R. v. Wagner, 2015 ONCJ 66

COURT FILE No.: Toronto DATE: 2015.02.12 Citation: R. v. Wagner , 2015 ONCJ 66 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — and — MARY WAGNER Before Justice Fergus ODonnell Reasons For Judgment At Trial Ms. Tracy Vogel for the Crown Mr. Charles Lugosi for the defendant, Mary Wagner Fergus ODonnell, 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 [1] being that she had sneaked into the locked clinic and sought to intercede with various clinic patients by offering them roses and pamphlets in an effort to have them reconsider their interest in having an abortion. This all allegedly happened while Ms.

Wagner was bound by two probation orders, each of which required her to keep the peace and be of good behaviour and one of which more specifically prohibited her from being on the premises of any abortion provider in Ontario and from communicating with any person at an abortion facility in Ontario. Ms. Wagner believes that abortion involves the termination of human life and is the equivalent of murder. Indeed, I expect Ms. Wagner would leave the words “the equivalent of” out of that last sentence. [2] 2 .

As it turned out, unlike most trials, this trial was hardly, if at all, about whether the Crown could prove beyond a reasonable doubt that Ms. Wagner had done the acts alleged, but rather about whether or not Ms. Wagner was justified in doing what she admitted doing when she testified. As I noted above, it is the view of Ms.

Wagner and her many supporters that a foetus has the same status and same right to protection as any of the rest of us and that since the patients of the abortion clinic were presumably there to terminate the lives of their foetuses, she was entitled to intervene as she did in order to save those lives. Indeed, Ms. Wagner would say she was duty-bound rather than “entitled” to act as she did. 3 . In the course of what turned out to be a long and protracted trial we ended up meandering through a variety of issues and historical way-points including what exactly Ms.

Wagner did at the clinic (which, as I have noted, was pretty much a side-show compared to the other issues), whether Ms. Wagner should have access to the clinic records concerning the patients, the Criminal Code definition of “human being”, the legal status of the unborn in Canada, the Ten Commandments, the history of abortion proscription through the ages, tort law, the Civil Code of Quebec , the distinction between the rule of law and rule by law, the law of “self defence of others” (two versions, given a change in the Criminal Code after Ms. Wagner’s visit to the clinic but before her trial), Ms.

Wagner’s standing to bring a constitutional challenge, a trial court’s power to decline to hear viva voce evidence on a Charter issue, a forest of Supreme Court of Canada decisions, Franz Kafka’s classic novel, The Trial, a biology lesson that might cause a judge to reconsider the wisdom of having bailed from science classes after grade 10, Dred Scott , one of the most notorious decisions in the history of the United States Supreme Court, [3] and the Nuremberg Trials. I may not deal with every one of those issues in these reasons, [4] but the list gives some flavour of the trial and the argument.

While the proceedings were marked at times by some palpable exasperation between the parties, any such exasperation was greatly exceeded by enduring civility manifested in dealing with a time-consuming and emotion-laden set of issues.

4 . Ms. Wagner was in custody for the entirety of the proceedings. While at the outset her detention may have been brought about by factors external to her, ultimately, given the drastically watered-down bail she was offered and which she persistently rejected, her long detention was very much the product of her obstinacy or her devotion. Which characterization is more apt, fortunately, is not one of the issues I have to determine. The depth and sincerity of her beliefs, her selfless commitment to those beliefs and the quiet dignity she manifested throughout the proceedings cannot, in any event, be gainsaid. 5 .

Insofar as Ms. Wagner was in custody (for almost two years), I delivered my judgment the day that the argument was concluded. I found Ms. Wagner guilty of all of the charges and imposed sentence that day. These are my reasons. The Evidence of the Alleged Offences 6 . I have said that the question of precisely what Ms. Wagner did at the clinic was largely a sideshow in these proceedings. The bigger questions included whether her conduct was justified by the law of self-defence or necessity, which in turn engaged the contentious issue of whether or not a foetus is a human being. It is Ms.

Wagner’s contention, and she is not alone in this, that a foetus is a human being and that it acquires that status at the moment of conception. In keeping with the fact that many things were not in dispute, there was no issue that Ms. Wagner attended at the clinic on the day in question, at a time when she was bound by two probation orders prohibiting any such attendance.

