R. v. Mary Wagner, 2016 ONSC 8078

minicounsel

CITATION: R. v. Mary Wagner, 2016 ONSC 8078

COURT FILE NO.: CR-14-40000083-00AP

DATE: 20161222

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MARY WAGNER

Appellant

Megan Petrie, for Her Majesty The Queen

Charles Lugosi, for the Appellant

HEARD: November 28, 29, 30, December 1, 2016

Overview

1The appellant is an anti-abortion activist who was bound by probation orders requiring her to keep the peace and be of good behaviour and barring her from attending any abortion clinic or communicating with any person at an abortion clinic in Ontario. She appeals her convictions for mischief (interference with private property) and breach of probation.

2Counsel for the appellant contends that this case is a test case of great public importance and national significance engineered to overturn s. 223 of the Criminal Code of Canada, which excludes foetuses from the definition of “human being,” on the basis that Parliament does not have the jurisdiction to define who is and who is not a human being.

3Section 223 reads:

(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

(2) A person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being.

Background

4The facts are not substantially disputed.

5The appellant believes that a foetus is a human being and that abortion is murder. On August 15, 2012, the appellant gained entry to an abortion clinic in Toronto. Employees of the clinic found her in the waiting room talking to patients in an effort to dissuade them from having abortions. She offered them roses and pamphlets, including one that contained graphic images of aborted foetuses. The patients were visibly upset. When the appellant ignored repeated requests to leave the clinic, the police were called.

6Employees physically removed the appellant from the clinic into the hallway of the building where she set up her pamphlets and attempted to dissuade patients from entering the clinic and from committing “murder.”

7When the police arrived, the appellant refused to leave and had to be escorted out of the building. The police arrested her after confirming the conditions of her probation orders.

8The appellant’s attendance at the clinic had the effect of disrupting operations. Distressed patients required further time to complete their procedures. Some of the patients were as young as 14. It was agreed, for the purpose of the trial, that each woman who attended the clinic to have an abortion and who had contact with the appellant proceeded with her abortion.

9The appellant’s account of what occurred that day was largely consistent with the accounts of the Crown witnesses. She testified that she intended to disrupt operations at the clinic and to speak to women who were there to have an abortion. She believed that her actions were peaceful and non-violent.

10She testified that human life takes precedence over court orders to keep away from private property. She said that in order to protect unborn human beings, she had no option other than to break the law.

11She testified that regardless of the outcome of this matter, she would likely repeat her actions and that she was prepared to pay the price again.

Decision of the Trial Judge and Summary of this Appeal

12The appellant did not deny having committed the offences, but sought to defend her actions on the basis that she was acting in defence of others under s. 37 of the Criminal Code, a provision that was repealed in 2013. She further argued that she was acting under necessity and/or operating under a mistake of fact.

13During the trial, the appellant sought to have the trial judge hear evidence from two American experts to the effect that a human being exists from conception onward. She also requested production of the identities of the patients who had been at the clinic on the day in question.

14Following a protracted trial, the trial judge delivered detailed reasons in which he concluded:

The Supreme Court of Canada has consistently maintained that the status of a foetus is a legal question and that Parliament is better positioned to answer the philosophical question of whether a foetus is a human being.¹ While it is perhaps arguable that the Supreme Court has not answered the precise question of whether a foetus is a “human being,” or is captured within the word “every one,” or has an independent right to life under s. 7, the appellant’s arguments are so hemmed in by authorities from the Supreme Court and provincial courts of appeal that they have no possibility of success.²
There is no new legal issue that would justify revisiting the question of foetal status, per Bedford v. Canada (Attorney General) and Carter v. Canada (Attorney General).³ Even assuming that scientific evidence could alter the legal status of a foetus, the science has not changed in the past 25 years.⁴ There has been no significant change in the circumstances or evidence, the alternative grounds for revisiting a settled issue in Bedford.⁵
The rule of law, supremacy of God, and international law do not oust Parliament’s jurisdiction to define “human being.”⁶
Even assuming that a foetus is a human being under s. 37 of the Criminal Code, the defences of necessity and mistake of fact, these defences would not be available to the appellant.⁷
The appellant’s arguments on the breach of probation orders are barred by the rule against collateral attacks on court orders.⁸

15The appellant faults the trial judge’s reasons on the following bases:

He erred in reaching each of the conclusions summarized above.
He had no jurisdiction to decline to enter into an evidentiary hearing on the issue of whether a foetus is “in fact” a “human being.”
By declining to enter into an evidentiary hearing, he denied the appellant a fair trial.
There was a reasonable apprehension of bias.
The probationary sentence imposed by the trial judge and the probation orders by which she was bound on August 15, 2012, are all unconstitutional.

16This appeal largely turns on whether the trial judge had the jurisdiction to decline to enter into an evidentiary hearing and whether his decision to do so on the basis that the appellant’s arguments had no possibility of success was correct. The answer to these questions is largely dispositive of the fair trial and bias issues.

17My reasons proceed as follows. I first examine whether the trial judge erred in his conclusion with respect to the viability of the appellant’s constitutional argument. I then consider whether the trial judge erred in declining to enter into an evidentiary hearing on the basis that the appellant’s constitutional argument had no possibility of success, and his conclusion that the proffered expert evidence had no capability of shifting the debate. Next, I examine whether that decision deprived the appellant of a fair trial, and whether there was a reasonable apprehension of bias. I then consider whether the defences raised by the appellant – the s. 37 defence of others, the common law defence of others, the defence of necessity and the defence of mistake of fact – would have been available to the appellant even if one assumed that a foetus was a human being. Finally, I consider the constitutionality of the probation orders.

The Constitutional Question

18Although the availability of the s. 37 defence is dealt with later in these reasons, I will briefly explain the appellant’s constitutional argument in order to provide context for the trial judge’s decision to decline to enter into an evidentiary hearing. The appellant concedes that the Supreme Court of Canada has already determined that a foetus is not a “person.” The appellant asserts that she relied on s. 37 rather than the new s. 34, which replaced s. 37, because s. 37 uses the words “any one” whereas s. 34 uses the word “person.” At the time of these offences, s. 37 read,

Everyone 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.

19It is the appellant’s position that the words “any one” encompass human beings, and a foetus would fall under this category but for s. 223 of the Criminal Code, which states that a child becomes a human being when it has completely proceeded from the body of its mother in a living state. If s. 223 is unconstitutional, then, in the appellant’s submission, a foetus falls within the meaning of “any one” and the appellant was protected by s. 37 when she attended the abortion clinic.

