstration of any new legal issue. Indeed, it was put rather bluntly in Ms. Wagner's materials that only a change in the composition of the Supreme Court of Canada is likely to change anything for her cause.

The Legal Background To, And Viability of, Ms. Wagner's Constitutional Argument

75The Criminal Code defines homicide as causing the death of a "human being", a term that is not defined in s. 2 of the Criminal Code, although, s. 223 of the Code says:

223. (1) A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether or not

( a ) it has breathed;

( b ) it has an independent circulation; or

( c ) the navel string is severed.

It is Ms. Wagner's contention that denying a foetus the status of "human being" violates the Charter of Rights and that s. 223 of the Criminal Code is thus inconsistent with the Charter . She also says that the "defence of others" provisions of the Criminal Code must be interpreted in a fashion that recognizes the foetus as being encompassed within its protective scope. It is her contention that the foetus is entitled to the same constitutional protections, including the right to life, that are enjoyed by everyone else after birth and that her actions in defence of that right to life were thus justified. It is Ms. Wagner's contention that conception is the start-point of the life of a human being and that any termination of the foetus's existence would be murder. If she is correct, abortion, in all or most circumstances, would be murder.

76The Charter of Rights guarantees certain rights. Among these rights in s. 7, for example, is, "the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." This is a right guaranteed to "everyone". The obvious question is whether or not a foetus falls within the meaning of "everyone" in the Charter. The Charter uses different terms to define who enjoys various rights. For example, some rights are limited to "every citizen of Canada", many rights are guaranteed to "everyone" including certain rights that arise on arrest or detention, while, for reasons that are not clear the protections given when a person is charged with an offence are given to "any person charged with an offence" rather than to "everyone charged with an offence."

77The issue of abortion rights and foetal rights is one of the most divisive issues in society. The controversy was particularly prominent in the last quarter of the last century. Indeed, in Canada it would surely rank among the most prominent social or political issues of that time. Coincidentally, one of the other great political issues in Canada at the time gave rise to the Charter of Rights, which has become the latest tool in the hands of the pro-choice and pro-life camps. Advocates on both sides of the issue have had resort to the court to seek to advance their positions. It was in light of that long history of jurisprudence that I asked the Crown and defence to address the issue of whether or not I should enter into a full-blown evidentiary hearing on the Charter issues. I shall review several of those decisions below.

78In 1987 the case of Borowski v. Canada reached the Saskatchewan Court of Appeal. Mr. Borowski challenged the then s. 251 of the Criminal Code, which criminalized abortion with a maximum sentence of life imprisonment (two years if the defendant was the pregnant woman), but permitted abortions if a hospital's "therapeutic abortion committee" certified that continuing the pregnancy "would be likely to endanger (the woman's) life or health". Mr. Borowski was pleased with the general criminalization of abortion, but argued that the exception for the sake of the mother's life or health was a violation of the foetus's right to life and security of the person, which cannot be violated other than in keeping with "the principles of fundamental justice". Mr. Borowski also argued that s. 251 could not be justified under s. 1 of the Charter. The trial judge, Cameron, J., had ruled against Mr. Borowski, observing:

Although rapid advances in medical sciences may make it socially desirable that some legal status be extended to foetuses, irrespective of ultimate viability, it is the prerogative of Parliament, and not the Courts, to enact whatever legislation may be considered appropriate to extend to the unborn any or all legal fights possessed by living persons . Because there is no existing basis in law which justified a conclusion that foetuses are legal persons, and therefore within the scope of the term 'everyone' utilized in the Charter , the claim of the plaintiff must be dismissed. (emphasis added).

Cameron, J. also held that a linguistic analysis of the Charter could not result in extending rights to foetuses since the word "everyone" was repeatedly used in various other provisions of the Charter that could clearly never apply to a foetus. In this conclusion, Cameron, J. had the concurrence of the Saskatchewan Court of Appeal.

79In reviewing Justice Cameron's rejection of the contention that a foetus falls within the meaning of "everyone" in s. 7 of the Charter, the Saskatchewan Court of Appeal considered and endorsed Cameron, J.'s detailed survey of the availability of abortion in Anglo-Canadian law and went on to consider the availability of abortion in other legal systems, as well as other areas of Anglo-Canadian law where foetal rights have been considered. The Court of Appeal observed:

It is clear from this historical consideration that for lengthy periods of our legal history in England and in Canada abortions have been permitted at certain stages of pregnancy and for certain reasons. It is equally clear that it cannot be said that there has been a uniform evolution to permit fewer and fewer abortions as, for example, to parallel the development of scientific knowledge or the evolution of moral values.

It is noteworthy that at common law abortion was only an offence after quickening, roughly fourteen weeks after conception, and even then it was only a misdemeanour. The Saskatchewan Court of Appeal went on to conclude:

[21] A consideration of the historic treatment of the foetus shows that at various stages our society has permitted abortion at various stages of foetal development and for various reasons. Such treatment is not consistent with recognition of its status historically as a person, or as an entity to be included within "Everyone".

[22] That is, respect for human life and its fundamental sanctity have been part of the common law tradition for centuries; it did not spring newborn from the inclusion of the words "right to life" in the Charter . But within this tradition for long periods of time, destruction of the foetus has been permitted, albeit limited by the state of foetal development and/or the effect on the mother, and permitted despite full knowledge of the scientific principles of foetal capacity for life urged upon us by the appellant.

[23] Such treatment of the foetus would not have been consistent with full status as a person. In no other instance known to the law would the law have permitted an individual to be destroyed because of age, state of development, or innocent conflict with the well being of another.

[24] I must thus conclude that the historic treatment of the foetus at Anglo-Canadian law has not been as a person or part of "everyone" and that if such status were now to be accorded it would be novel. This is of course not conclusive, but as noted in R. v. Big M Drug Mart Ltd. , supra, is an important factor to be considered by us in making our determination. (emphasis added)

80When the Borowski court went on to consider the treatment of the foetus in other areas of Anglo-Canadian law, it noted that a foetus may acquire certain rights, including the right to sue in tort for damage incurred while it was "en ventre sa mere" and the right to inherit, but that neither of those rights crystallized until the foetus was born alive.

81Looking further afield than Canada, the Saskatchewan Court of Appeal considered first the landmark decision of the United States Supreme Court in Roe v. Wade, which described significant similarities between the American history and the Anglo-Canadian treatment of abortion, concluding:

It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.

82The Borowski court considered the British decision of Paton v. United Kingdom; Paton v. Trustees of BPAS, as reflective of the law of the United Kingdom and by connection of the European Community. In that case, Mr. Paton was denied an injunction to stop his wife from getting an abortion. The application was denied, with the following observation:

The first question is whether this plaintiff has a right at all. The foetus cannot, in English law, in my view, have any right of its own at least until it is born and has a separate existence from the mother. That permeates the whole of the civil law of this country (I except the criminal law, which is now irrelevant)… (emphasis added).

83When Mr. Paton pursued his claim further under the European Convention of Human Rights, that court made it clear that, at least in the early stages of pregnancy the foetus has no "absolute right to life". Only one of the European Union's high contracting parties (what was then West Germany), the court noted, ascribed foetal rights under a provision to the effect that "everyone has the right to life". The history of that interpretation in the West German context, it has been suggested, may have much to do with concerns arising out of that country's relatively recent descent into the abyss of Nazism.

84Having considered the language of the Charter, the Canadian Bill of Rights, a broad survey of international approaches to foetal rights and the legislative history, the Saskatchewan Court of Appeal concluded that, "it was not the purpose of either s. 7 or s. 15 of the Charter to protect the rights of a foetus to life".

85The Saskatchewan Court of Appeal delivered its judgment in Borowski, supra, in April, 1987. At that time, the Supreme Court of Canada had had the case of R. v. Morgentaler, on reserve for some months, ultimately releasing its judgment in January, 1988. Dr. Morgentaler and his colleagues had set up a clinic to perform abortions without the approval of a therapeutic abortion committee as required by the then s. 251 of the Criminal Code. After their challenge to the constitutionality of s. 251 was rejected at trial, Dr. Morgentaler et al. were acquitted by a jury. The Court of Appeal for Ontario rejected their constitutional challenge and set aside the jury's acquittals, ordering a re-trial. On further appeal, the Supreme Court of Canada, in a 5:2 decision, held that s. 251 of the Criminal Code violated s. 7 of the Charter and was of no force or effect. As a result, the criminal prohibition on abortion in Canada was struck down. Although the Supreme Court of Canada's decision appears to make it very clear that Parliament likely has the right to impose restrictions on abortion and that it is not the courts' job to "solve the abortion issue", none of the many Parliaments since then appears to have had the inclination, willingness or fortitude to enter into the maelstrom.