Although we danced around the head of a pin on this issue to a certain extent, it was agreed that, if a foetus is a human being, then whatever actions were taken by the clinic to abort the foetuses whose mothers attended the clinic, that conduct would be assaultive in nature (to say the least) vis a vis the foetuses, assaultive conduct being necessary to trigger the law of self-defence (assuming that Ms. Wagner had standing to raise the issue of self-defence of others, which, along with the status of the foetus in law was a bone of contention between the parties).

It was an admitted fact that the patients who were at the clinic did terminate their pregnancies at the clinic. 7 . On 15 August, 2012 Ms. Wagner was bound by two probation orders, one imposed by Justice Bassel on 13 September, 2011 and the other imposed by Justice Clements on 21 March, 2012. Those orders each required her to keep the peace and be of good behaviour and Justice Clements’s order prohibited Ms. Wagner from being on the premises of any abortion provider in Ontario and, separately, from communicating with any person in such premises. On 15 August, 2012 Ms.

Wagner gained entry to the Women’s Care Clinic, an abortion clinic in Toronto and allegedly communicated with patients in the waiting room and corridor and disrupted the work of the clinic thereby. I heard details of what happened in the clinic from: a . The medical director of the clinic, Dr. Sarai Markovic; b . Two of the receptionists, June and April; c . One of the nurses, Khatija; d . One of the arresting officers, Constable Richard Mau; e . Ms. Wagner. 8 . Jane, the receptionist, testified that she worked behind the Plexiglas that separates the reception area from the smaller, outer waiting room.

Early on 15 August, 2012 a co-worker told her to go out to the waiting room, where she found Ms. Wagner crouched beside a client and her companion, holding a rose and softly asking the client to change her mind about her appointment. There were other clients in the waiting room, along with their support people. The client appeared very uncomfortable and was crying and her companion put his arm around her. Jane told Ms. Wagner repeatedly to leave, but she did not. Ms. Wagner asked Jane if she worked there and then told her she should get another job. 9 . Jane kept asking Ms.

Wagner to leave and opened the corridor door, but she did not leave. The nurse-manager, Khatija, then came out, told Ms. Wagner the clinic was private property and asked Ms. Wagner to leave, but she refused. Eventually, Jane and Khatija pulled Ms. Wagner out of the clinic, Jane using her hands on Ms. Wagner’s arm. Ms. Wagner leaned back to resist their efforts. Jane did not recall Khatija threatening physical harm to Ms. Wagner. 10 . Khatija, the nurse, testified that she was taking a telephone call when she saw Ms. Wagner in the outer waiting room, with roses and pamphlets, making contact with patients.

She told Jane to go out and deal with it while she was on the phone call. She could see Jane approach Ms. Wagner and hear parts of the conversation. Ms. Wagner kept trying to give out pamphlets and flowers and even tried to get into the second waiting room, where about six patients and their partners or companions were waiting behind a glass partition. She tried to talk through the Plexiglas and held up a pamphlet against the glass. She was talking about Jesus and about killing babies. Ms. Wagner’s voice was medium to loud, but calm, “like someone giving a sermon”.

After she finished the phone call, Khatija herself went to the outer waiting room and told Ms. Wagner that this was private property, she was not allowed there, she was not allowed to drop off her “paraphernalia” there and that she had to leave. Khatija said that, as an emergency nurse, her voice would have been quite stern in addressing Ms. Wagner. Ms. Wagner was “pretty resistant and obstinate. She doesn’t want to move.” Khatija took the pamphlets from the outer waiting room and threw them in the corridor. When Ms. Wagner still refused to move, Khatija told the other receptionist, April, to call 911.

Around the same time they were trying to direct patients from the outer waiting room to the inner waiting room and to direct incoming patients to another door. At one point, Khatija took over the 911 call. When Ms. Wagner failed to leave after several requests, they started backing her towards the door. Khatija told Jane to open the door and grabbed Ms. Wagner’s shoulder. They got her into the corridor. 11 . In the corridor, Ms.

Wagner set up her pamphlets and Jesus icons by the clinic door, but then saw that the staff were letting patients into the clinic by its second door, which was closer to the elevator, so she moved over there. Khatija stayed out there with Ms. Wagner, with April, the other receptionist coming and going from the corridor with patients. 12 . In her testimony April said she saw Ms. Wagner after she had gained entry to the outer waiting room and told Ms. Wagner through the Plexiglas multiple times that she should leave. Ms. Wagner did not respond.