20The appellant’s position is that the trial judge erred in law in finding s. 223 to be constitutional because abortion is culpable homicide at common law, and, if a foetus is a human being, then s. 223 is contrary to ss. 7 and 15 of the Canadian Charter of Rights and Freedoms, contrary to international human rights law and inconsistent with the rule of law. In the appellant’s submission, an evidentiary hearing regarding whether a foetus is a human being was therefore required to answer the constitutional question.⁹

The Trial Judge’s Reasons

21In his reasons, the trial judge noted that the Charter guarantees certain rights. Some rights are limited to “every citizen of Canada” and many rights are guaranteed to “everyone,” including the s. 7 right to “life, liberty and security of the person.” He went to say that the obvious question is whether or not a foetus falls within the meaning of “everyone” in the Charter.¹⁰

22The trial judge then reviewed the history of abortion-rights and foetal-rights jurisprudence in Canada.¹¹ In Borowski v. Canada, the Saskatchewan Court of Appeal concluded that the extension of legal rights to foetuses was the prerogative of Parliament, not the courts.¹² Furthermore, “everyone” could not apply to foetuses because the term was used in other provisions in the Charter that could never apply to a foetus.¹³ This conclusion was consistent with historical treatment of abortions in Canadian, United Kingdom and United States jurisprudence.¹⁴ Thus, the Saskatchewan Court of Appeal in Borowski concluded that ss. 7 and 15 did not extend to foetuses.

23Although the decision was appealed to the Supreme Court, the appeal was declared moot since it challenged the same provision found to be unconstitutional in R. v. Morgentaler.¹⁵

24The trial judge then considered the Supreme Court’s decision in Tremblay c. Daigle.¹⁶ Because the case did not involve state action, the Supreme Court did not address foetal rights under the Charter. However, the Court did consider the status of a foetus under s. 1 of the Quebec Charter of Human Rights and Freedoms, which grants the right to life to every “human being” and s. 2 of that instrument, which provides that “every human being whose life is in peril has the right to assistance.”¹⁷

25The trial judge noted that the Supreme Court in Tremblay observed that the issue in the case was the legal question of whether the Quebec legislature had accorded the foetus personhood, and that metaphysical or scientific arguments were not determinative; that the question could not be determined on a plain linguistic analysis; and that if the drafters of the Quebec Charter had intended to create foetal rights, they would likely have done so explicitly.¹⁸

26The trial judge also considered Winnipeg Child and Family Services (Northwest Area) v. D.F.G., in which the Supreme Court considered whether a superior court judge had authority to order a pregnant woman who was sniffing glue into custody.¹⁹ The trial judge considered certain comments made by McLachlin J., as she then was, who observed that the common law does not recognize a foetus as a person, that it is open to Parliament to legislate rights for foetuses, and that the issue of a foetus’s status in tort law is “not one of biological status, nor indeed spiritual status, but of legal status.”²⁰

27Finally, the trial judge cited R. v. Demers, in which the British Columbia Court of Appeal concluded that a foetus is not included in the word “everyone” in s. 7 of the Charter.²¹

28Based on these authorities, the trial judge concluded that any contention by the appellant that the Charter protects foetal rights “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.”²²

29The trial judge agreed with the appellant that the rule of law was an important unwritten constitutional principle, but noted that it was equally important for judges not to use this principle to undermine the principle of democratic government. He also observed that s. 7 replicates many unwritten constitutional principles. Ultimately, although the trial judge acknowledged that the rule of law is part of Canada’s “constitutional DNA,” he disagreed with the appellant that the conclusion that abortion is murder was supported by the rule of law.²³

30The reasons of the trial judge state:

120Where 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.

121The 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.²⁴

31The trial judge specifically referred to the United Nations Convention on the Rights of the Child and stated that it has been described as “the most widely ratified human rights treaty in the world.”²⁵ He correctly pointed out that the convention grants rights to any human being under the age of 18 years and does not set a lower limit, “leaving the States Parties to determine where life begins.”²⁶

32The trial judge also rejected the appellant’s argument that the Fifth Commandment’s prohibition on murder should be taken into account by reference to the supremacy of God in the preamble to the Charter. In rejecting this assertion, the trial judge reviewed the jurisprudence addressing the Charter’s preamble and indicated that the effect of the preamble on Charter jurisprudence was limited. The trial judge noted, moreover, the interpretive difficulties associated with the words “supremacy of God”:

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?²⁷

33The trial judge ultimately concluded that the appellant’s constitutional argument with respect to the legal status of a foetus was incapable of success. He acknowledged that it may fairly be argued that the Supreme Court had not ruled on the precise question of whether a foetus is a “human being,” captured within the meaning of “everyone” in s. 7 of the Charter. In the trial judge’s view, however, the appellate authorities precluded any possibility of success on this point. In particular, the trial judge considered that if the Supreme Court were of the view that a foetus is a human being, then it cannot possibly have recognized the right of women to terminate pregnancies in Morgentaler.²⁸

Positions of the Parties

34The appellant argues that both the Crown and the trial judge misapprehended the central issue in this case and derailed the appellant’s defence by focussing on personhood instead of the issue of who is a human being. She argues that the former describes a legal construct and the latter, a natural state in accord with science and biological reality, and that only the latter was raised by the appellant and is relevant to this case.

35Citing R. v. Howe,²⁹ the appellant submits that the overriding objectives of the criminal law are to protect innocent lives and to set a standard of conduct which ordinary men and women are expected to observe if they are to avoid criminal responsibility. The appellant claims that Parliament has failed in its duty to enact laws to protect innocent human lives and aids and abets abortion by not repealing s. 223 of the Criminal Code.

36The appellant also argues that abortion is a crime against humanity and an affront to the dignity and equal worth of every human being. Abortion offends s. 15 because it is prejudicial against foetuses, an insular minority. Furthermore, the Charter’s preamble, which affirms the supremacy of God, requires the court to consider both positive and natural law. She disputes Parliament’s authority to decide who is and who is not a human being.

37The respondent submits that the appellant raises the same arguments that she raised before the trial judge. It is submitted that the common law does not recognize the foetus as a legal person, as concluded by McLachlin J. in Winnipeg when she held that neither the common law nor the civil law of Quebec recognizes the unborn child as a legal person possessing rights.³⁰ The respondent asserts that although at one point abortion may have been illegal after “quickening” (after a woman can feel movement in her womb), even this is disputed, as concluded by the United States Supreme Court in Roe v. Wade.³¹

Analysis

38The trial judge did not err in his analysis of the constitutional question. The case law from the Supreme Court and provincial appellate courts reviewed by the trial judge leaves no room for a determination that an unborn child has the right to life under s. 7 or equality rights under s. 15 of the Charter.

