Court File and Parties

Court File No.: Toronto

Date: 2015-03-03

Ontario Court of Justice

Between:

Her Majesty the Queen – Respondent

— and —

Mary Wagner – Applicant

— and —

Women's Care Clinic – Third Party

Before: Justice Fergus O'Donnell

Reasons on Third-Party Records Application

Counsel

Ms. Tracy Vogel – for the Crown

Mr. Charles Lugosi – for the defendant, Mary Wagner

Mr. Eli Mogil – for the third party, Women's Care Clinic

Fergus O'Donnell, J.

Overview

[1] Mary 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, which required her to keep the peace and be of good behaviour and, more specifically, prohibited her from being on the premises of any abortion provider in Ontario. Ms. Wagner believes that abortion involves the termination of human life.

[2] Ms. Wagner brought an application for production of the records of the Women's Care Clinic, the abortion clinic visited by Ms. Wagner on 15 August, 2012. In that application, Ms. Wagner sought, "all medical records, counselling records, identities and current contact information for the 15 patients….". In addition, Ms. Wagner sought contact details for clinic staff.

[3] The rationales advanced by Ms. Wagner in her notice of application included the following:

(a) That there is conflicting evidence about precisely what Ms. Wagner did while she was in the clinic so her lawyer needed to interview all the witnesses to ensure full answer and defence.

(b) That details of the surgical or other methods used by the clinic on each patient were relevant to the issue of whether or not, assuming the foetus to be a human being, what was done to each foetus was a fatal assault. This was presented in the application despite an explicit concession by the applicant that the Crown had conceded that the clinic patients Ms. Wagner approached were pregnant and did proceed to terminate their pregnancies.

(c) That the records sought would show that Ms. Wagner was not violent at any time and that the foetuses of the patients were in imminent danger, all of which was purportedly relevant to Ms. Wagner's argument that she acted in "self-defence of others".

The Evidence

[4] I had the benefit of Ms. Wagner's affidavit, as well as an affidavit from Dr. Saira Markovic, the medical director of the Women's Care Clinic.

[5] After setting out the foundations of her beliefs and her history in the pro-life movement, Ms. Wagner's affidavit included the following details:

(a) She waited in the corridor outside the clinic and "gained access to the waiting room by following two people inside".

(b) She approached a young woman, offered her roses and told her there was support available for her and her baby. Within seconds, an employee appeared and told her loudly to leave. Ms. Wagner continued talking to the young woman until she "indicated she was not open to further communication."

(c) Ms. Wagner then moved on to the couple she had followed through the door, offering them roses and support, but not getting any response. Another employee came in and told Ms. Wagner she had no right to be there and she had to leave. The employees took the two couples to an adjoining room.

(d) Ms. Wagner told an employee behind a glass wall, quietly and calmly, that she should find other work. One of the employees yelled at her and cut Ms. Wagner off when she tried to reason with her. Ms. Wagner raised her voice enough to tell people in the second waiting area that help was available to them and "don't do this".

(e) Two of the employees then pulled Ms. Wagner out of the clinic and into the public hallway.

(f) While in the hallway, Ms. Wagner said she was berated by an angry older woman who had come out of the clinic. Ms. Wagner continued to try to speak with additional visitors to the clinic, but staff ushered them inside too quickly for her to say much to them.

(g) The police arrived about ten minutes later, removed Ms. Wagner from the building and then arrested her.

[6] Dr. Markovic's affidavit attested to the following details:

(a) She is the medical director of the clinic.

(b) The clinic's video monitoring system records events in the two clinic waiting rooms and in the building corridor leading to the clinic. The system has capacity for two weeks' recording, after which the disks are automatically overwritten. The police did not request the video until "very recently" (based on the date of the affidavit, about a year after the alleged offences).

(c) Privacy is extremely important to the clinic's clients, most of whom attend for abortion services. "Their decision to come to the Clinic is often the most emotional and challenging one of their lives." Most patients have told nobody in their family about their pregnancies. Some are rape victims; some are in their early teens.

(d) The maintenance of confidentiality of both patients' identities and patients' actual health records is extremely important. The clinic's website is set up so that clients can e-mail the clinic without leaving any email trace on their own computers (i.e. using an online form).

(e) Of the fifteen patients in the clinic waiting rooms, three were there for post-abortion check-ups. The other twelve were there for pre-abortion counselling and abortions and went ahead with those abortions as scheduled after Ms. Wagner was removed.