She kneeled in front of two clients, putting her hand on theirs and asking them to reconsider, while offering them pamphlets and roses. The clients were obviously upset, cried and looked sad. April called the police and notified Khatija that Ms. Wagner was there. She saw Khatija go to the outer waiting room and repeatedly ask Ms. Wagner to leave. Ms. Wagner said she had a right to voice her opinion and tried to get in the larger waiting room after all the patients had been transferred in there. April described how, for as long as Ms.

Wagner was there, most of the activities of the clinic were at a standstill. 13 . Once Ms. Wagner had been removed to the corridor, April went out there to assist clients arriving to the clinic. Ms. Wagner told April that she was murdering children and should get another job. While Ms. Wagner was pacing and praying in the corridor, a woman came out from another office and asked Ms. Wagner to protest outside (the building) because her presence was disrupting their patient traffic. Eventually, April went downstairs to escort the police up. When she returned with the police, Ms.

Wagner was telling a patient leaving the clinic to ask for forgiveness; that patient was, “very upset. She was crying to the point where she was hyperventilating”.

14 . Dr. Markovic testified that the clinic is private property. It is accessible by a door to the corridor of the building. That door is kept locked and access is controlled through a buzzer and video camera. The reason it is locked is, “because we don’t want anti- abortion people to come in.” Behind the corridor door is a small outer waiting room that is separated by Plexiglas from a receptionist who controls the corridor door. A larger waiting room is also adjacent to the outer waiting room. Access to the larger waiting room is controlled by a lock.

The two-waiting room set-up was designed because “this lady” (it is unclear if that was Ms. Wagner or someone else, but nothing hangs on it), had come to the clinic before when there was only a single waiting room. The dual waiting room system reduces the number of patients that a protester could interfere with if he or she gained access to the clinic. Behind the larger waiting room are offices for counselling and behind those offices is the operating room. 15 . Dr.

Markovic testified that she was in the operating room performing a medical procedure on a patient around 9 a.m. on 15 August, 2012, along with two staff members and a patient, when one of her nurses, Khatija, came and told her of Ms. Wagner’s entry into the clinic. She told Khatija to call 911, move the patients into the larger waiting room and ask Ms. Wagner to leave. 16 . Dr. Markovic testified that it is important that patients be calm.

Apparently if a patient is confronted with allegations of being a “baby killer”, they get upset, which requires additional counselling and a lot more medication to calm them down. Patients are conscious during the procedure. If they are not calm, it increases the risk of the doctor making a mistake, such as perforating the uterus or an artery, which could cause complications or even death. The patient Dr. Markovic was operating on when Khatija brought the news of Ms. Wagner’s presence appeared upset to Dr. Markovic—she started to cry. Dr.

Markovic testified that she continued with the procedure but had to take more time and give the patient more medication and time to relax. This occasioned a delay of five or six minutes. The nurse, Khatija, confirmed Dr. Markovic’s testimony about the impact of Ms. Wagner’s visit on patients during abortions that day and the added time and medication required. 17 . About ten or fifteen minutes later Dr. Markovic was performing a “procedure” on another patient when Khatija came back to report that Ms. Wagner had left the clinic itself, but was out in the corridor praying loudly.

After she finished with the second patient, Dr. Markovic went out into the corridor to check on her secretary, April, who she had been told was out with Ms. Wagner. If Dr. Markovic had not felt the need to go out into the corridor, she would have dealt with other patients. She was delayed in that by about ten minutes. 18 . When Dr. Markovic went out into the corridor she saw red roses splayed about the main entrance to the clinic. Ms. Wagner was standing between the entrance and the elevator, telling three or four patients approaching the clinic not to enter, not to commit a murder, to take time to reconsider.

One of the patients got “very, very upset” and told Ms. Wagner to leave her alone and that her decision was her own business. Ms. Wagner was saying these things in a conversational tone of voice. Ms. Wagner did not use physical force. Dr. Markovic told Ms. Wagner to leave, but she did not leave. Dr. Markovic took the patients into the clinic and left her secretary, April, in the corridor with Ms. Wagner. She told April to stay with Ms. Wagner in the corridor until the police arrived because otherwise Ms. Wagner would just have sneaked back into the clinic. 19 . Dr.

Markovic testified that her secretary, April, was out in the hallway the whole time she was there; had Ms. Wagner not come to the clinic April would have been at her work-station doing administrative work and processing patients. She said that five or six of the ten to fifteen patients she saw that morning after Ms. Wagner’s behaviour were crying and it took at least an extra five or ten minutes to perform their procedures because of their upset. Some of them were fourteen years old.