39I reject the appellant’s argument that the status of a foetus was a new legal issue in this case. Courts of law determine matters of law. The pre-Charter case of Dehler v. Ottawa Civic Hospital³² dealt with a similar argument and supports the trial judge’s decision:

The question of when human life begins is one which has perplexed the sages down the corridors of time. In my respectful view, even if the theological, philosophical, medical and jurisprudential issues involved in it could be answered in a courtroom, the answer would be beside the point insofar as this lawsuit is concerned. Accepting as fact the conclusion the plaintiff seeks to establish by testimony at trial, that is, that a foetus is a human being from conception, the legal result obtained remains the same. The foetus is not recognized in law as a person in the full legal sense. The plaintiff has cited no case that holds a foetus is within the concept of a legal person entitled to the rights asserted in this action. The cases here and elsewhere demonstrate that the law has selected birth as the point at which the foetus becomes a person with full and independent rights.

40The respondent claims that the only point of the finding sought by the appellant (that a foetus is a human being) is to vest the foetus with legal rights in order to set up a competition of rights and to challenge the legality of abortion. During submissions at trial, appellant’s counsel stated:

…if you ever get to the point where there’s a finding of fact that a foetus is a human being, then there’s the subsequent legal connection as to whether a human being is also a person and then there’s the subsequent competing of rights under the Constitution and then which right is paramount – the right to life versus the right to personal liberty and/or security of the person? And it seems to me that in such a context, the right to life would trump. In other words, somebody’s right to kill stops at the moment there’s somebody’s right to life.

41I agree with the respondent’s position.

42The appellant argues that if Parliament is not bound by scientific evidence defining “human being,” there is ultimately no constitutional limit to what Parliament will do when it comes to matters of life and death and that the door is opened to the government excluding, in addition to foetuses, the elderly, the sick and the disabled.

43In this regard, Major J.’s comments in British Columbia v. Imperial Tobacco Canada Ltd.³³ are noteworthy:

62This debate underlies Strayer J.A.’s apt observation in Singh v. Canada (Attorney General), 2000 CanLII 17100 (FCA), [2000] 3 F.C. 185 (C.A.) at para. 33, 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”.

66… the appellants’ arguments overlook the fact that several constitutional principles other than the rule of law that have been recognized by this Court – most notably democracy and constitutionalism – very strongly favour upholding the validity of legislation that conforms to the express terms of the Constitution (and to the requirements, such as judicial independence, that flow by necessary implication from those terms). Put differently, the appellants’ arguments fail to recognize that in a constitutional democracy such as ours, protection from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box (citations omitted).

67The rule of law is not an invitation to trivialize or supplant the Constitution’s written terms. Nor is it a tool by which to avoid legislative initiatives of which one is not in favour. On the contrary, it requires that courts give effect to the Constitution’s text, and apply, by whatever its terms, legislation that conforms to that text.

44The appellant’s arguments fail to recognize that we live in a constitutional democracy and that we are protected against arbitrary legislation by the democratic process and our courts’ ability to review legislation for constitutionality.

The Evidentiary Hearing

The Trial Judge’s Reasons

The Evidentiary Hearing

45As it was the appellant’s wish to call expert evidence in support of her argument about the status of the foetus and its right to protection under the Charter notwithstanding the jurisdiction discussed above, the trial judge asked the parties to address the issue of whether or not an evidentiary hearing was warranted.

46The trial judge relied on R. v. Kutynec,³⁴ R. v. Durette,³⁵ and R. v. Felderhof³⁶ for the authority to decline to enter into an evidentiary hearing in an appropriate case. He quoted the following passages from Felderhof:

40Whatever 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 the 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.

47The trial judge also referred to R. v. Pires; R. v. Lising where the Supreme Court stated that one mechanism for controlling the course of proceedings is the power of the trial judge 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.³⁷

48He also noted that an evidentiary hearing should never be denied where to do so might cause injustice.³⁸

49The trial judge noted that the issue of abortion rights and foetal rights is a divisive one in our society and that both pro-choice and pro-life advocates have sought resort to the courts and the Charter to advance their positions, resulting in a long history of jurisprudence on the status of the foetus and foetal rights.³⁹

He recognized that a trial judge may have a duty to revisit the decisions of appellate courts under Carter and Bedford in two circumstances:

where a new legal issue is raised, or
where there is a change in the circumstances or the evidence that “fundamentally shifts the parameters of the debate”⁴⁰

50However, he considered that it would be neither desirable nor appropriate to enter into “a full-fledged evidentiary hearing that might lead nowhere,” especially if the appellant was asking that he overturn the Supreme Court “in circumstances where there has been no material intervening change in the law or the relevant science or other facts.”⁴¹

51The trial judge concluded that the key cases in the “long history of jurisprudence” on the issue of foetal rights, discussed above, were “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” and that these decisions supported the Crown’s position that a foetus does not have rights under s. 7 of the Charter. The issue, then, was whether the evidence to be given at the proposed evidentiary hearing could disclose a significant change in circumstances or fundamentally shift the parameters of the debate.

52In light of the foregoing, the trial judge sought submissions from the appellant and respondent on whether or not to enter into an evidentiary hearing. He invited the appellant to file a written outline of what she expected her expert witnesses would say. He asked that these “will states” address the question of how the science had changed materially since the Supreme Court abortion cases were decided.

53The trial judge reasoned that, “[i]f the science is not materially different than what was understood at that 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.”⁴² He noted that for the purpose of deciding whether to hold a viva voce hearing, the proposed evidence would be accepted as true.⁴³

54He held that it lies within a trial judge’s power to decline to enter into an evidentiary hearing where it reasonably appears to the judge that even assuming all facts are found in favour of the party proposing the inquiry, the inquiry could not possibly result in the relief the party seeks.⁴⁴

55He rejected the appellant’s argument that a judge’s power to decline to hold an evidentiary hearing is restricted to scenarios where the issue is the violation of a Charter right (through state action) rather than where the issue is statutory interpretation or the constitutionality of legislation.⁴⁵ He also rejected the appellant’s argument that declining to enter upon the proposed evidentiary hearing would, under any circumstances, infringe the appellant’s right to make full answer and defence.

56The trial judge stated:

Neither 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.⁴⁶ (citations omitted)

57In response to his request, the appellant provided the written opinions and scholarly works of her proposed experts, Dr. Maureen L. Condic of the University of Utah School of Medicine and Dr. John M. Thorp, Jr. of the University of North Carolina School of Medicine.