(f) The records sought by Ms. Wagner had been compiled and provided to the clinic's counsel so that they would be readily available in the event that I ordered them produced.

The Application

[7] The scope of the application changed with the passage of time. The written application sought:

(a) All medical records, counselling records and contact information for the fifteen patients at the clinic that morning

(b) Employee contact information, statements, incident reports, security video, etc.

[8] During the course of the argument, the nature of the materials sought changed. For example, Mr. Lugosi professed interest in the clinical processes used for the abortions, which he said was relevant to his client's intended defence under s. 37 of the Criminal Code. There was then a certain amount of colloquy among Mr. Lugosi, Ms. Vogel and myself over precisely what the Crown was willing to admit had happened at the clinic and what Mr. Lugosi felt he needed either to have admitted or to prove in order to be able to advance Ms. Wagner's "defence of others" argument. Much of this "he said, she heard" to-ing and fro-ing seemed to be rooted in the linguistic thicket surrounding abortion to which I referred in an earlier footnote. "You say tomayto, I say tomaato", was replaced in this case by the immeasurably more emotive, "you say kill, I say terminate, you say person, I say foetus." I was not sophisticated enough to follow this argument, or at least to comprehend its relevance because it seemed inescapable to me that, without either choosing sides or doing any disservice to the strongly-held views of either side, the bottom line was that twelve pregnant patients had gone to the clinic that morning and twelve non-pregnant patients had left the clinic after the "procedure" was carried out. If one were to assume for the sake of the O'Connor application that those foetuses were persons, which it seemed to me was entirely appropriate for the immediate purpose, then it did not seem to me that there would be much room to argue that the foetuses/persons had been terminated/killed and that it is generally rather hard to kill someone without assaulting them and thus engaging the language of section 37 of the Criminal Code.

[9] In any event, after a bit of backwards and forwards referred to above, we managed to come to the point where the appropriate understandings were reached during argument, thus making the nature of the procedure irrelevant, or perhaps, to be more precise, all agreeing that the nature of the procedure had never really been relevant to anything all along. This removed medical records from the equation and "limited" Ms. Wagner's request to contact information vis a vis the clients, companions and employees. As for the issue of incident reports, security video and the like, it was clear from Dr. Markovic's affidavit that there were no incident reports and that the security video was irretrievably lost. Mr. Lugosi made it clear during argument that, although he had specifically applied for production of the security videos, he was not going to bring a Carosella application in relation to the clinic security videotape, which the police had failed to secure. Ms. Wagner wanted instead to have, "this case go ahead on the merits." I think it is inescapable that to Ms. Wagner "the merits" were not the usual guilt or innocence in this case but rather the legal status of what she construes to be the innocents whose existence is terminated by abortion.

[10] The determination of this application is governed by the Supreme Court of Canada decision in R. v. O'Connor. I do not propose to set out all of the mechanical steps delineated in that decision since few of them are at all relevant to the decision I had to make with respect to disclosure of the records sought. For present purposes, O'Connor envisages a two-part test, with the first branch addressing the likely relevance of the information sought. This is not a particularly burdensome standard for a defendant in a criminal trial, but should serve to filter out frivolous, speculative or obstructive third-party disclosure requests at a minimum. If the defendant clears this hurdle, the court is then required to review the records and balance the positive and negative consequences of production, including the extent to which a denial of production would limit the defendant's constitutional right to full answer and defence. In the present case, since access to the actual medical records was no longer being sought, it was not necessary for me to review the actual records in order to do my job under the second stage.

[11] I accept that in the average criminal trial, defence access to witnesses of the events that make out the Crown's case would normally clear the "likely relevance" standard without defence counsel even opening his or her mouth. But this trial is not the average criminal trial. Indeed it is very much unlike the vast majority of criminal trials. In the average criminal trial, the defendant wants to be acquitted on the merits or to achieve the same result by reliance on some alleged violation of his or her constitutional rights. The path to acquittal is generally irrelevant for the average criminal defendant, although those criminal defendants who worry about their stature in society might prefer a robust judicial endorsement of their virtue over a victory via a constitutional "technicality".