Whereas normally one patient a year would call the clinic for post-treatment counselling, six or seven of that morning’s patients called back for that follow-up. 20 . Dr. Markovic denied that she was the “older woman” Ms. Wagner claimed had come out into the corridor who called Ms. Wagner a “psycho” or that she had told Ms. Wagner to “go fuck yourself”, language that Dr. Markovic said was “not my dictionary. I don’t use those words.” She did not slam the door; she pointed out that the door was self-closing. Dr. Markovic said that other than the cleaning lady, she is the oldest woman at the clinic.

The words attributed by Ms. Wagner to the “older woman” did not strike Dr. Markovic as the kind of language her cleaning lady would use. 21 . Dr. Markovic testified that she does not teach her clients embryology; they have access to all sorts of information before they come to her and when they come to her they have generally made up their minds. When they come to the clinic they spend twenty or thirty minutes with a counsellor.

If they are not sure of their decision they are told about other options, such as continuing the pregnancy, giving the child up for adoption and going home and thinking about their options further. The clinic provides referrals to gynaecologists and adoption services and further counselling services for those who are not one hundred percent sure that they want to proceed with the abortion. Khatija spoke of this issue as follows: Patients come in with a fair amount of knowledge before they enter to our clinic. They just want the procedure done.

They have tonnes of counselling and opportunities to go on pro-life websites and to address these issues. 22 . Constable Richard Mau attended at the clinic in response to the 911 call. He found Ms. Wagner in the corridor and told her that it was private property and she had to leave, to which she said that she chose to stay because of her convictions. During Constable Mau’s time there, Ms. Wagner tried to approach one patient coming out of the office and give her a rose. Faced with Ms. Wagner’s repeated refusals to leave under her own steam, Constable Mau and his partner each took an arm and escorted her out.

Upon confirming her probation conditions, she was arrested outside the building. 23 . Ms. Wagner testified that she is Roman Catholic and a member of the pro-life community. She has been engaged in pro-life activity for decades and has been arrested many times because of it, spending perhaps a total of two-and-a-half years in jail as a result of her activism. She has violated “bubble zones” around abortion clinics, “Because children’s lives were in danger.

The lives of human beings were in danger, and I needed to go and to speak for them.” Her obligation to intervene for the unborn arises from her faith and from a universal concern for others. She testified that, “it’s a certainty that each human being is precious and human life begins at conception; that life in the womb is – is a human being just like you are a human being.” Her criminal record reflects no moral wrongdoing, she said. 24 . Ms.

Wagner testified that in her view, people considering abortions need greater education, including information about the continuum of human life from fertilization to full adulthood. People considering an abortion have a right to full information about what is involved for the mother and the baby, from a health, emotional, physical and spiritual perspective and others have a duty to provide that information. While such information should be provided much earlier, providing information at the clinics is important because it is the, “last chance for the human being in their womb to be protected.” 25 . Ms.

Wagner testified that on 15 August, 2012 her intention was to protect unborn human beings who were going to be aborted. She sees the unborn as being under her protection and, in an abortion clinic, nobody else is likely to protect them. She hoped that some of the patients would accept the support she was offering because that has sometimes happened in the past. She offered the

rose to the patient as a gesture of peace and comfort and told her she had options. Each of the pamphlets she had with her had a purpose, one in connection with providing a place for mothers to stay and carry her child to term, another to show the development of the foetus and the finality of the decision to abort, another about the health and psychological risks of abortion, and so on. From her interaction with women who have had abortions, Ms. Wagner understood that abortion clinics typically provide minimal information to patients. 26 . Ms.

Wagner testified that she did not consider herself to be trespassing at the clinic, but rather to be acting out of necessity to protect human life that was in danger. While she was “technically” violating court orders by attending the clinic, “human life takes precedence over court orders…. Care for human life should be given highest priority.” Ms. Wagner says that if obeying natural law requires her to pay a penalty for breaking man’s law, she is prepared to pay that penalty. She will likely return to abortion clinics after this trial is over and pay whatever penalty ensues for that also. 27 .

With respect to what happened on 15 August, 2012, Ms. Wagner said she followed a young couple into the clinic and then approached another couple sitting in the outer waiting room, offered the young woman a rose and said there was support available for her. Within seconds, the receptionist Jane came out and told her to leave. Ms. Wagner kept engaging with the young woman, who eventually said, “I don’t want this”, whereupon Ms. Wagner said she left her and approached another couple. She said that Khatija entered the room before she could get to the second couple and she also told her to leave.