58The trial judge concluded that these materials “at best [paid] lip service” to the question of how scientific knowledge had sufficiently changed since the 1980s to justify re-visiting the Supreme Court’s decisions. ⁴⁷

59Although he accepted that the science and technology available to a specialist in the field had changed dramatically, the trial judge found that the proffered material did not show that the science had altered in in any material fashion to establish the appellant’s fundamental assertion that human life begins at conception.

60He pointed out that while Dr. Condic’s materials might have described her view that human life begins within a second of the fusion of the egg and sperm, rather than perhaps 24 hours later, this distinction was legally trivial.⁴⁸

61When he examined what the experts said in their materials, the trial judge found it “remarkably similar to the science reflected in materials from the 1980s and even earlier” – including the science described in the factums of the parties advocating for positions similar to the appellant’s in Borowski and Tremblay.⁴⁹

62Importantly, the trial judge noted that a fundamental requirement for all evidence in a trial is that it be material; that requirement was operative in this context as the proposed evidence needed to demonstrate how the “relevant science had changed materially” in the decades since the binding Supreme Court decisions were decided.⁵⁰

63He emphasized that scientific evidence is only one consideration in legal interpretation and that it is far from determinative because the interpretation of legal status is inherently a normative process.⁵¹

64Ultimately, he concluded that the proposed evidence “falls far, far short of, ‘fundamentally [shifting] the parameters of the debate,’” and there was no demonstration of any new legal issue.⁵² The trial judge therefore declined to enter into the proposed evidentiary hearing.

Positions of the Parties

65The appellant now argues that in denying her the opportunity to call viva voce evidence from her two experts, the trial judge denied her a fair trial. She states that the proposed experts would have testified that the life of a human being begins at conception, and that abortion is a fatal assault upon an unborn child that is a human being – “the core issue” in the case. She characterizes the proposed evidence as “uncontested” scientific truth.

66The appellant submits that the trial judge unilaterally expanded the law in Kutynec. She submits that a trial judge only has the discretion to deny an evidentiary hearing on a Charter motion and does not have such discretion on an application to have legislation declared unconstitutional.

67The appellant maintains that she was entitled to develop a full evidentiary record because an application to have legislation declared unconstitutional must be based on an evidentiary foundation. Moreover, an evidentiary record was required for the appellant’s non-constitutional defences. She asserts that the proposed evidence was material, relevant to the factual underpinning for the constitutional challenge and essential to the task of truth-finding.

68Her position is that the trial judge was not permitted to deny an evidentiary hearing simply because he did not believe that the appellant’s argument had merit. Citing Hunt v. Carey Canada Inc.,⁵³ the appellant draws a parallel between the decision to deny an evidentiary hearing and the decision to strike out civil litigation pleadings that have no prospect of success, given the current state of the law. She submits that there was a chance of success here.

69The respondent’s position is that the Supreme Court and provincial appellate jurisprudence clearly establishes that the trial judge’s trial management power includes the discretion to decline to hold an evidentiary hearing that will not assist in determining the issues before the court.

Analysis: Did the trial judge err in declining to embark on a full evidentiary hearing on the issue of whether a foetus is a “human being”?

70I reject the appellant’s argument that a trial judge has no jurisdiction to decline to enter into an evidentiary hearing on a Charter application to have legislation declared unconstitutional. A trial judge has the power to exclude proposed evidence that is irrelevant, immaterial, or otherwise inadmissible. There is no principled basis for restricting a trial judge’s case-management authority in the context of a Charter application to have legislation declared unconstitutional.

71I would also note that Wilson J.’s comments in Hunt, regarding a motion to strike based on a proposed expansion of the law, is inapplicable in the present context. What concerned Wilson J. in that case was that tort law would lag behind societal developments if pleadings could be struck on the basis that they disclosed a tort not previously recognized by law.

72In this case, however, the appellant is not advancing an expansion of the common law, but rather is challenging the constitutionality of a legislative provision. Bedford and Carter provide a comprehensive framework for ensuring that constitutional law will adapt to societal changes.

73First, a judge will be permitted to rule that a legislative provision is unconstitutional if the judge is doing so on the basis of a legal issue that has not already been determined. Second, where there is no new legal issue, a court may revisit an issue only if there is a significant change in the circumstances or evidence. These two requirements ensure that constitutional law will adapt to societal changes and permit the hearing of new legal arguments.

74As summarized above, here, the legal issue raised by the appellant has been raised many times before. The courts have addressed the legal status of the foetus and have found that under the common law and the Charter, the foetus does not have the legal status that the appellant would have the court bestow upon it. There was no new legal issue requiring an evidentiary record.

75The trial judge’s conclusion that the science has not changed in the past 25 years means that there has been no significant change in the circumstances or evidence which would warrant the court’s assumption of jurisdiction over the status of a foetus.

76The trial judge was therefore justified in denying the evidentiary hearing on the basis that the appellant’s arguments had no possibility of success. His reasons are entirely consistent with the continued development of constitutional law.

77Furthermore, the Supreme Court’s decision in R. v. Seaboyer; R. v. Gayme,⁵⁴ cited by the appellant, does not support a right to call any evidence, regardless of relevance or materiality. The issue in Seaboyer; Gayme related to legislation that had the potential to exclude evidence of “critical relevance” to the defence. In the present case, by contrast, the trial judge specifically found that the proposed evidence was not material.

78The appellant does not suggest any viable basis on which to challenge the trial judge’s finding that the proposed evidence was not material. She does not challenge the trial judge’s interpretation of the Supreme Court case law on the legal status of the foetus, including under the Charter, which the trial judge found to be binding on him.

79Significantly, she does not suggest that the trial judge misapprehended the proposed expert evidence. The appellant does not say, for example, that the proposed evidence did disclose a material change in scientific understanding that the trial judge failed to grasp. Although the appellant complains that the trial judge failed to communicate that the proposed evidence was required to show a material change in the science (as discussed further below), on this appeal she does not suggest that had she been made aware of this requirement, she could have provided evidence that would have complied with it.

80Indeed, the appellant’s description of her proposed evidence on this appeal supports the trial judge’s conclusion that, given the existing appellate case law on the issue, this evidence could not have assisted her. The appellant does not suggest that the experts would have been prepared to testify about the kind of material change in the science that could make a difference in this case. This lends further support to the trial judge’s suggestion that “it appears … in light of the foregoing that no such credible medical or scientific evidence likely exists.”⁵⁵

81The appellant submits that it was an error for the trial judge to decline to embark on the evidentiary hearing because the expected testimony that “abortion is a fatal assault upon an unborn child that is a living human being” went to the “core question” of the case. This submission misunderstands the role of expert evidence at trial – and specifically, ignores the principle that the expert should not usurp the role of the fact finder. It also misunderstands the role of scientific evidence in the context of determining the legal status of the foetus.