86In Morgentaler (1988), the Supreme Court of Canada made the following determinations:

(a) The Charter does impose an obligation on the courts to review the substance of legislation once an impairment of a s. 7 right has been made out.

(b) There is a long-recognized right not to have one's bodily integrity infringed upon by others; under the Charter this has been raised to a constitutional norm.

(c) There may very well be valid reasons for interfering with a person's bodily integrity and Parliament is free to do so as long as any interference conforms to the principles of fundamental justice.

(d) The evidence establishes, "beyond any doubt that s. 251 of the Criminal Code is prima facie a violation of the security of the person of thousands of Canadian women who have made the difficult decision that they do not want to continue with a pregnancy".

(e) The mechanisms set out in s. 251 of the Criminal Code whereby abortions can lawfully be obtained do not conform to the principles of fundamental justice in light of serious problems with real-world access to timely abortions and the lack of meaningful criteria to govern the decision-making process of therapeutic abortion committees.

(f) With respect to the question of whether s. 1 of the Charter can "salvage" s. 251, it was accepted that it was a valid governmental objective for Parliament to legislate to protect both the health and safety of pregnant women and the interests of the foetus, but the means to achieve those objectives do not satisfy the proportionality test set out in R. v. Oakes.

(g) It was not necessary for the purposes of the appeal to "evaluate or assess "foetal rights" as an independent constitutional value".

87In March, 1989 the Supreme Court of Canada dealt with the appeal from the Saskatchewan Court of Appeal's decision in Borowski, supra. Mr. Borowski was granted leave to appeal four months before the Supreme Court of Canada gave judgment on Morgentaler (1988), supra, and the first of his grounds of appeal was the question of whether, "a child en ventre sa mere [has] the right to life as guaranteed by section 7 of the Charter…" Since Mr. Borowski's appeal was based on a challenge to the constitutional validity of certain parts of s. 251 of the Criminal Code (the parts allowing abortions if approved by a therapeutic abortion committee) and since the Supreme Court of Canada in Morgentaler (1988), supra, had ruled all of s. 251 to be unconstitutional, the Supreme Court of Canada found that his appeal to that court was moot. The court specifically expressed "no opinion as to foetal rights", but did note that if it were to consider future abortion legislation, "any rights of the foetus could be considered or at least balanced against the rights of women guaranteed by s. 7."

88That same year the Supreme Court of Canada had to deal with abortion in a different context. In Tremblay v. Daigle, [1989] 2 S.C.R. 530, a father sought (and originally obtained) an injunction to prohibit his former partner from having an abortion. Here again, the Supreme Court of Canada did not address the issue of foetal rights under the Charter of Rights because the case did not involve any state action, which is a precondition to Charter rights being triggered under s. 32 of the Charter. However, the Supreme Court did look at the issue under the Quebec Civil Code and the Quebec Charter of Human Rights and Freedoms, as well as making reference to the common law. It bears noting that section 1 of the "Quebec Charter" grants every "human being" the "right to life, and to personal security, inviolability and freedom". Section 2 provides that "every human being whose life is in peril has a right to assistance" and "Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person, or he has another valid reason."

89In the course of determining the status of a foetus under the Quebec Charter and the Civil Code, the Supreme Court of Canada made the following observation that is of equal application to the present case:

The respondent's argument is that a foetus is an " être humain ", in English "human being", and therefore has a right to life and a right to assistance when its life is in peril. In examining this argument it should be emphasized at the outset that the argument must be viewed in the context of the legislation in question. The Court is not required to enter the philosophical and theological debates about whether or not a foetus is a person, but, rather, to answer the legal question of whether the Quebec legislature has accorded the foetus personhood. Metaphysical arguments may be relevant but they are not the primary focus of inquiry. Nor are scientific arguments about the biological status of a foetus determinative in our inquiry. The task of properly classifying a foetus in law and in science are different pursuits. Ascribing personhood to a foetus in law is a fundamentally normative task. It results in the recognition of rights and duties -- a matter which falls outside the concerns of scientific classification. In short, this Court's task is a legal one. Decisions based upon broad social, political, moral and economic choices are more appropriately left to the legislature.

90The Supreme Court also rejected the contention that a plain linguistic analysis necessarily led to the conclusion that a foetus was a "human being":

This argument is not persuasive. A linguistic analysis cannot settle the difficult and controversial question of whether a foetus was intended by the National Assembly of Quebec to be a person under s. 1 . What is required are substantive legal reasons which support a conclusion that the term "human being" has such and such a meaning. If the answer were as simple as the respondent contends, the question would not be before the Court nor would it be the subject of such intense debate in our society generally. The meaning of the term "human being" is a highly controversial issue, to say the least, and it cannot be settled by linguistic fiat. A purely linguistic argument suffers from the same flaw as a purely scientific argument: it attempts to settle a legal debate by non‑legal means; in this case by resorting to the purported "dictionary" meaning of the term "human being".

91In concluding its assessment of the status of a foetus under the Quebec Charter, the Supreme Court of Canada concluded that the drafters of that Charter had not intended to create foetal rights. In expressing that conclusion, the court raises questions that would seem to have equal force in relation to the Canadian Charter of Rights and Freedoms:

In our view the Quebec Charter , considered as a whole, does not display any clear intention on the part of its framers to consider the status of a foetus. This is most evident in the fact that the Charter lacks any definition of "human being" or "person". For her part, the appellant argues that this lack of an intention to deal with a foetus' status is, in itself, a strong reason for not finding foetal rights under the Charter . There is force in this argument. One can ask why the Quebec legislature, if it had intended to accord a foetus the right to life, would have left the protection of this right in such an uncertain state. As this case demonstrates, even if the respondent's arguments are accepted it will only be at the discretionary request of third parties, such as Mr. Tremblay, that a foetus' alleged right to life will be protected under the Quebec Charter . If the legislature had wished to grant foetuses the right to life, then it seems unlikely that it would have left the protection of this right to such happenstance.

92After a detailed review of various provisions of Quebec's Civil Code, the Supreme Court of Canada concluded that, not only did they fail to support the father's claim that a foetus has juridical personality in Quebec law, in fact they lead to the opposite conclusion. The court then proceeded to consider the treatment of the foetus in Anglo-Canadian law as being potentially instructive even in a civil case emanating from Quebec. That review of the law of abortion in Anglo-Canadian law as well as the status of a foetus in areas such as tort and inheritance largely covers the same ground trod by the Saskatchewan Court of Appeal in Borowski (1987), supra, and reached the same conclusion. This was a 9:0 decision of the Supreme Court of Canada.

93In Winnipeg Child and Family Services (Northwest Area) v. D.F.G., the Supreme Court of Canada had to deal with a case in which a superior court judge had ordered a pregnant woman into the custody of the Director of Child and Family Services until she gave birth because she was addicted to sniffing glue (which can damage a foetus's central nervous system) and two of her previous three children had been born with permanent disabilities. The Manitoba Court of Appeal had overturned the order, but the Director appealed further to the Supreme Court of Canada. Speaking for seven members of a nine-judge panel, McLachlin, J. (as she then was) dismissed the appeal, holding that detaining a pregnant woman to protect her foetus would involve changes to the law that are better suited to the legislative rather than the judicial branch.

94In the course of her reasons, McLachlin, J. made certain comments that are pertinent to my inquiry. It might well be argued that, in light of the result and the mootness of the issue before the Supreme Court of Canada, some of those observations could be characterized as obiter dicta. I do not propose to further lengthen these reasons by engaging in a detailed examination of what is or is not obiter or what effect any such comments might have depending on the speaker and the context other than to observe that when seven members of the Supreme Court speak in a fashion that is consistent with other pronouncements on related matters, disregarding those utterances would seem injudicious and inconsistent with the orderly development of the law.