Khatija, she said, put her hands on Ms. Wagner to get her out and Ms. Wagner told her that was an assault, to which Khatija’s response was “charge me”. Around this time Ms. Wagner said she told someone behind the Plexiglas that she should get another job. 28 . Within a couple of minutes, the outer waiting room had been cleared and Ms. Wagner said she realized there was an inner waiting room, so she raised her voice loud enough for the people in that room to hear her and held a pamphlet up to the glass barrier between the rooms, imploring them not to go ahead with the abortions.

She tried to enter the inner waiting room, but it was locked. At this point Khatija renewed her efforts to remove her physically; with Jane’s help, they managed to get her out into the corridor. 29 . Ms. Wagner testified that for a while she was left alone in the corridor, so she prayed silently. After a while, April came out and went down by the elevator. She told April to find other work. Then Dr. Markovic came out and started screaming at her, calling her a “psycho” and telling her to “go fuck yourself”, before returning into the office.

After that, a woman came out from another office and said people in her suite were getting upset and asked Ms. Wagner to leave. 30 . Eventually Ms. Wagner noticed that patients were coming off the elevator and entering the clinic through the back door so she tried to engage with them, about five women in total, along with their supporters, but Khatija spoke over her. At one point, she said, Khatija threatened her, although Ms. Wagner could not recall the exact words. After Ms. Wagner said that Khatija was free to vent her anger, she said Khatija no longer raised her voice to her. [5] 31 . Ms.

Wagner accepted that her presence at the clinic did cause disruption and interfered with the business of the clinic. That was her intention. While she felt free to disobey a court order to protect the unborn, Ms. Wagner testified that she would not resort to violence for that purpose, because her faith requires her to lay down her life for others rather than to take up arms. Conclusions on the Evidence of What Happened At The Clinic 32 . The testimony I heard did not really strike me as requiring any particular findings of credibility. Ms.

Wagner came across as a sincere witness and I believe that I can place much credit in her testimony about what happened at the clinic. The same, however, can be said for the Crown witnesses. Indeed, I do not believe that this case really is about what happened at the clinic as opposed to what legal conclusions follow from what happened. The only glaring factual inconsistency is the question of whether or not Dr. Markovic came out of the clinic and called Ms. Wagner a “psycho” and swore at her, which she denies.

That question, of course, is entirely irrelevant to anything and I do not believe that resolving that question would even help me with any issue about the general credibility of Ms. Wagner or Dr. Markovic so I shall say no more of it. 33 . On the evidence before me, it is clear beyond any doubt that Ms. Wagner attended at the clinic and communicated with people there, in clear and wilful disobedience of the two probation orders.

Her conduct clearly disrupted the operation of the clinics and the treatment of the clinic’s patients in more than a trivial manner, thus making out the offence of mischief interfering with private property and her commission of that offence constitutes breaches of her obligation to keep the peace and be of good behaviour in each probation order. Before any pronouncement can be made on whether or not the charges have been proved beyond a reasonable doubt, however, I must consider whether or not the various arguments in Ms.

Wagner’s defence hold sway, including questions such as whether or not the Crown has disproved defence of others and necessity as argued by Ms. Wagner. The Law of Self-Defence/Defence of Others 34 . These events occurred in 2012. Between then and the time of the trial, Parliament changed the self-defence/defence of others provisions of the Criminal Code . [6] Ms. Wagner initially appeared to rely solely on the pre-amendment provisions, but I expressed my view that both versions should be considered and argued, after which Ms.

Wagner argued that she should have the benefit of whichever provision better served her, only to adopt the position late in argument that she was not relying on the new s. 34. [7] 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. 35 . The version of the law of self-defence/defence of others that was in effect at the time of the alleged offences was the object of significant confusion and criticism as being unduly complex.

One prominent professor, now a judge of this court, accorded the old provisions the label of, “the most confusing tangle of sections known to law,” [8] and other judges and commentators were equally uncharitable in their observations (In fairness, Professor Paciocco may not have considered s. 490’s eligibility for that title, although the quagmire that is s. 490 likely has less practical impact on people’s lives than the law of self-defence). There were various provisions in effect at the time (not necessarily particularly compatible with each other), but the one argued as being applicable to Ms.

Wagner’s case was

section 37, which stated as follows: 37.