82The appellant contends that the proposed finding of fact was necessary to either accept or deny her defences and that after failing to make the factual finding sought, the trial judge also failed to decide the constitutional challenge on its merits. For reasons set out later in these reasons, her contention is without merit.

83The trial judge did deny all of the appellant’s defences and did decide the constitutional challenge raised by the appellant, but simply reached the opposite conclusion from that advocated by the appellant. The trial judge did this after finding that the proposed evidence was not material and, therefore, not necessary to resolving the issues in the case.

84The trial judge accepted for the sake of argument that that the proposed evidence would state that a foetus is a human being from the moment of conception and appropriately determined that the requested finding did not change the outcome in the case.

85In my view, the evidence provided no support for the finding sought – that the foetus has rights under s. 7 of the Charter or falls within the meaning of “any one” in s. 37 of the Criminal Code. Moreover, the evidence could not assist with material issues before the court.

Remaining Trial Fairness and Reasonable Apprehension of Bias Issues

86As I indicated earlier in my reasons, my conclusions on the constitutional question and the evidentiary hearing issue are largely dispositive of the fair trial and bias issues in this case. Specifically, my conclusion that the trial judge properly answered the constitutional question is dispositive of the appellant’s argument that the trial judge derailed the appellant’s defence by considering the question of legal personhood. I will now address the remaining fair trial and bias issues.

87The appellant complains that the trial judge informed counsel in an email that the appellant should provide an outline of what her experts would say “including whether or not the underlying science has changed in the past 25 years,” but that the trial judge gave no reason as to why he was requesting this information.

88In my opinion, the trial judge in no way misled or confined counsel. He relied on cases that were referenced by counsel in oral submissions or cited in other cases that were discussed, and the appellant’s counsel had ample opportunity to provide submissions on the issues. If counsel did not understand the purpose for which submissions were sought, it was incumbent on counsel to follow-up with the trial judge for clarification.

89The appellant argues that the trial judge’s emails to counsel, asking for submissions on whether the science had changed in the past 25 years, did not disclose his intention to revisit the issue of personhood. The appellant, therefore, did not adduce evidence directed to the issue of revisiting previously decided issues per Bedford, which the trial judge considered in his judgment, and to which the appellant had no opportunity to respond.

90I do not agree that this deprived the appellant of a fair trial. The appellant’s counsel argued strenuously at trial that there was a new legal issue in this case requiring an evidentiary hearing. Indeed, it was the entire basis for her “test case.” Moreover, the trial judge specifically asked how the science had changed since the Supreme Court abortion cases were decided. This question effectively restated the second arm of Bedford, providing the appellant with sufficient opportunity to make submissions. Indeed, the appellant’s experts prepared reports which specifically addressed how the science had changed in the past 25 years. For example, Dr. Condic’s report 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.

91The trial judge found these reports merely paid lip service to the question of how the science has changed since the 1980s. Again, the appellant has not identified any error in the trial judge’s interpretation of the expert evidence.

92In his email, the trial judge asked counsel to confine their submissions on the need for an evidentiary hearing to the issues raised in Durette. However, in his reasons, he also relied on Kutynec and Felderhof, cases he had not raised with counsel beforehand. Again, I do not find the trial judge’s reliance on these cases deprived the appellant of a fair trial. The trial judge asked counsel to prepare submissions on Durette and its “progeny.” Durette refers to Kutynec expressly, and Crown counsel referred to Felderhof in both her written and oral submissions, following which appellant’s counsel had ample opportunity to reply.

93It is also submitted that the issues raised in the emails should have been raised in the presence of the appellant, per s. 650(1) of the Criminal Code.

94The communications by email were not part of the trial for the purposes of s. 650(1) of the Criminal Code, as they did not concern the appellant’s vital interests. The trial spanned more than one year and there were discussions by email involving administrative details. The communication from the trial judge alerting counsel to a legal issue did not involve a final determination and was full recounted and addressed in open court in the appellant’s presence when submissions were made on the issue.

95Indeed, it was the trial judge who raised s. 650 in response to an email from appellant’s counsel on May 21, 2014, when he wrote: “These submissions and the Crown’s response can be heard on 30 May so that Ms. Wagner’s s. 650 rights are not compromised.”

96The appellant points to three statements made by the trial judge in his reasons as giving rise to a reasonable apprehension of bias. The first statement purportedly made by the trial judge is: “Nothing in this case…could possibly result in the relief the appellant seeks.”

97The appellant misquotes the trial judge. His reasons state:

It 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.⁵⁶

98The second statement on which the appellant relies is: “[T]here is no realistic basis upon which the effectively absolutist view espoused by Ms. Wagner can prevail.” The sentences that follow this comment place it in context:

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.

99The third passage that the appellant claims to give rise to a reasonable apprehension of bias is that the trial judge could not “rationally conceive any way” the appellant could succeed before the Supreme Court and “could not imagine” the Court even remotely allowing for the possibility that an unborn child was a human being when it decided the cases of Morgentaler and Borowski.

100The appellant takes these words out of context. The trial judge stated:

It 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.⁵⁷

101None of the trial judge’s written remarks excerpted by the appellant support the suggestion that the trial judge was biased.

102A review of the record demonstrates that the appellant received a wide berth for her arguments, a fair hearing and the utmost courtesy during the trial. Indeed, appellant’s counsel, near the end of the proceedings, acknowledged the trial judge’s fairness to the parties when he said, “I know that you’ve done your utmost to consider all the different arguments.” It is the respondent’s assertion that the trial judge showed great leniency with the appellant with respect to compliance with the Criminal Rules of the Ontario Court of Justice,⁵⁸ the filing of materials and the scheduling of proceedings. Based on my review of the record, I would agree.

103There is a strong presumption that judges are impartial, and the onus for demonstrating bias is a heavy one. The appellant has failed to demonstrate a reasonable apprehension of bias.

The Defences

104I will now address the availability of the defences raised by the appellant at trial and on appeal. This issue is also relevant to the trial judge’s decision to decline to enter into an evidentiary hearing. If, even assuming a foetus is a human being, the defences were not available to the appellant, then the evidentiary hearing had no possibility of changing the outcome of the case. For the following reasons, I conclude that the trial judge did not err in finding that the s. 37 defence of others, the defence of necessity, and the defence of mistake of fact were not available to the appellant.