[12] Ms. Wagner, however, is not the average criminal defendant. If I were to find her not guilty on the merits (which seems improbable given the facts to which she has admitted, but that is a decision for another day and another stage of the trial after all the evidence is in), that acquittal would be the unkindest cut of all to her. In this case it is inescapably clear that Ms. Wagner wants one of two outcomes: (a) ideally, that at the end of the day I find her not guilty, not because I have a reasonable doubt that she did the things she is alleged to have done, but rather by finding that she was acting in lawful defence of a foetus/person and was justified in doing so and that abortion is the killing of a human being, or (b) failing that ideal result from her perspective, that I find her guilty on the merits and reject her constitutional argument, thereby allowing her the opportunity on appeal to advance her argument to the Superior Court and thence to the Court of Appeal for Ontario and thence to the Supreme Court of Canada.

[13] The other problem with likely relevance in this case is this. Given the structure of the case against Ms. Wagner, what relevant information could the clinic patients and their companions provide? There is a discrepancy here over precisely how invasive Ms. Wagner was in her interactions with the clients, although I note that she has not been charged with assault. In general terms, Mr. Lugosi is correct that the eyewitness accounts of patients and companions might support Ms. Wagner's account of more benign intervention rather than Dr. Markovic's aggregate recounting of Ms. Wagner's actions as apparently compiled by her from her staff members. I do not think it is speculative for Mr. Lugosi to make that submission as Mr. Mogil and Ms. Vogel contend. I am always surprised if any two witnesses to an event see it exactly the same way. However, while those other witnesses might recall things in a light more consistent with Ms. Wagner's version, that evidence is still not logically probative to anything that is realistically in issue at this trial. This trial will be about whether or not a foetus is a person and whether or not Ms. Wagner was entitled to intervene to save that foetus's life. If the foetus was a person under Ms. Wagner's protection (or more broadly under the new "self-defence" provisions of the Criminal Code), the issue of her justification in intervening will raise the issue of proportionality between the imminent danger to the foetus and the acts done by Ms. Wagner to protect it. If one accepts Ms. Wagner's premise that the lives she was there to save that day were twelve human beings, it is hard to imagine what she could have done in that clinic that would not be proportionate. In any event, the evidence of other eyewitnesses as to whether she approached one patient or five, whether she gave them roses or pamphlets, whether she left immediately when asked to do so or not, whether she lifted pamphlets to the view of patients, etc., etc. falls far short of reasonable probability that it will be probative of any issue at this particular trial.

[14] Assuming that I am wrong on the first branch of the test, would I order disclosure on the second branch, the balancing phase? That phase requires me to consider how much access to the patients/employees is necessary for full answer and defence, the probative value of their evidence, the extent of their expectation of privacy in their identities and potential prejudice to the witnesses' or employees' dignity, privacy or security of the person.

[15] Applying those criteria, I think that the answer also has to be no, I do not believe that the balancing process favours disclosure of the patients' and employees' identities. The only criterion upon which the defence has any traction here is the one I have left out, i.e. the request for access is not based on any discriminatory belief or bias. As for the other criteria, I have already addressed in some detail why access to the patients and employees for the purpose of Ms. Wagner's investigator taking statements has no probative value to any material issue and will not in any way affect her right to make full answer and defence in the particular circumstances of this case. With respect to the privacy and prejudice issues, the answers will differ as between employees and to some extent companions on the one hand and patients on the other.

[16] It is a given that the criminal trial process has tremendous potential to lay waste to the privacy and dignity of all manner of people, including defendants, complainants and witnesses. O'Connor, supra, was written against that backdrop and nonetheless specifically requires courts to consider the wide variety of privacy and dignity concerns that might arise in different contexts and in relation to different types of information. It would not be consistent with either the principles reflected in O'Connor, supra, or with good public policy generally for me to do as was suggested on Ms. Wagner's behalf, i.e. shrug or throw up my hands and accept that in an era of widespread and not always lawful government surveillance and data-keeping, of whistleblowers, credit data theft and the occasional massive security lapses of record keepers, none of us has any realistic hope of maintaining our privacy so we might as well just give up. However challenging the present environment may be for privacy, presumably the human race is made of sterner stuff than to go whimpering meekly into 1984.