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

(2) Nothing in this

section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

36 . This provision is dramatically different from the successor provision, which is set out further on in these reasons. A number of questions arise under

section 37 of the Code in effect in 2012, such as: a . What is the meaning of “force” in the

section and does it encompass Ms. Wagner’s intervention? b . Were the foetuses of the clinic clients “anyone”? This issue is addressed elsewhere in these reasons. c . If the foetuses were included within the word, “anyone”, were they under Ms. Wagner’s protection? 37 . It was argued on Ms. Wagner’s behalf that the word “force” is not limited to physical intervention, but could include her efforts at verbal persuasion. On the facts of this case, it is clear that Ms.

Wagner was not physically assaultive at any time and even her resistance to being removed from the clinic was clearly passive resistance, using only the weight of her body to make removal difficult. 38 . From a purely linguistic perspective, the word “force” is capable of many meanings. To the grade ten student, “force” and the formulae relating to it are either the entrée to great career potential or reasons for eternal enmity towards Sir Isaac Newton. A boxer might succumb to the force of his opponent’s blows. A contracting party’s liability might be excluded in case of force majeure.

Martin Luther King, Jr. might be said to have dominated the political landscape of the United States by the force of his convictions, his personality and his oratory. Undoubtedly, many judges have heard “forceful” submissions from counsel, as did I in this case. I think it can fairly be argued that Ms. Wagner’s efforts at persuasion in the clinic fit within some linguistic

definitions of “force”. That, however, is not the end of the inquiry. 39 . The word “force” is not defined in the Criminal Code . It is, however, used in numerous sections of the Code and its use in those sections within the same statute is a legitimate source of enlightenment as to its meaning in the self-defence/defence of others provisions of that same statute. Among the places where the word “force” is used in the Code are: a . Section 25(1), which empowers persons enforcing the law to “use as much force as is necessary for that purpose.” b .

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

Section 26 criminalizes the excessive use of force by persons authorized to use force. d .

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

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

Section 30 authorizes the use of “no more force than is reasonably necessary” to prevent a breach of the peace. g .

Section 32 authorizes the use of force to suppress a riot. h . The present s. 34 of the Code makes repeated use of the word “force”. i . The former

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

Section 43 allows teachers, parents and others to use force by way of correction of a child or pupil if the degree of force is reasonable under the circumstances. k . Section 46(2) (

a) defines treason as including the use of “force or violence” to overthrow the government of Canada or a province. l .

Section 59, the sedition provision, criminalizes advocating the use of force as a means of governmental change. m . The unlawful assembly provision of the Code, in s. 68 makes it an offence for any person who “opposes, hinders or assaults, wilfully and with force” a person seeking to proclaim an assembly to be unlawful. n .

Section 76 of the Code describes hijacking in terms of, “unlawfully, by force or threat thereof” exercising or seizing control of an aircraft for defined purposes.

Section 78.1 provides likewise for seizure of a ship or fixed platform. o .

Section 144 makes it an offence “by force or violence” to cause a prison break. p . The Criminal Code vitiates consent in sexual matters, e.g. if, “the consent is extorted by force, threats or fear of bodily harm…” (e.g. s. 159(3) (b)(ii).). Likewise, a complainant’s failure to resist a kidnapping or forcible confinement is irrelevant unless the defendant can show that the failure to resist was not brought about by “force or exhibition of force” (s. 279). q . Section 176(1) of the Criminal Code makes it an offence “by threats or force” to obstruct the clergy from performing divine service, an indictable offence. Sections 176(2) and (3) , by distinction, make it a

summary conviction offence wilfully to disturb such a meeting. r . Section 265(1) of the Criminal Code includes as one of the

definitions of “assault”, the non-consensual, intentional application of “force” to another person. The

section goes on to vitiate any “consent” obtained by the application of force or fear of the application of force. 40 .

Section 12(

b) of the Controlled Drugs and Substances Act empowers an officer executing a search warrant to, “use as much force as is necessary in the circumstances”. 41 . I also note that the sabotage provision in s. 52 of the Criminal Code provides an explicit exemption from criminal liability for the type of behaviour alleged against Ms. Wagner in the present case, as follows:

(4) No person does a prohibited act within the meaning of this

section by reason only that he attends at or near or approaches a dwelling- house or place for the purpose only of obtaining or communicating information. 42 . In R. v. Conception, [9] the Supreme Court of Canada has most recently re-affirmed the current governing approach to statutory

interpretation as follows: [14] This issue raises a question of statutory

interpretation which must be resolved according to the modern principle of statutory

interpretation: “the words of

an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament” (R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 1, citing E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87). We underline that the starting point is the text of the provisions in their grammatical and ordinary sense.