Did the trial judge indirectly decide the case under s. 34 of the Criminal Code as opposed to the former s. 37?

105On March 11, 2013, ss. 34 to 37 of the Criminal Code were repealed and replaced with s. 34, which reads in part:

(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

106When the appellant was arraigned on April 16, 2013, the law was not yet settled with respect to the application of the new s. 34 to events pre-dating its introduction. The appellant was found guilty on June 12, 2014 with reasons for judgment released on February 12, 2015.

107On June 8, 2015, the Ontario Court of Appeal released its reasons on the issue of the retrospective application of the Citizen’s Arrest and Self-defence Act, S.C. 2012, c. 9 in R. v. Bengy⁵⁹ finding that the new provisions applied prospectively only, and not retrospectively. On the same day, the Ontario Court of Appeal released its reasons in R. v. Rogers,⁶⁰ in which it adopted its reasons in Bengy on the issue of the application of s. 34. Leave to appeal to the Supreme Court was refused in Rogers on March 17, 2016.⁶¹

108The appellant contends that the trial judge erred by indirectly deciding the case under the current s. 34 of the Criminal Code rather than under the old s. 37, the provision in effect at the time she committed the offences. It is submitted that when the trial judge stated that the appellant was asking him to overturn the Supreme Court when the science had not changed in the past 25 years, he shifted the issue from the biological status of a foetus to the irrelevant issue of personhood.

109I have already determined that the trial judge correctly determined that the status of a foetus is not a new legal issue. It is also clear from the trial judge’s reasons that he considered the availability of both the s. 34 and s. 37 defences.

110The trial judge stated:

Ms. Wagner initially appeared to rely solely on the pre-amendment [self-defence] 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. (citations omitted)⁶²

111The trial judge observed:

[N]either 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.⁶³

112Consistent with the then-state of the law and his duty to consider available defences, regardless of whether counsel had raised them,⁶⁴ the trial judge considered the appellant’s arguments in the context of both sections and found that neither section assisted the appellant. He did not decide the case indirectly under s. 34.

Section 37 (1)

113At the time of these offences, s. 37(1) read:

Everyone 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.

114For the defence under s. 37 to apply here, there must be evidence on each of the following elements:

The appellant must have reasonably believed that she or any one under her protection was being or was about to be assaulted;
The appellant used force to defend herself or any one under her protection from what she reasonably believed was an unlawful assault; and
The force used by the appellant was no more than necessary to prevent the assault or to stop it from continuing or being repeated.

115The trial judge concluded that, even assuming for the sake of argument that a foetus could count as “any one” for the purposes of s. 37 and an abortion would be an assault, that provision was not available to the appellant for two reasons: the appellant’s actions did not constitute “force,” as that word is used in s. 37, and the foetuses the appellant was purporting to be acting in defence of were not “under her protection,” as required by s. 37.

116The appellant now challenges each of these findings made by the trial judge and asserts that a foetus would count as “any one.” The respondent argues that the trial judge correctly interpreted the words “force” and “under his protection” and submits that a foetus would not qualify as “any one” under s. 37. Moreover, abortion is a lawful medical procedure, not an assault.

Does “any one” in s. 37 include an unborn child?

117For the following two reasons, I conclude that “any one,” as it is used in s. 37, means the same thing as “person.”

118First, the Criminal Code treats the terms “any one” and “person” as synonymous and uses them interchangeably. Moreover, the French version of s. 37 uses the words “toute personne” rather than “any one:”

37(1) Toute personne est fondée à employer la force pour se défendre d’une attaque, ou pour en défendre toute personne placée sous sa protection, si elle n’a recours qu’à la force nécessaire pour prévenir l’attaque ou sa répétition.

119De Villiers J. reached precisely this conclusion in R. v. Manning,⁶⁵ where he held that “any one” and “person” were synonymous and did not apply to unborn children.

120Second, the shared meaning rule of statutory interpretation supports the respondent’s argument. The rule holds that for bilingual legislation, both the French and English versions of the statute must have the same meaning.⁶⁶ As Lebel J. explained in Schreiber v. Canada (Attorney General):

A principle of bilingual statutory interpretation holds that where one version is ambiguous and the other is clear and unequivocal, the common meaning of the two versions would a priori be preferred. (citations omitted)⁶⁷

121Where one meaning is clear and the other ambiguous, it is the clear meaning which must be preferred. Here, “any one” is the ambiguous version, since, at least in the appellant’s argument, it may encompass a foetus. In the appellant’s own submission, “personne” is not ambiguous. It applies only to legal persons. The French version of s. 37 therefore eliminates any ambiguity regarding the word “any one” in the English version of s. 37: it applies only to legal persons.

122The appellant argues, however, that the principle of strict construction of penal statutes requires ambiguity to be resolved in favour of the accused.⁶⁸ By this logic, the ambiguous English version of the statute should be adopted because it is favourable to the appellant.

123This argument overlooks the principle that courts may only resort to principles of statutory interpretation like the principle of strict construction of penal statues when there is ambiguity.⁶⁹ As I have indicated, the French version of s. 37 eliminates any ambiguity in s. 37.

Did the trial judge err in concluding that the words “under his protection” preclude the appellant’s reliance on s. 37?

124The appellant argues that the trial judge erred in limiting “everyone,” as the word is used in s. 37, to those individuals 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. It is submitted that the words “under his protection” grant immunity from criminal liability to the Good Samaritan, such as the appellant, who uses force to rescue victims from crimes.

125The appellant relies on R. v. Webers for the proposition that the words mean “any one who requires protection which the accused may be able to provide.”⁷⁰

126In the alternative, the appellant argues that she did in fact have a special relationship to foetuses because of her years of devotion to the cause of protecting the unborn and her belief that she had a legal duty to save their lives. The appellant finds support for her argument in the trial judge’s reasons on standing where he found that “there is some resonance to the argument that there is nobody else to speak for the unborn.”⁷¹

127The respondent submits that the trial judge did not err in rejecting the appellant’s interpretation. Words within a statute are presumed to make sense and have meaning and if everyone may rescue any one, then the words “under his protection” would be pointless.

128The trial judge acknowledged that other decisions had interpreted the words “under his protection” broadly, but rejected the appellant’s suggestion that the words were so broad as to allow everyone to rescue any one. Such an interpretation, the trial judge reasoned, would render the words redundant. He stated that while it may be argued that a law providing broader protection to the Good Samaritan would have been better public policy, it is not the law that Parliament adopted in s. 37.⁷²

129The trial judge was prepared to agree that “under his protection” did not describe a closed or defined class of cases, but found that it has to mean something. He went on to state:

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.⁷³

130I find no error in the trial judge’s analysis. The words “under his protection” are capable of broad interpretation, but not so broad as to render the words redundant. In R. v. Foley, Durno J. held that the scope of “under his protection” has not been defined by binding authority and appears to have developed on a case by case basis.⁷⁴ While the courts in R. v. Tracey, and Foley applied Webers favourably, the facts of these cases are instructive.