95In commencing her analysis of whether the law of tort supported the detention and treatment order, McLachlin, J. opened with the following observations:

11 Before dealing with the cases treating the issue in tort law, I turn to the general proposition that the law of Canada does not recognize the unborn child as a legal or juridical person. Once a child is born, alive and viable, the law may recognize that its existence began before birth for certain limited purposes. But the only right recognized is that of the born person. This is a general proposition, applicable to all aspects of the law, including the law of torts.

12 By way of preamble, two points may be made. First, we are concerned with the common law, not statute. If Parliament or the legislatures wish to legislate legal rights for unborn children or other protective measures, that is open to them, subject to any limitations imposed by the Constitution of Canada. Further, the fact that particular statutes may touch on the interests of the unborn need not concern us. Second, the issue is not one of biological status, nor indeed spiritual status, but of legal status.

96After reviewing its own decision in Tremblay v. Daigle, supra, the Supreme Court of Canada held that the foetus on whose behalf the agency had purported to act was "not a legal person and possessed no legal rights", which meant that no court order could validly be made in its favour. The court ultimately decided that judicial modification of the common law of tort to allow for such an order was too fraught with complexity and that any such change ought to be made by the legislature. In the course of that discussion, the court addressed the argument that it should rescind the "born alive" rule and made the following observation:

25 Two arguments are made in favour of this Court abolishing the rule that no legal rights accrue before live birth. The first is that there is no defensible difference between a born child and an unborn child. This is essentially a biological argument. As noted above, the inquiry before this Court is not a biological one, but a legal one: Tremblay v. Daigle , supra . The common law has always distinguished between an unborn child and a child after birth. The proposition that biologically there may be little difference between the two is not relevant to this inquiry. For legal purposes there are great differences between the unborn and the born child, differences which raise a host of complexities.

When the Supreme Court then went on to decide whether or not the court's parens patriae jurisdiction, which allows the court to step into the shoes of the parent in order to protect a child's interests, to unborn children, it noted that the existing law of parens patriae applies only to born children. This is true in Canada, in Britain and in the European Community. Indeed, the trial judge in Winnipeg was the only Canadian case to have extended such oversight to unborn children.

97The inclusion of a foetus in "everyone" in s. 7 of the Charter was also the object of judicial scrutiny in R. v. Demers, a decision of the Court of Appeal for British Columbia. Mr. Demers, like Ms. Wagner, held "sincere and strong views against abortion". He admitted that his protest outside an abortion clinic violated a British Columbia statute, but argued that his protest outside the clinic was both a form of protected expression and an attempt to protect the lives of foetuses, which are, he argued, safeguarded by s. 7 of the Charter. Citing Borowski (1987), Tremblay v. Daigle and Winnipeg, supra, the British Columbia Court of Appeal stated that, "the current law of this country supports the position of the Crown…that a foetus is not included in the word "everyone" in s. 7 of the Charter," and concluded that, "these cases leave no room for this court to entertain the constitutional argument advanced on behalf of Mr. Demers. The courts have made it clear that any preference of foetal rights over the rights of pregnant women as addressed in Morgentaler, supra, is a matter best left to the careful consideration of legislators."

98On reviewing the authorities referred to above, it seems inescapable to me that the Crown comes to this constitutional contest armed with a quiver full of highly relevant and extremely authoritative decisions addressing the issue of foetal rights generally through the closing decades of the last century and the early years of this century. Whether or not those decisions address the issue of foetal rights under s. 7 of the Charter directly, those authorities nonetheless do not bode well for Ms. Wagner's position. What, then, of the evidence she would have me hear viva voce?

Does The "New" Scientific Evidence Proffered Have The Potential to Alter The Equation?

99In response to my request, consonant with authorities such as R. v. Durette, supra, Ms. Wagner proffered the written expert opinions and scholarly works of Dr. Maureen L. Condic and Dr. John M. Thorp, Jr. Each was accompanied by a curriculum vitae reflective of noteworthy achievement and scholarship. While the Crown, in her submissions, made some feints to question the objectivity of the proposed experts, at this stage of the proceedings fairness requires that I take their evidence at face value. What I asked of counsel was that these "will states" address the question of how the science has changed materially since the Supreme Court of Canada abortion cases were decided. If the science is not materially different than what was understood at the time, the current state of the science, e.g. of foetal development, cannot fruitfully be the subject of relevant evidence in a lengthy viva voce hearing.

100Having read the Condic and Thorp materials, I fail to see how they are at all sufficient to their purpose. Each of them at best pays lip service to the most vital question, i.e. addressing how the science has changed since the 1980s. For example, Dr. Condic states:

"Both the scientific data and the social context in which that data is interpreted have changed dramatically over the last 25 years. Uncontested modern scientific evidence clearly demonstrates that the life of a human being begins at sperm-egg fusion, a well-studied biological event that takes less than a second to complete. Based on clear scientific criteria, from the moment of sperm-egg fusion onward, the human embryo is unambiguously a human organism, i.e. a human being."

101Dr. Thorp states:

Since 1989 science has advanced to the point where one can conclude without doubt that the embryo or fetus from the moment of conception onward can be described as a human being. If provided adequate nutrition and exchange of oxygen and carbon dioxide, that new individual will develop in an orderly fashion and emerge from his, her, or their mother as a recognizable human infant. These conditions are the same prerequisites for survival needed by all plants and animals. Advances in genomics, embryonic stem cell research and pregnancy imaging have all contributed to the avalanche of biologic evidence that undergirds this claim.

102These, unfortunately, strike me very much as more conclusory statements than they are evidence. A meaningful answer to the question of how scientific knowledge has changed in the past quarter-century to justify re-visiting a decision of the Supreme Court of Canada requires a statement of what was known then, what is known now, what the differences are and how those differences are material to the precise issue in question. That strikes me as absent from the material provided, other than, as I have noted, in a strikingly conclusory and unsatisfactory form. There is no question that some of the material provided goes into great detail about the fusion of the sperm and egg gametes into a zygote and why, in Dr. Condic's view, that results in the creation of human life within a second of that fusion rather than what she views as the discredited view of some scientists that human life begins at a later point perhaps twenty four hours later (both of which events take place before the woman would have any idea she was pregnant), and it may even be true that scientific knowledge and technology in 1989 were not advanced enough to draw that legally trivial distinction (although I do not see Dr. Condic making even that assertion clearly).

103However, what is material for these purposes is not what Drs. Condic and Thorp say, but rather how what they say is materially different from the scientific understanding of twenty-five years ago. That is what I asked counsel to address in the material to be filed. It goes without saying that science and technology generally have advanced in tens of thousands of ways, since the 1970s and 1980s, but that was not the question. I did not need anyone's assistance to figure that out. One fundamental requirement for all evidence in a trial is that it be material; that fundamental requirement was no less operative in terms of my request of Ms. Wagner's counsel, namely that the proposed evidence demonstrate how the relevant science has changed materially in the intervening decades. While the science and technology available to specialists in the field of human foetal development have undoubtedly advanced by leaps and bounds in a quarter-century, it does not appear to me that the science underlying the fundamental assertion by Ms. Wagner that human life begins at conception has been shown in the material tendered to have altered in any material fashion.

104I have been careful to challenge myself as to whether my various educational and intellectual limitations with respect to the various "-ologies" may lie at the root of my conclusion, but am satisfied that it is not so. The concepts in play here are not such that one has to be in line for a Nobel Prize in embryology to make sense of the material presented. The unfortunate fact for Ms. Wagner in relation to the material presented to me is that the 1980s were not some kind of medico-legal dark ages out of which we have now been elevated into a post-2000 renaissance of discovery. When I look at what Drs. Condic and Thorp say, it strikes me as remarkably similar to the science reflected in materials from the 1980s and even earlier.