43 . I think that even if one were to start with the view that the word “force” in the English language “can” encompass the type of persuasion that Ms. Wagner sought to engage in at the clinic, a reading of the Criminal Code overall suggests that the word “force” as used repeatedly therein was intended by the legislator to refer to

an act of violence or constraint or something similar. Virtually all of the uses of the word “force” in the Criminal Code otherwise make little or no sense. For example, section 25(1), which protects police officers from liability for the use of “force” would scarcely be necessary to protect them from liability for verbally persuading an offender to put down his gun.

Section 27, safeguarding a person from the use of force to prevent the commission of an offence would seem redundant if “force” included simply talking a person out of committing an offence, since talking to someone is hardly likely to engage criminal liability in those circumstances. Likewise, in s. 32, it is hard to image that Parliament seriously thought it was necessary to safeguard a person from criminal liability for verbally persuading people not to riot. In the old s. 34, the idea that “force” includes “persuasion” is entirely irreconcilable with the balance of the section. The same is true of the language of the old

section 35. In a different context, there are references to the obtaining of consent (re assaults, certain sexual offences) by “force”, whereby Parliament holds that consent obtained by force is irrelevant. It would be peculiar if “persuasion” were to expose an individual to criminal liability in such circumstances. 44 . I suppose it might be argued that the occasional use of the words “force or violence” in the Criminal Code means that “force” does not necessarily include violence.

I think, rather, that such language simply reflects the lawyer’s and draftsperson’s frequent failing in often preferring two words where one would do, purely out of an abundance of caution. I do not think that causing a prison break by “[persuasion] or violence” was the object of s. 144 of the Criminal Code. 45 . I also note the dramatic difference between the old provision and the new provisions, which may, to some extent, be informative with respect to the meaning of the old provisions.

The new provision, set out hereafter, moves entirely away from the narrower concept of justifying a person’s use of “force” to the much broader concept of justifying a person’s “act”. 46 . Accordingly, I do not accept the argument that Ms. Wagner can shelter herself under s. 37 because her conduct at the clinic does not, by its terms, fit within the use of force as required by any sensible reading of the section. To give “force” the meaning she asks would do violence to the clear and inescapable intention of Parliament in its choice of that word. 47 . I also cannot accept Ms.

Wagner’s contention that (assuming for present purposes that the foetus counts as “anyone”), the unborn foetus was “under her protection.” For that argument to be valid, the words “under her protection” would have to be read as being entirely redundant. The argument as framed by Ms. Wagner really suggests that anyone is under everyone’s protection. If that had been Parliament’s intention, the words “under his protection” would not have appeared in the provision.

It seems clear to me that the words “under his protection” were intended by Parliament to limit the shelter of the old s. 37 to defendants who bore some special relationship (by fact or invitation) to the person being protected or who were under some legal obligation to extend protection to that person. While it may be argued that a law providing broader protection to the “good Samaritan” would have been better public policy, that is not the law that Parliament adopted in

section 37. The new

section 34 appears to remedy that shortcoming. 48 . It was argued on Ms. Wagner’s behalf, that there are cases interpreting “under his protection” very broadly. For example, Ms. Wagner refers to the trial decision of the Ontario Court (General Division) in R. v. Webers, [10] as authority for that proposition. I am prepared to agree that “under his protection” is not a closed or defined class of cases, but it has to mean something. Thus, in Webers, the fact that the person Mr.

Webers intervened to protect from a blatantly unlawful and outrageous assault by eight hospital staff and police officers on a twenty-year employee of his who looked upon him as a father and whom he had escorted to the hospital when she was experiencing a breakdown, could very reasonably qualify as a person “under his protection” within the meaning of s. 37 of the Code . The language of O’Connor, J. to the effect that, “it means anyone who requires protection which the accused may be able to provide,” [11] is clearly obiter and, with all due respect, hard to reconcile with the language of the section.

Likewise, I do not have difficulty accepting that if a person recruits a stranger to assist him and the stranger agrees to offer that assistance, the relationship of a person under the stranger’s protection has likely thereby been created. This is the scenario in R. v. Barkhouse, [12] where a person was called in aid to resist an unlawful vehicle seizure, although I note that the judge in that case did not go so far as to actually find that Mr. Barkhouse was protected by the then s. 37 language of defending a person “under his protection”. 49 . Ms.