131In each case, the accused had a pre-existing relationship with the person being protected. In Webers, the person being protected looked upon the accused as a father. In Tracey, the accused was protecting his girlfriend from her former boyfriend. In Foley, a bouncer at a bar was found to be under the protection of the accused, who was another bouncer at the bar.⁷⁵

132While a pre-existing relationship with the person being protected may not be necessary to invoke s. 37, I agree with the trial judge that, on the facts of this case, the foetuses were not under the appellant’s protection. The appellant would argue that she could intervene to protect a foetus from murder because she has a calling and has devoted her life to this cause. In my view, this does not give her the entitlement or legal duty under s. 37 to protect the foetus. The appellant had no relationship whatsoever with either the women at the abortion clinic or the foetuses she believed she was protecting. Accordingly, the trial judge did not err when he found that the foetuses were not under the appellant’s protection within the meaning of s. 37.

Does “force” require an act of violence or constraint?

133The appellant submits that the trial judge erred in interpreting the word “force” as it is used in s. 37 to require an act of violence or constraint. It is submitted that the words uttered by the appellant could be construed as fighting words and verbal assault when accompanied by a graphic image of an aborted child and that s. 37 is available to the appellant on that basis.

134The appellant relies on the evidence of the clinic’s medical director, who testified that the appellant said to her patients, “Don’t kill your babies. Don’t do this. Don’t do that. That’s for me verbal assault.” She also described the appellant as “verbally very violent.”

135The appellant contends that because the trial judge denied her motion to release the identities of and contact information for the patients at the clinic, there is no evidence about the subjective effect of her words and actions on those patients.

136The respondent argues that the appellant’s actions did not constitute “force” within the plain meaning of s. 37. At no time did she employ physical force or coercion against patients. As described by the appellant herself, her actions were anything but violent or forceful. She testified, “If somebody has indicated that, ‘I don’t want to talk to you,’ if they have said that, or – then I – I don’t continue dialoging with them.”

137The trial judge set out 18 provisions of the Criminal Code and concluded that a reading of the Criminal Code overall indicates that the word “force” was intended to refer to an act of violence or constraint or something similar. He added that to give “force” the meaning the appellant seeks would do violence to the clear and inescapable intention of Parliament in its choice of that word.⁷⁶

138Having applied the approach to statutory interpretation mandated by the Supreme Court and having considered the use of the word “force” in other parts of the Criminal Code, the trial judge found that while the appellant’s persuasive efforts in the clinic might fit within some linguistic definitions of “force,” they did not meet a criminal one. In my opinion, he did not err in law.

Is an abortion an assault?

139The appellant submits that abortion is an act of violence and a fatal injury to unborn children whom she had a duty to protect. Therefore, s. 37 was available to her to prevent an assault from occurring. The respondent argues that the appellant may have believed that abortion is culpable homicide, but she cannot have reasonably believed that she was protecting any one from an unlawful assault.

140I would also note that s. 265(1) of the Criminal Code defines “assault” using the word “person,” not “any one.” The appellant concedes that “person” does not include a foetus. In fact, this concession is central to her argument that there is a novel legal issue to be decided. It makes little sense, then, for her to argue that she reasonably believed she was saving foetuses from assault when, by her own admission a foetus is not a person and, therefore, cannot be assaulted.

141In any event, the trial judge assumed, for the sake of argument, 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, would be assaultive in nature vis-à-vis the foetuses, assaultive conduct being necessary to trigger the law of self-defence.⁷⁷

142Given my finding that the trial judge did not err in his interpretation of “force” and “under his protection,” the issue of whether an abortion is an assault would not affect the availability of s. 37.

Can the appellant rely on the common law defence of others?

143The appellant submits that her acts were justified under the common law defence of others. She relies on Handcock v. Baker⁷⁸ and R. v. Duffy, where the English Court of Appeal held:

Quite apart from any special relations between the person attacked and his rescuer, there is a general liberty even as between strangers to prevent a felony.⁷⁹

144The respondent argues that the cases cited by the appellant concern a right to prevent the commission of a felony, not a right to protect another person.

145The trial judge rejected the appellant’s submission that she was entitled to rely on a broad common law defence of others. He acknowledged that some cases refer to the preservation of common law defences, but noted that s. 8(3) of the Criminal Code preserves only those defences, which are not inconsistent with the Criminal Code.⁸⁰

146In my view, the trial judge was correct. The restrictive language of s. 37, which permits the defence of others only in the event of an assault on someone under the accused’s protection, is inconsistent with a broad based common law defence of others.

The Defence of Necessity

147The trial judge found that the defence of necessity was not available to the appellant. He reviewed the majority reasons Dickson J., as he then was, in Perka⁸¹ and noted that the defence is available in circumstances where an emergency excuses non-compliance with the law and “where the actor’s pursuit of some greater good justifies the otherwise unlawful conduct.” He emphasized that the latter was not available to persons who violate the law because they believe the law conflicts with a higher social value.⁸²

148Of particular significance to the trial judge was the existence of reasonable legal alternatives available to the appellant. She could, for example, engage in advocacy that complied with the terms of her probation or she could pursue a remedy in civil court. “The simple reality,” the trial judge concluded, “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.”⁸³

149The appellant submits that the trial judge erred in relying solely on the existence of a reasonable legal alternative and failed to consider four other conclusions reached by Dickson J. in Perka:

(6) negligence or involvement in criminal or immoral activity does not disentitle the actor to the exercise of necessity;

(7) actions or circumstances which indicate that the wrongful deed was not truly involuntary do disentitle;

(9) the defence only applies in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril;

(10) where the accused places before the court sufficient evidence to raise the issue, the onus is on the Crown to meet it beyond a reasonable doubt.⁸⁴

150In any event, the appellant urges this court not to follow Dickson J.’s judgment in Perka. Instead, this court should follow Wilson J.’s concurring reasons in Perka, which the appellant argues are consistent with the history and judgments of the common law. The appellant submits that these authorities draw a distinction between acts motivated by unselfishness to save the human lives of others and acts motivated by selfishness to preserve one’s own life.