[17] Different types of information give rise to differing degrees of privacy concern. For example, when I consider the contact information for clinic employees, that is not the same as contact information for patients or companions. Given that some violent incidents and public demonstrations in front of clinic employees' homes have occasionally occurred in the abortion debate, it is understandable that clinic employees might be reluctant to have their identities known. Theirs would, however, likely be the least emotional involvement of the three classes of witness involved here. This is their business, their daily routine and while they might have a deep personal dedication to women's reproductive choice, they are to some extent insulated by the fact that their involvement in the matters that brought Ms. Wagner to court is at least not personal. At the same time, as employees of a lawful business, forced by the tactics of anti-abortion activists like Ms. Wagner to operate behind the screens of discreet web-sites, unmarked doors, video-admittance systems and double-waiting rooms for security purposes, they might well have their own vulnerabilities. I am confident that Mr. Lugosi's investigator would not spread their contact information (although the employee might not share that optimism and might feel some discomfort). If it were not for the fact that the contact information for the employees is entirely irrelevant to anything for the reasons set out above, I believe that on balance I would probably not be overly concerned about ordering access to those persons under the O'Connor balancing test.

[18] It is another matter entirely for patients of the clinic. I was led through the case-law on patient privacy in some detail by Mr. Mogil and Mr. Lugosi. I do not believe that any great purpose is achieved by reciting the details of those authorities here, by which I mean no criticism at all of the presentation of the argument. I think it is self-evident that medical records are among the most private of records imaginable. There is legislation in this province aimed directly at protecting such records, even in relation to relatively benign reasons for attending a doctor's office or hospital. Even considering that all health information should be private, I agree with Mr. Mogil that for most patients there would be a difference between disclosing that they had seen a doctor for the flu or a broken arm as compared to disclosing that they had had an abortion. I agree with Mr. Mogil generally that disclosing the identity of the patient in that context is not materially different than disclosing the actual record. In the context of this case, disclosing the identity of the patient means disclosing that they attended at a facility the principal business of which is the provision of abortions and that the fifteen patients involved either had an abortion on the day of Ms. Wagner's intervention or had had an abortion some time before that date.

[19] It was suggested that Ms. Wagner did not need full details of the identities of the people in attendance at the clinic, just a means for her investigator to contact them and determine if they wanted to talk and to find out what they had observed during Ms. Wagner's visit. Leaving aside the small matter of all of that being irrelevant in the circumstances of this case, I can agree with Mr. Lugosi that such a mechanism would go a long way to mitigating privacy concerns, but a long way might very well not be long enough. How old are the patients? With whom do they live? With whom have they shared the fact they were pregnant? With whom have they shared the fact that they had had an abortion? How would the patient's parents or partner or sibling or room-mate react to even a discreet inquiry along the lines set out by Mr. Lugosi. Is there any way confidently to safeguard the purpose of the inquiry and to ensure that the investigator did not inadvertently disclose private information? Quite apart from that, the issues involved in O'Connor, supra, are not just about privacy but also about dignity and the right to be left alone and to move on with one's life unless there is a very compelling public or private interest dictating a different outcome. I accept that there will be patients for whom an abortion is a remarkably minor event. I recall a case in which a witness testified to having had three abortions within a couple of years; it seemed to her to be no more than a routine means of birth control. Yet for many, many people there will be nothing so quotidian about the decision to have an abortion and often no desire to revisit the issue. These are very, very private and personal matters with potential to cause significant distress. Contrary to what was argued on Ms. Wagner's behalf, the patients and to a large extent their companions, cannot fairly be compared to a bank customer who is called to testify about a robbery that occurred in his or her presence. The mere fact of one's attendance at a bank is almost invariably an emotionally neutral matter and discloses almost nothing about the person; in terms of privacy and dignity and the right to be left alone (in the absence of a compelling argument for full answer and defence), the fact of a patient's or companion's attendance at an abortion clinic is on an emotional level removed from the bank customer by at least a couple of orders of magnitude.

[20] When I compare the privacy and dignity interests of companions to actual patients, I believe they fall in a middle ground. In terms of balancing, the abject irrelevance of any evidence they have to give is by itself again determinative of the outcome of the application for their contact details. In addition, many of those companions would presumably be the partners of the patients themselves and so many of the same emotional issues would often be equally at play. I accept, of course, that companions who were not the fathers of the foetuses might be less emotionally entangled and thus less affected by prying inquiries, although none of that would make their potential evidence any more relevant.

Conclusion

[21] It is for these reasons that I dismissed Ms. Wagner's application for access to the records and contact details sought by her.

Released: 3 March, 2015