105In "Foetal Rights and The Regulation of Abortion" , Martha Shaffer examines two 1980s Supreme Court of Canada decisions ( Borowski (1989), and Tremblay v. Daigle , supra), through an examination of the facta filed by the parties and interveners. For example, Shaffer, summarizes some of the arguments in Borowski(1989) as follows:

Anti-abortionists believe science establishes two irrefutable facts about the foetus. First and foremost, science provides conclusive proof that human life begins at conception and that most of what is unique about an individual is fixed at that point.' In his factum filed at the Supreme Court of Canada, Borowski described the significance of conception in the following terms:

Dr. Lejeune testified that upon fertilization, there are determined the nature and the unique genetic qualities of each of us as an individual human being. At that moment of fertilization, all things are fixed: the color of the eyes, the hair, the skin, the form of the nose and ears, the strength of the person and all characteristics. [64]

Second, science demonstrates that from conception onwards, the foetus is, in physiological and genetic terms, a separate entity from the pregnant woman within whom it exists. Because of this distinctiveness, the foetus cannot be said to be a part of the pregnant woman, but must instead be recognized as an independent human being meriting its own legal protection. Borowski submitted:

That mother and child en ventre sa mere, each is a separate and distinct human being, appears obvious to us today, assisted as we are by modem science and the remarkable expansion of our knowledge of the unborn. Mother and child, each has a different genetic makeup. Often they have different blood types, different sex and differently coloured skin and eyes. They are separate, distinct and unique human beings.

Second, the accounts of foetal development allow opponents of abortion to emphasize that life is a continuum from conception to death, a notion which figures prominently in anti-abortion arguments. Viewing life as a continuum beginning at conception allows opponents of abortion to emphasize the importance of prenatal development, and to claim it as the most significant development period of human life. Borowski, for example, submitted:

"The first seven weeks [after conception] are the most crucial in the life of a child because it is then that all of the major systems of the body come into place.

Borowski reinforced the significance of this period of development by describing its magnitude in scientific terms:

"Dr. Liley described the rapid development of the child from the first cell that comes into being upon fertilization. In a human lifetime, there are 45 generations of cell divisions. These produce the 30,000,000,000 cells that go to make up every adult. Eight of these divisions will have occurred upon implantation of the fertilized ovum in the wall of the uterus. 30 divisions, or 2/3 of the 45 generations of cell divisions that encompass the total development of an individual's life will have taken place within 8 weeks after fertilization. 41 of the 45 divisions will have been completed before birth. More than 90 percent of the development of the human adult is completed by birth. Dr. Liley summarized the significance of this growth as follows:

In development terms we spend ninety per cent of our life in utero and indeed the die is very far cast as to the type of person we are going to be – physically, our intellectual capacities, and all manner of body functions …

The significance of prenatal development leads anti-abortionists to conclude that life in this phase of human existence is worthy of protection.

106When I read, and re-read and re-read again the materials provided by Dr. Condic and Dr. Thorp, I fail entirely to see how the state of human, medical or scientific knowledge relevant to the present issue has been shown to have changed in any material respect from the proposition advanced by Mr. Borowski a quarter century ago. As I said earlier, I do not question that there have been quantum leaps in science and medicine in countless respects in the generation that has passed since those cases, but the arguments and the foundational medical facts look remarkably similar.

107If there has been a material change in medical knowledge in the intervening years, the nature and extent of any such material change is certainly not made out in the material presented. Indeed, I believe it could fairly be said that one could go back another generation, to the time of the pivotal United States Supreme Court ruling in Roe v. Wade, supra, and the same could be said with equal validity:

While it is beyond the scope and objective of this article to engage in a scientific debate, t wo years before the Roe v. Wade decision, a group of 220 distinguished physicians, scientists, and professors submitted an amicus curiae brief to the Supreme Court expressing that science had established that "human life is a continuum..." and that "the unborn child from the moment of conception on is a person...." Motion and Brief Amicus Curiae of Certain Physicians, Professors and Fellows of the American College of Obstetrics and Gynecology in Support of Appellees at 29-30, Roe v. Wade, 410 U.S. 113 (Nos. 70-18, 70-40), 1971 WL 128057 . For more information on the scientific and medical community's view that life begins at conception, see The Human Life Bill: Hearing on S. 158 and H.R. 900 Before the Subcomm. on Separation of Powers of the S. Judiciary Comm., 97th Cong. 7, 14 (1981) (Statement of Micheline Mathews-Roth, Principal Research Associate, Harvard Medical School), where Professor Micheline Mathews-Roth, of Harvard University's Medical School, stated that "In biology and in medicine, it is an accepted fact that the life of any individual organism reproducing by sexual reproduction begins at conception...." Similarly, Jerome Lejuene, M.D., Ph.D., and former professor of genetics at the University of Paris, Sorbonne has stated that "each of us has a unique beginning, the moment of conception...when the information carried by the sperm and by the ovum have encountered each other, then a new human being is defined because its own personal and human construction is entirely spelled out. The information which is inside the first cell obviously tells this cell all the tricks of the trade to build himself as the individual this cell is already...to build that particular individual which we will call later Margret or Paul or Peter, it's already there, but it's so small we cannot see it.... It's what life is, the formula is there...if you allow the formula to be expanded by itself, just giving shelter and nurture, then you have the development of the full person." Jerome Lejeune, The Concentration Can: When Does Human Life Begin? An Eminent Geneticist Testifies (San Francisco: Ignatius Press 1992), p. 145.

108Not only does it appear to me that the proposed evidence filed on Ms. Wagner's behalf fails to demonstrate a material change in scientific knowledge that is capable of changing the legal status of the foetus, it appears to me in light of the foregoing that no such credible medical or scientific evidence likely exists. One might agree or disagree with what conclusions are to be drawn from the science, but any such agreement or disagreement will not hinge on discoveries about foetal development of the past thirty or forty years.

109It has been said before, but it bears repeating, that, while scientific evidence may be one consideration in legal interpretation, it is only one factor and is far from determinative. If climate experts ran the world, their scientific facts would be manifested in laws requiring more trains and fewer cars. If medical officers of health ran the world, the urban speed limit would be 30 km/h in order to almost eliminate fatalities in motor vehicle-pedestrian collisions. On the other hand, if economists ran the world, they might compute that the economic value of lives lost paled by comparison with the greater "efficiencies" of higher speed limits. Experts in animal husbandry would laugh you off the farm if you said that a sheep was "cattle", yet that is precisely what Parliament says in the Criminal Code. That is because legal characterization, legal status and legal limitations are inherently normative processes. To repeat what the Supreme Court of Canada said in Tremblay v. Daigle, supra:

Ascribing personhood to a foetus in law is a fundamentally normative task. It results in the recognition of rights and duties -- a matter which falls outside the concerns of scientific classification. In short, this Court's task is a legal one. Decisions based upon broad social, political, moral and economic choices are more appropriately left to the legislature.

The Rule of Law, The Supremacy of God And International Law

110A medley of arguments was advanced on Ms. Wagner's behalf to demonstrate the rightness of her actions and the wrongness of a system of law that permits abortion, described in her factum as including, "at least four ways to justify why excluding the unborn child from the definition of human being mandates judicial intervention." These included:

(a) "historical protection of the unborn child";

(b) "incompatibility with the Rule of Law";

(c) "incompatibility with the Supremacy of God";

(d) "international law"

I have discussed the issue of "historical protection of the unborn child" above. The record makes it clear that any such protection has at best been spotty, inconsistent and far from absolute. To a large extent, the international treatment of the foetus has been dealt with in similar fashion, so I shall deal with any other relevant "international law" issues briefly in a few footnotes in these reasons. I consider the other issues below.

The Rule of Law

111This country is a constitutional democracy with a written constitution. The Constitution Act, 1982, which contains the Charter of Rights, is self-defined as "the supreme law of Canada". The definition of the "constitution of Canada" in s. 52 of the Constitution Act, 1982 is somewhat open-ended, allowing for the existence of constitutional principles that are not reflected in the Act itself. The preamble to the Charter of Rights itself proclaims that Canada is founded on "the supremacy of God and the rule of law". As is true of all statutory interpretation, but all the more so in constitutional interpretation, the devil lies in giving meaning to those details. As a constitution must be interpreted as a "living tree", those meanings may change over time.

112The "rule of law" not only finds itself in the preamble to the Charter of Rights, its spirit is manifested throughout the document, from the restrictions on the state's powers in relation to citizens, complete with enforcement mechanisms such as the exclusion of evidence or the invalidation of statutes to concepts such as the "principles of fundamental justice" and the requirement that any restrictions to Charter rights be, "demonstrably justified in a free and democratic society".

113The idea that there are certain fundamental unwritten principles that govern all members of society including legislators and which judges are expected to enforce is not particularly new. Chief Justice McLachlin described this idea as follows:

To these questions I would answer as follows. First, unwritten constitutional principles refer to unwritten norms that are essential to a nation's history, identity, values and legal system. Second, constitutions are best understood as providing the normative framework for governance. Seen in this functional sense, there is thus no reason to believe that they cannot embrace both written and unwritten norms. Third – and this is important because of the tone that this debate often exhibits – the idea of unwritten constitutional principles is not new and should not be seen as a rejection of the constitutional heritage our two countries share.