151Addressing the argument that the trial judge erred in his application of Perka, the appellant contends that a foetus in a waiting room is in imminent danger and there is no legal alternative available for the foetus or the rescuer. She submits that contrary to the suggestion of the trial judge, protesting would not save the foetus. The harm inflicted is proportionate to the harm to be avoided, the death of a human being. She also submits that the trial judge erred in failing to consider the defence of necessity from the perspective of the victim.

152I do not agree. The trial judge stated that he had reviewed the ten considerations listed in Perka that should be kept in mind when assessing the availability of the necessity defence. It was the consideration of a reasonable legal alternative that struck him as particularly cogent in this case.⁸⁵

153In Perka, Dickson J. emphasized that the requirement that there be no reasonable legal alternative will almost certainly be the most important one and goes to the heart of the defence of necessity.⁸⁶

154Moreover, the trial judge did not err in concluding that there was no urgency and that there was a reasonable legal alternative. August 15, 2012 was just like any other day. Ms. Wagner did not find herself by happenstance at the abortion clinic. Her attendance at the clinic was pre-planned. She had clear foreseeability of the circumstances by which she now seeks to excuse her actions. She could have challenged her probation order or protested against abortion in some other way. Instead, she deliberately contravened her probation order because she disagreed with it. The defence of necessity is not available in these circumstances. This conclusion is consistent with a number of cases in which the defence of necessity was rejected in circumstances very similar to this case. ⁸⁷

155Finally, there is no merit to appellant’s argument that the trial judge erred in failing to consider the defence of necessity from the perspective of the victim. Nothing in Perka or R. v. Latimer⁸⁸ supports such a requirement.

156The appellant urges this court to follow Wilson J.’s concurring reasons in Perka instead of Dickson J.’s. I reject this submission for two reasons.

157First, the defence of necessity would not be available to the appellant even under Wilson J.’s reasons in Perka. Wilson J. would have expanded the defence of necessity to circumstances where an accused violates a law while fulfilling a duty reflected in the legal system. Importantly, she would not have expanded the defence for ethical duties. ⁸⁹

158The appellant contends that there is a legal duty to save human life. I find no support for that proposition in the cases cited by the appellant. The historical tort cases on which the appellant relies stand for the proposition that a rescuer who is injured in the course of a rescue may sue a defendant whose negligent conduct caused the need for a rescue.⁹⁰ The courts’ comments in these cases on the natural instinct of humans to rescue others speak to the element of foreseeability in a negligence claim. In no way do they stand for the proposition that there is a legal duty to save human lives.

159Second, assuming that I had the power to overturn binding jurisprudence from the Supreme Court, I would not do so in these circumstances. The appellant’s criticism of Dickson J.’s reasons in Perka focuses on a single comment that a defence of justification could become a mask for anarchy. The appellant argues that this concern was only present in common law cases dealing with selfish acts of self-help (such as cannibalism),⁹¹ and not in unselfish acts to rescue others (such as pulling down a house on fire to prevent the fire’s spreading).⁹² Even if there is merit to this distinction, the substance of the passage suggests that Dickson J.’s concern was that a defence of justification would “invite the courts to second-guess the legislature and to assess the relative merits of social policies underlying criminal prohibitions.”⁹³ The concern appears well-founded on the facts of this case. The trial judge was correct to rely on Dickson J.’s reason in Perka.

160The appellant’s arguments do not persuade this court that the trial judge erred in concluding that the defence of necessity was not available to her.

Mistake of Fact

161The appellant believes that a foetus is a human being, a state of facts which, if true, would justify or excuse her breach of probation and mischief charges. She argues that if a foetus is not a human being, then it must be an animal by default. Animals are protected from wanton and needless killing under s. 445(1)(a) of the Criminal Code.

162For the common law mistake of fact defence to apply, the appellant must honestly believe in circumstances which, if they were true, would render her conduct innocent.⁹⁴ The defence does not operate to excuse criminal conduct based on a disagreement with the current state of the law. As stated in s. 19 of the Criminal Code, “Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.”

163The trial judge interpreted the appellant’s attempts to argue a mistake of fact defence as “a palpable effort to sneak the viva voce evidence in through the window after the doors had been closed.” He stated that the very notion that the appellant was operating under a mistake of fact struck him as entirely disingenuous. She knew that the legal status of a foetus is a question of law. She just fervently disagreed with it. And she knew exactly what was going on at the clinic.⁹⁵

164I see no error in the trial judge’s analysis.

165As for the animal cruelty argument, it seems to me that the appellant once again falls into the error of mistaking a legal category for a “natural” or “factual” category. Whether a foetus falls under the category of “animals,” as the term is used in the Criminal Code, is a question of law. A finding that a foetus does not fall under the legal category of a person does not necessitate the conclusion that a foetus must fall under the legal category of animals.

166As the trial judge noted, “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.”⁹⁶ I have little difficulty in finding the animal cruelty provisions of the Criminal Code do not apply in this case.

The Probation Orders

167The appellant argues that her probation orders are unconstitutional because they violate her freedoms of conscience, speech, expression and liberty to save human life and offend ss. 2 and 7 of the Charter.

168The trial judge found that the appellant’s arguments regarding the constitutionality of her probation orders were barred by the rule against collateral attacks on court orders. He held that the appropriate forum for such arguments is before the trial judge and, thereafter, before an appellate court if her arguments did not find favour at trial.⁹⁷

169The trial judge referred to Canada (Human Rights Commission) v. Taylor, where McLachlin J., as she then was, speaking for the minority, said:

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.⁹⁸

170In response to submissions made by counsel for the appellant, the trial judge acknowledged that a breach of probation might be justified under the defence of necessity if, for example, it involved saving someone from death in a burning building or rescuing inmates from a concentration camp in Nazi Germany. But the trial judge did not view the appellant’s attendance at the clinic in a similar light.

171He found that the appellant 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.”⁹⁹

172The trial judge did not err in his analysis of the rule against collateral attacks on court orders.

173 Section 732.1(3)(h) of the Criminal Code specifically authorizes a sentencing judge to impose reasonable conditions on an offender to protect society and to facilitate reintegration into the community.

174In my view, the condition prohibiting the appellant from being within 100 meters of any abortion clinic was reasonable, given her actions at the clinic, her wilful and flagrant breaches of past orders and her admission that she will not be deterred from breaking the law.

175Accordingly, there is no merit to this ground of appeal.

Disposition

176For these reasons, the appeal is dismissed.

Dunnet J.

Released: December 22, 2016

CITATION: R. v. Mary Wagner, 2016 ONSC 8078

COURT FILE NO.: CR-14-40000083-00AP

DATE: 20161222

ONTARIO

SUPERIOR COURT OF JUSTICE