The contemporary concept of unwritten constitutional principles can be seen as a modern reincarnation of the ancient doctrines of natural law. Like those conceptions of justice, the identification of these principles seems to presuppose the existence of some kind of natural order. Unlike them, however, it does not fasten on theology as the source of the unwritten principles that transcend the exercise of state power. It is derived from the history, values and culture of the nation, viewed in its constitutional context.

The Chief Justice goes on to note that these rules bind the legislative, executive and judicial branches. The debate is not so much about whether such norms exist, but what those norms are in relation to any given case where a litigant calls on such norms to his aid.

114The Chief Justice goes on to develop the scope of these binding principles as follows:

This "rich intellectual tradition" of natural law seeks to give the law minimum moral content. It rests on the proposition that there is a distinction between rules and the law. Rules and rule systems can be good, but they can also be evil. Something more than the very existence of rules, it is argued, is required for them to demand respect: in short, to transform rules into law. The distinction between rule by law, which is the state of affairs in certain developing countries, and rule of law, which developed democracies espouse, succinctly captures the distinction between a mere rules system and a proper legal system that is founded on certain minimum values. The debate about unwritten constitutional principles can thus be seen as a debate about the nature of the law itself and what about it demands our allegiance.

Modern democratic theory, as espoused by most developed western democracies, combines two inherently contradictory doctrines. The first is what is often identified as the Diceyan doctrine that it is for Parliament and Parliament alone to establish the law, and, by implication, the fundamental norms upon which it rests. The second is the belief, widely accepted in developed modem democracies since World War II, that legal systems must adhere to certain basic norms. At a minimum they must allow citizens to vote for those who rule them, and they must not kill any (or many, depending on the state) of their citizens. This much we insist on since the Holocaust. Beyond this minimum, there is a variance, although still a solid core of agreement. States, most hold, should not torture their citizens. States should not discriminate on the basis of gender, race or religion. Finally, at the developing fringes of the new natural law, which goes by the name human rights, are other assertions. Not only should states not directly kill their citizens, they should avoid killing them indirectly by famine, medical neglect, and degradation of the environment. (emphasis added)

115Thus, as important as these principles may be, and as essential as it may be that in difficult cases the judge must stand against the winds and rains to uphold them, it is equally important that these principles not be used to create an anarchic judicial oligarchy that blithely undermines the principle of democratic government, the democratic principle being clearly recognized in, for example, sections 1 and 4 of the Charter of Rights:

I return to the question: how can unwritten constitution principles be identified? The answer is that they can be identified from a nation's past custom and usage; from the written text, if any, of the nation's fundamental principles; and from the nation's international commitments. Unwritten principles are not the arbitrary or subjective view of this judge or that. Rather, they are ascertained by a rigorous process of legal reasoning. Where, having regard to convention, written provisions and internationally affirmed values, it is clear that a nation and its people adhere to a particular fundamental principle or norm, then it is the court's duty to recognize it.

Support with respect to the issue of democracy as a competing constitutional value can be found in the language of the Supreme Court of Canada in British Columbia v. Imperial Tobacco Canada Ltd. The same case cites the warning by Strayer, J.A. that, "[a]dvocates tend to read into the principle of the rule of law anything which supports their particular view of what the law should be."

116It seems to me self-evident that the idea of unwritten constitutional principles effectively plays a lesser role in countries with mature, enshrined constitutions than it does in those without a written constitution that explicitly binds the institutions of the state. Those unwritten principles tend to be largely replicated in the text of the constitution, with s. 7 of Canada's Charter of Rights striking me as a prime example. Our written constitution reflects many, many influences, including the drafters' awareness of natural law, civil liberties and the democratic tradition, as well as the depths to which supposedly advanced, civilized and democratic societies might sink, as freshly manifested in the horrors of Nazi Germany and the struggles of the American civil rights movement. Thus, when Lord Cooke suggested, in considering regulations that purported to abrogate the citizen's right to silence, that it would be beyond the legislative competence of the New Zealand Parliament to authorize torture, those words resonate no less strongly in Canada. It might be observed, however, that with an enshrined Charter of Rights, the principle Lord Cooke sought to advance so doggedly and so eloquently in a series of cases in a country without a written constitution equally finds expression in that Charter, so there will be less need to look farther afield to the modern principles of natural law. Likewise, a latter-day Premier Duplessis might find his malicious and maladroit meddling run aground on the provisions of the Charter (if not, indeed, in the more prosaic requirements of administrative law), long before anyone required resort to the unwritten principles of the "rule of law".

117Although Ms. Wagner may find cold comfort in this conclusion, I agree with her that the "rule of law" is, quite apart from the terms of any written constitution, part of the constitutional DNA of this country and that its precepts must be abided by and must be applied by judges no matter how strong may be the prevailing winds or how challenging the social or political environment in which an issue arises. "Rule by law", in which palpably immoral behaviour affecting basic rights of others may be entirely lawful, is indeed, as Ms. Wagner argues, the hallmark of totalitarian and despotic states rather than of our own legal and constitutional history.

118Where I disagree with Ms. Wagner is that I do not think it can fairly be said that the "rule of law" dictates the conclusion she so fervently advances. In the context of the present debate, I cannot see anything that the idea of the rule of law adds to the discussion. The core question is whether or not the foetus has the absolute status as a human being and enforceable rights that go along with it that Ms. Wagner asserts it has. The answer to that question lies in the process I have gone through under the Charter, which effectively mimics the language of Chief Justice McLachlin's speech, supra, that:

[w]here, having regard to convention, written provisions and internationally affirmed values, it is clear that a nation and its people adhere to a particular fundamental principle or norm, then it is the court's duty to recognize it.

119The simple reality is that none of those pre-conditions has been satisfied by Ms. Wagner. The principle she advocates, effectively that all abortion is murder, a crime against humanity and a form of genocide, is undoubtedly sincerely and deeply held, but that contention lacks affirmation in our history or in universal or international values. Acceding to her requested interpretation does not require the judicial courage she says it requires; it requires instead a dreadful and odious judicial unilateralism that would itself be anathema to the rule of law on which Ms. Wagner calls in aid.

The Supremacy of God

120Ms. Wagner also points to the Charter's preamble, which recognizes the "supremacy of God", and from there she points to the Fifth Commandment in the Old Testament, which forbids murder, which she says encompasses the unborn. The significance and effect of those three words has received precious little attention from the Supreme Court of Canada, or indeed from any courts at all. A single judge of the Court of Appeal for British Columbia has gone so far as to characterize the "supremacy of God" preamble as a "dead letter".

121Whether or not those words in the preamble will prove through the centuries to be little more than window-dressing, remains to be seen, although as I have noted, thus far the seed appears to have fallen on stone rather than on fertile and nourishing soil. The preamble received perhaps its most robust (and more than mildly Eurocentric), interpretation in the Alberta Court of Appeal dissenting reasons in R. v. Big M. Drug Mart, a case from the Charter's infancy dealing with Sunday-closing legislation. In that case the two dissenting judges opined:

[113] I do not believe that the political sponsors of the Charter intended to confer upon the courts the task of stripping away all vestiges of those [European and Western] values and traditions, and the courts should be most loathe to assume that role. With the Lord's Day Act eliminated, will not all reference in the statutes to Christmas. Easter, or Thanksgiving be next? What of the use of the Gregorian Calendar. Such interpretation would make of the Charter an instrument for the repression of the majority at the instance of every dissident and result in an amorphous, rootless and Godless nation contrary to the recognition of the Supremacy of God declared in the preamble.

That rare, robust and dissenting application of the "supremacy of God", however found no echo in the reasons of the majority, nor in the reasons of the Supreme Court of Canada, which gave the "supremacy of God" mere passing mention, preferring instead to focus on the diversity of religious freedom protected by s. 2(a) of the Charter . Indeed, I believe that a fair reading of the reasons of Dickson, C.J.C. clearly recognizes that "freedom of religion" also encompasses "freedom from religion".

122O'Sullivan v. Canada (M.N.R.) was a case in which a taxpayer sought to withhold fifty dollars from his income tax because some of the money would be used to fund abortions. Muldoon, J. provides one colourful perspective on the "supremacy of God" preamble, as follows:

16 …. The principles based upon the supremacy of God (and its companion basis, the rule of law) are not stated in the preamble but may, in part be found, or logically inferred from the Charter 's text and the historical roots of Canada which also evinced those principles.

17 What does the recognition of the supremacy of God mean in constitutional and legal terms? After all, the supremacy of God is recognized by people of many similar and different religions; but their professed worship of God does not prevent them from killing, maiming and torturing each other, including, in many instances, their own co-religionists. Did the inclusion in Canada's constitution of recognition of the supremacy of God mean to make a theocracy of Canada? Hardly. Had the expression been inserted about a century or more, ago, it might have been taken to mean that Canada was a Christian State, or kingdom. Since the first settlement of western Europeans, at first almost exclusively the French, in this land nearly 400 years ago, the religions of North American Europeans were those of western Europe, principally England (later Britain) and France. The Roman Catholic faith to which the taxpayer here adheres, was implanted from the beginning in the early 1600's in New France, which was a virtual theocracy. The arrival of the British brought Protestantism, but the overwhelmingly Christian aspect of the population remained. So ingrained was the popular assumption of the eternally Christian complexion of the population, that whereas minority Roman Catholic and Protestant separate schools were constitutionally recognized, the majority were always content to find their educational formation imparted in public schools. It was thought then, and never foreseen otherwise, that the Canadian public would always remain nearly 100% Christian. So, the taxpayer's religious beliefs and principles are well known in history and generally familiar to the population of Canada. Nevertheless, the late amendment to the Charter in 1981 cannot be construed to have converted Canada into a Roman Catholic theocracy, a Mennonite theocracy, an Anglican theocracy or a Jehovah's Witnesses' theocracy any more than Canada was thereby converted into an Islamic theocracy (whether Sunnite or Shiite), a Hindu theocracy, a Sikh theocracy, or a Buddhist theocracy.

18 What then is meant by this preamble? Obviously it is meant to accord security to all believers in God, no matter what their particular faith and no matter in what beastly manner they behave to others. In assuring that security to believers, this recognition of the supremacy of God means that, unless or until the Constitution be amended -- the best of the alternatives imaginable -- Canada cannot become an officially atheistic State, as was the Union of Soviet Socialist Republics or as the Peoples' Republic of China is understood to be. Some may see little difference between an atheistic State and a secular State, but it is apparent that when the former begins, as several have done, to enforce its basic principles, it must thereby suppress theistic religions and the believers who practise such religions. The fact that the political "philosophy" with its "party line" is a non-theistic religion never deters those who lust for political power and control. A secular state just leaves religion alone, with one exception, founded on pure reason.

19 The preamble to the Charter provides an important element in defining Canada, but recognition of the supremacy of God, emplaced in the supreme law of Canada, goes no further than this: it prevents the Canadian state from becoming officially atheistic. It does not make Canada a theocracy because of the enormous variety of beliefs of how God (apparently the very same deity for Jews, Christians and Muslims) wants people to behave generally and to worship in particular. The preamble's recognition of the supremacy of God, then, does not prevent Canada from being a secular state.

20 Indeed, section 1 of the Charter directly defines Canada in purely secular terms by guaranteeing

1... the rights and freedoms set out in it subject only to such reasonable [but not, or not necessarily, religious] limits prescribed by law [not religion] as can be demonstrably justified [again, reason, not necessarily religion] in a free and democratic society. [Underlining added.]

Thus, defining Canada as a "free and democratic" society is to avoid defining it in religious terms such as "très chrétien" or "Islamic", or the like.

123It is certainly a much easier task to insert such words into a preamble than it is to apply and interpret them. Obvious questions arise, such as "whose God?" Ms. Wagner refers to a Judeo-Christian commandment, which is itself silent on the issue of when human life begins, but even accepting her interpretation of it, Canada is immeasurably more complex than that. Different organized religions adopt different views with respect to the status of the foetus at different times in its growth. Within a given organized religion, whose interpretation governs? What of those who believe in God, but who do not ascribe to any organized religion? What of those who do not believe in God, given that, as much as the preamble refers to God's supremacy, s. 2 of the Charter , labeled "Fundamental Freedoms," lists freedom of conscience, religion, thought, belief, opinion and expression as protected values?

Conclusion With Respect To The Legal Status of the Foetus as a Person

124It is not for me to presume to speak for the Supreme Court of Canada. It is, however, my role as a trial judge to assess whether or not to permit a full evidentiary hearing on the constitutional issues advanced by Ms. Wagner. When I consider and consider and consider again the deep and broad field of jurisprudence from the Supreme Court of Canada and various provincial courts of appeal on issues that strike me as inextricably intertwined with the merits of Ms. Wagner's argument about the legal status of the foetus under s. 7 of the Charter, I cannot rationally conceive of any way in which she can succeed. It may fairly be argued on her behalf that the Supreme Court of Canada has not definitively ruled on the precise question of whether a foetus is a "human being" or is captured within the word "everyone" or has an independent right to life under s. 7 of the Charter, but the authorities cited above demonstrate that any such contention is so hemmed in by authority from the Supreme Court of Canada and various provincial courts of appeal and various courts around the world that, without a dramatic turnabout on the part of the Supreme Court of Canada, she could not possibly prevail. I cannot read the Supreme Court of Canada decision in Morgentaler (1988), supra, as conceivably allowing room for the Supreme Court to find in favour of the absolutist foetal right to life/status as a human being advanced on Ms. Wagner's behalf. I cannot imagine that, if the Supreme Court of Canada even remotely allowed for the possibility that status as a human being inured at the moment of conception, meaning that the act of abortion would be murder, that they would have ignored that possibility in deciding Morgentaler (1988) and Borowski (1989), supra. Morgentaler (1988) specifically recognized a constitutional right on the part of women to terminate pregnancies, a right that cannot co-exist with the absolute status of a foetus as a "human being" or "everyone" from the moment of conception as urged by Ms. Wagner. All of that would have been inescapably obvious to the Supreme Court of Canada in the late 1990s and it is fatal to the position advanced by Ms. Wagner before me. As I have said before, the scientific evidence presented to me was not capable of changing the outcome.

Standing

125There was much Sturm und Drang in this case over the issue of whether or not Ms. Wagner had standing to challenge s. 223 of the Criminal Code, which defines when legal personhood begins. It was her contention in her Amended Notice of Constitutional Question that s. 223 of the Code was of no force or effect by virtue of s. 52 of the Charter. It was argued by the Crown that Ms. Wagner had neither private standing (i.e. that she was not directly affected) nor public interest standing (i.e. that she is not directly affected but has a genuine or special interest in the validity of the impugned law). Given that the issue of standing has very much been overtaken by other determinative conclusions in this case, I do not propose to dwell long on that issue, nor to drill down deep into the not entirely consistent jurisprudence on that topic.

126The law of standing has important public policy concerns at its heart. If there were no limitations on standing, the courts would become a battleground for every manner of litigious or mischievous busybody, thereby misdirecting scarce resources required for actual disputes, criminal and otherwise, and increasing the danger of important issues being decided without a proper factual foundation. It is especially important that courts not decide constitutional issues without such a background.

127The law of public interest standing was recently and comprehensively reviewed by the Supreme Court of Canada in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society. The following excerpts of the judgment of Cromwell, J. bear noting:

[ 1 ] This appeal is concerned with the law of public interest standing in constitutional cases. The law of standing answers the question of who is entitled to bring a case to court for a decision. Of course it would be intolerable if everyone had standing to sue for everything, no matter how limited a personal stake they had in the matter. Limitations on standing are necessary in order to ensure that courts do not become hopelessly overburdened with marginal or redundant cases, to screen out the mere "busybody" litigant, to ensure that courts have the benefit of contending points of view of those most directly affected and to ensure that courts play their proper role within our democratic system of government: Finlay v. Canada (Minister of Finance) , 1986 CanLII 6 (SCC) , [1986] 2 S.C.R. 607 , at p. 631 . The traditional approach was to limit standing to persons whose private rights were at stake or who were specially affected by the issue. In public law cases, however, Canadian courts have relaxed these limitations on standing and have taken a flexible, discretionary approach to public interest standing, guided by the purposes which underlie the traditional limitations.

[ 2 ] In exercising their discretion with respect to standing, the courts weigh three factors in light of these underlying purposes and of the particular circumstances. The courts consider whether the case raises a serious justiciable issue, whether the party bringing the action has a real stake or a genuine interest in its outcome and whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court: Canadian Council of Churches v. Canada (Minister of Employment and Immigration) , 1992 CanLII 116 (SCC) , [1992] 1 S.C.R. 236 , at p. 253 . The courts exercise this discretion to grant or refuse standing in a "liberal and generous manner" (p. 253).

42To constitute a "serious issue", the question raised must be a "substantial constitutional issue" ( McNeil , at p. 268) or an "important one" ( Borowski , at p. 589). The claim must be "far from frivolous" ( Finlay , at p. 633), although courts should not examine the merits of the case in other than a preliminary manner. For example, in Hy and Zel's , Major J. applied the standard of whether the claim was so unlikely to succeed that its result would be seen as a "foregone conclusion" (p. 690). He reached this position in spite of the fact that the Court had seven years earlier decided that the same Act was constitutional: R. v. Edwards Books and Art Ltd. , 1986 CanLII 12 (SCC) , [1986] 2 S.C.R. 713 . Major J. held that he was "prepared to assume that the numerous amendments have sufficiently altered the Act in the seven years since Edwards Books so that the Act's validity is no longer a foregone conclusion" ( Hy and Zel's , at p. 690).

128In a case in which many significant issues were argued vigorously, the challenge to Ms. Wagner's standing to advance her constitutional complaint also gives rise to the recurring legal conundrum of the chicken and the egg. Where the Crown argues that Ms. Wagner has no plausible legal argument to advance and, in any event, she has no right to advance the argument, what is the correct order of proceeding? It seems to me that the issue of standing and the issue of reasonable prospect of success or "serious issue" as it has alternately been described in the cases, (or reasonable cause of action in the civil context) overlap to some extent, namely that both require consideration of the viability of the applicant's claim. The decision of the Court of Appeal for Ontario in Energy Probe v. Canada (Attorney General) supports this conclusion. The gatekeeper function of the "serious issue" test in public interest standing is inescapably clear from the language of Downtown Eastside Sex Workers, supra. However, courts also enjoy a gatekeeper function in other respects that provide additional means of avoiding clogging up the courts with mischievous litigants or specious and repetitive arguments, including the ability to refuse a viva voce hearing referred to elsewhere in these reasons and the "air of reality" test that is commonly applied before issues are put to a jury.

129It should be clear that, in light of the history of the courts' treatment of "foetal rights" and related issues, I find it exceeding difficult to conclude that Ms. Wagner's constitutional contentions are "far from frivolous" or that they raise "a serious justiciable issue", which conclusion would disentitle her from public interest standing. I suspect that limitations might validly be placed on "abortion on demand", i.e. I suspect that Parliament has the competence whereby it could, if it had the stomach for the debate, enact constitutionally valid limitations on abortion, such as fixing a date beyond which abortions could not be performed, but Ms. Wagner's absolutist contention, namely that abortion is murder, thereby giving her (or anyone else) the right to intervene when, where and as they see fit, strikes me as entirely unsustainable for the reasons I set out elsewhere in this judgment.

130Given her decades-long history, I do think that Ms. Wagner has "a real stake or genuine interest" in the outcome of the constitutional issue and would likely satisfy that criterion with respect to public-interest standing. With respect to the final criterion, there is some resonance to the argument that there is nobody else to speak for the unborn, but the availability of other litigation options discussed elsewhere means that, in my view, she would fail to satisfy that requirement for public interest standing.

131With respect to personal standing, it was suggested to me that it is one thing for a criminal defendant to challenge the law under which she was charged, but another thing entirely for her to challenge an "unrelated" provision (such as the definition of when a particular legal status begins) and that she generally lacks standing to assert a violation of someone else's rights.

132It is true that Ms. Wagner was not challenging the law criminalizing mischief or the law criminalizing breach of court orders; rather, she was contending that she had a "defence of others" defence to those charges and that the statutory limitation on the meaning of "others" that is implicitly applicable through s. 223 of the Criminal Code narrowed her defence in a way that was unconstitutional: she says that unborn foetuses have an inalienable, undeniable and absolute claim to the status of human beings and to personhood and that, as they are incapable of defending themselves, she is entitled to fill the void.

133I can see nothing in the cases referred to me to support a contention that, as a criminal defendant in the circumstances of this case, she lacks the standing to raise the alleged constitutional flaw in her defence. In the absence of compelling and directly binding authority, I would find any such purported limitation to be both peculiar and disturbing. It strikes me as one thing to conclude that an itinerant, occasional occupant of another's apartment lacks standing to challenge a search of that apartment even where it uncovers evidence that will be tendered against the itinerant, and an entirely different thing to deny a criminal defendant an opportunity to challenge the constitutionality of a Criminal Code provision (s. 223) that narrows the applicability of another Criminal Code provision (the old s. 37 or the new s. 34) that, depending on the constitutional interpretation, might or might not afford the defendant a defence against criminal liability (leaving aside, of course, the fact, as discussed elsewhere in these reasons, that her constitutional argument has zero lift).

134The cases on standing in relation to s. 8, s. 24, etc. of the Charter, which deal with alleged constitutional violations arising from particular state actions, strike me as less helpful in this analysis than cases where s. 52 is relied on to argue that a legislative provision is itself unconstitutional. It strikes me as hard to accept that a corporation, which has no soul and which by definition has only one fervent belief, i.e. the enrichment of its shareholders, can rely on the constitutional freedom of religion to strike down a statute (i.e. relying on the religious rights of others or the rights of others to be free of religion-based constraints) as in R. v. Big M Drug Mart, supra, but Ms. Wagner cannot rely on the purported right to life of a third party to argue the invalidity of s. 223 of the Code. This, of course, stands separate and apart from the actual merits of the constitutional argument advanced. Accordingly, although it is of no practical benefit to Ms. Wagner in the circumstances, I would be inclined to agree with her that, leaving aside for present purposes the patent weakness of her constitutional argument, in the circumstances of this case she has personal standing to challenge s. 223 of the Criminal Code.

The Collateral Attack Rule: A Further Barrier to Ms. Wagner's Defence on the Breach Probation Counts

135Ms. Wagner faced two types of charges. One was the charge of mischief interfering with private property. The others were charges that her conduct at the abortion clinic violated various probation orders that had been made against her. Quite apart from any issues that may arise from the status of a foetus in Canadian law or the applicability of one or both of the versions of "self-defence of others", I do not see how Ms. Wagner can raise any of those arguments in relation to the breach of probation charges.

136Ms. Wagner relied heavily on the importance of the rule of law in her defence. It is one of the pillars of the rule of law that court orders must be respected. Thus, in the early wiretap case of R. v. Wilson, the Supreme Court of Canada held (at p. 599):

It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally—and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment.

137Coming closer to the facts of the present case, the judgment of the Court of Appeal for Ontario in R. v. Domm, dealt with a defendant who had chosen to violate a publication ban. In the course of disposing of the appeal, Doherty, J.A., speaking for the court, observed:

The rule against collateral attack on court orders has been consistently applied in criminal proceedings where the charge involves an alleged breach of a court order. For example, in R. v. Reed (1994), 1994 CanLII 1634 (BC CA) , 91 C.C.C. (3d) 481 at p. 499, 24 C.R.R. (2d) 163 (B.C.C.A.) , the court held that the accused could not defend against a charge of breaching a term of his probation by arguing that the term was invalid.

138I know as a matter of law that Ms. Wagner had the right to appeal the terms of the probation orders imposed upon her in earlier cases. If limitations in those orders on her ability to attend at or near abortion clinics were, in her view, invalid and unenforceable because those limitations impinged upon the s. 7 Charter rights of the unborn, or on her own supposed right to vindicate those foetuses' "right to life", the time and place to make those arguments was, first, before the trial judge, and thereafter to the summary conviction appeal court or the Court of Appeal.

139Ms. Wagner's contention that the probation orders were constitutionally invalid does not change the outcome. In Canada (C.H.R.C.) v. Taylor, Taylor was convicted of contempt for violating a cease-and-desist order of the Canadian Human Rights Commission in relation to hate speech. The majority of the Supreme Court of Canada upheld the validity of the governing statute. McLachlin, J, (as she then was), speaking for the minority would have found the provision allowing the commission to make the cease-and-desist order to be unconstitutional, but nonetheless held that the contempt convictions should stand. She held that there was no authority to suggest that a person was entitled to disobey a court order made under a law that was unconstitutional:

In my opinion, the 1979 order of the Tribunal, entered in the judgment and order book of the Federal Court in this case, continues to stand unaffected by the Charter violation until set aside. This result is as it should be. If people are free to ignore court orders because they believe that their foundation is unconstitutional, anarchy cannot be far behind. The citizens' safeguard is in seeking to have illegal orders set aside through the legal process, not in disobeying them. (emphasis added)

140In committing the breaches of the probation orders and then coming to trial and arguing that the orders were constitutionally infirm, Ms. Wagner chose the "breach first, challenge later" path. All of the arguments she made before me could have been made much more efficiently before the judges who made those probation orders and before the appropriate appellate court if those arguments did not find favour at trial. In light of the rule against collateral attack, the path she chose was not open to her. Thus, even if there were merit to her argument about the status of a foetus as being part of "everyone" protected by s. 7 of the Charter and assuming that she could fit herself within either the older or newer definitions of "self defence of others", that argument would not safeguard her from conviction on the breach of probation counts.

141During argument it was suggested to me that the law would surely not punish a passer-by for running into a burning house and saving its occupants from death if he did so in violation of a court order prohibiting him from being in that house. I agree. If there were a police officer sufficiently lacking in judgment to lay a breach charge in those circumstances and a Crown Attorney sufficiently lacking in judgment to take the matter to trial, I am sure that the law of necessity, as detailed herein, would vindicate the passer-by's breach of the order. But it is facile to suggest Ms. Wagner was in the same position as that person. Unlike the passer-by, she attended at the clinic, a place she knew she was not allowed to be, with the full intention of breaching the court order. No social harm arises from the selfless passer-by running into the burning building. By contrast, Ms. Wagner's attendance at the clinic showed a wilful disregard of a law she was fully aware of, which she disagreed with and which she chose to flout, disregarding the interests of the clinic's patients, their companions and the clinic's operators, which the highest court in the land has long deemed worthy of protection.

142It was argued in Ms. Wagner's defence that if the passer-by were in Nazi Germany and the place he entered was a concentration camp and the reason he entered was to save the lives of inmates, who were not considered human by the laws of that time and place and who were lawfully incarcerated under those laws, and he was under a court order not to attend there, then the passer-by would act with the same advance intention as Ms. Wagner. This is true, but irrelevant for a different reason. While the reaction of the community of nations to what was happening in Nazi Germany in the 1930s may not have been our finest hour, there was no room for debate, when all of the facts were known of what had happened under that regime, that the atrocities committed and the dehumanization of various populations by reason of race or religion or sexual orientation, was a crime against humanity. It did not require "victor's justice" to reach that conclusion. A court operating under the rule of law, would excuse the person who attended to save the prisoners by virtue of the doctrine of necessity. There is, however, no established recognition of the equivalent status of the foetus in our laws and traditions or in the laws and traditions of the community of nations, as set out elsewhere in these reasons.

Mistake of Fact

143After I notified counsel that I would not hear the viva voce evidence, it was argued on Ms. Wagner's behalf that I still had to allow the viva voce evidence on her trial because the question of the meaning of "anyone" still required to be decided on the merits of the trial for the purpose of assessing a possible mistake of fact argument on Ms. Wagner's behalf and for various other reasons. Failing to allow the expert evidence for those purposes would violate Ms. Wagner's right to full answer and defence.

144Although it was dressed up in different clothing, (seemingly as an after the fact argument, although that in itself is not fatal, merely regrettable) this argument changes nothing. It was a palpable effort to sneak the viva voce evidence in through the window after the doors had been closed. The very notion that Ms. Wagner was operating under a mistake of fact strikes me as entirely disingenuous. The question of the legal status of the foetus is clearly a question of law. If there is anyone in the country who is familiar with that definition, Ms. Wagner, with her single-minded focus on the rights of the unborn, is that person; she just fervently disagrees with it. As for what was going on in the clinic, Ms. Wagner knew what its activities were, she went there precisely because of her opposition to those activities and there was no error at all in her understanding of the underlying facts.

Conclusion

145In Morgentaler (1975), supra, the Supreme Court of Canada found that the then s. 251 of the Criminal Code did not pass constitutional muster because it lacked the necessary balance. The Supreme Court did not go so far as to say that there was no room for legitimate state control of abortion; indeed it seemed to imply that such room did in fact exist. That decision, and the many that followed it, were part of the respectful constitutional dialogue that ought to exist among executives, legislatures and courts in any constitutional democracy. The reality, however, is that for the past quarter century Parliament and the legislatures have remained uncharacteristically mute. The reality underlying that legislative silence may be that while "judicial activism" is at some times in history a convenient bogeyman for certain parts of the legislative and executive branches, at other times judicial enforcement of constitutional values affords those branches of government a convenient means to duck and cover. A cynic might wonder if it is sometimes handy to have judges' skirts to hide behind when a political issue is sufficiently divisive within society or is otherwise politically inconvenient.

146As the Supreme Court of Canada observed in Morgentaler (1975), supra, it is not the courts' job to "solve" the abortion problem, any more than it is the courts' job to solve various other complex social issues. It is the courts' job under the constitution adopted thirty-three years ago to rule on any fatal constitutional flaws in legislation and, generally, to require Parliament to come up with a constitutionally compliant scheme instead. The authorities and underlying history suggest that Parliament and the legislatures likely do have a constitutionally legitimate field of play within which they can regulate abortion. By way of purely hypothetical example only, Parliament might choose severely to limit the right to abortion after a particular point in the foetus's development and the constitutional balancing of societal and private interests involved might well lead to the conclusion that Parliament got the balance right. That is an issue for another case. The choice to do nothing in relation to the abortion issue is, however, a choice that is open to legislators and that is largely a political choice, unless doing nothing itself offends constitutional values. That, too, is an issue for another case.

147Coming back to this case, however, there is no realistic basis upon which the effectively absolutist view espoused by Ms. Wagner can prevail. That position entirely lacks balance and entirely lacks historic or legal foundation. And while it might be the view of some in the abortion debate that "extremism in the defence of virtue is no vice", the obviously conflicting interests inherent in the abortion issue mean that balance is the sine qua non of a constitutionally sound regime. While it may have had the purest of motivations, Ms. Wagner's invasion of the abortion clinic lacked balance and failed to respect the legitimate interests of those inside.

148Ms. Wagner chose to place herself above the law and sought to impose her views and her will on the patients and operators of the abortion clinic. She has chosen to have a trial, which is every defendant's right. For Ms. Wagner, however, the defendant at the trial was Canada's law (or lack thereof) on abortion and the law's failure to accord the full status, rights and protections of a human being to the unborn. That contention, rather than the "who, what, where and when" of most trials was the focus of her attention and it informed each of the legal issues raised in her defence. On the evidence before me, I was satisfied of Ms. Wagner's guilt on each of the charges beyond a reasonable doubt, including the following conclusions:

(a) That I was entitled to require her to make an "offer of proof" to support a claim that the nature of scientific knowledge now is sufficiently materially different now than twenty-five years ago that those differences could change the legal status of the foetus;

(b) That the materials presented as the offer of proof were not at all adequate to the task;

(c) That the argument about the legal status of the foetus could not succeed;

(d) That s. 223 of the Criminal Code does not offend against the Charter of Rights;

(e) That neither the old s. 37 nor the new s. 34 of the Criminal Code could, for the reasons elaborated herein, insulate Ms. Wagner's conduct from criminal liability;

(f) That the law of necessity was not available to insulate Ms. Wagner's conduct from criminal liability;

(g) That the Crown had proved Ms. Wagner's guilt on each of the charges beyond a reasonable doubt (indeed her factual guilty hardly seemed in dispute), including disproving the defence of others and necessity arguments.

149For these reasons, Ms. Wagner's constitutional arguments were dismissed and I found her guilty of all of the charges.

150I am indebted to counsel for their hard work, advocacy and civility throughout.

Fergus O'Donnell, J.

12 February, 2015