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

Duffy, [13] that, “there is a general liberty even as between strangers to prevent a felony.” 50 . I fear that this repeated reliance on the common law of defence of others fails to recognize the qualifying language of s. 8(3) of the Criminal Code, namely, “except in so far as they are altered by or are inconsistent with this Act…” The restrictive language of s. 37, as it was, seems palpably inconsistent with a regime where it would apply even as between strangers, unless perhaps the defendant had been expressly recruited by the stranger to come to his or her aid.

Obviously, no such call in aid could have occurred here insofar as the “persons” in need of assistance were foetuses. [14] 51 . I cannot accept that the common-law defence was available to Ms. Wagner to, in effect, circumvent the restrictive language of the former s. 37 as enacted by Parliament. In any event, unless the foetus was a “person” and the mother’s use of force on that “person” was unlawful, the common law would not authorize Ms. Wagner’s intervention. As we shall see below, since s. 251 of the Criminal Code was struck down, there is no law prohibiting abortion in Canada. 52 .

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

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

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

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

(

c) the act committed is reasonable in the circumstances.

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

a) the nature of the force or threat; (

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

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

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

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

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; ( f.1 ) any history of interaction or communication between the parties to the incident; (

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

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. 53 . As I noted above, when the new self-defence provisions came into effect there was controversy about whether or not, as substantive law, they would have retrospective application. As mentioned earlier, I found the reasoning of MacDonnell, J. in R. v. Pandurevic, supra, and of Paciocco, J. in R. v. Parker, supra, compelling and, as such, was satisfied that the new s. 34 of the Criminal Code was also available to Ms. Wagner, a view that I communicated to the parties.

I observed that neither Crown nor defence focused long on the issue, in the Crown’s case presumably because it felt that however much more favourable the new s. 34 might be to Ms. Wagner’s position, the Crown’s contention that a foetus is neither “any one” nor “another person” was unanswerable. 54 . I think that, with the exception of the issue of the status of the foetus, the new s. 34 remedies the language of the old s. 37 that, in my opinion, precluded Ms. Wagner from having resort to its protection.

The new s. 34 applies to any alleged offence where the defendant’s act was in response to the perceived use of force or threatened use of force against the defendant or “another person”. This would potentially cover both the mischief and breach of probation charges. “Another person” is entirely unqualified, this making it seem clear that it was Parliament’s intent to safeguard the good Samaritan if he or she stayed within the boundaries defined by the new s. 34 . 55 . Under the new s. 34 it would seem that Ms. Wagner would tick a couple of the boxes. There is no disputing that Ms.

Wagner reasonably believed that the foetuses of the clinic patients were in imminent danger of being subjected to (deadly) force. There is no disputing that her intercession was intended to protect the foetuses from that imminent peril. The remaining questions are (1) whether or not the foetus is “another person”; and, (2) whether or not her acts were reasonable in the circumstances. In respect of the second inquiry, it would seem to me that Ms.

Wagner would probably have little difficulty demonstrating the imminence of the threat or the likely use of a “weapon” in the feared use of force against the foetuses, but I expect she would have significant difficulties with the following parts of the new s. 34(2): (b) “whether there were other means available to respond to the potential use of force”; (h) “ whether the act committed was in response to a use or threat of force that the person knew was lawful”. 56 . I do not see how Ms. Wagner could succeed, even under the new s. 34(1)(c), in light of, at a minimum, ss. 34(2)(

b) and (h). These events occurred in mid-2012. By that time, the pro-life movement was a long-established and significant community with the resolute backing of powerful religious and other forces; it was no shrinking violet and no marginalized group. By that time, the Internet was fully entrenched in modern society and its capacity via “crowdfunding” for people and groups to amass very substantial resources for a common goal was already well established. These are neither novel nor obscure realities. It was the view of Ms. Wagner and those with whom she worked that the killing of every foetus was a murder.

However personally well- motivated they may have been, her actions sought to impose her will and her world-view on emotionally vulnerable patients and their companions in a medical facility who were seeking lawful treatment, which Ms. Wagner knew to be lawful under the law of Canada. Her intervention also affected the treatment and potentially the safety of those patients. The availability of other options, such as going to court to seek a declaration in relation to the lawfulness of abortion undermines Ms. Wagner’s ability to rely on the new s. 34 of the Criminal Code . 57 . I do not know whether Ms.

Wagner went to the clinic that day hoping to be charged criminally, hoping to have a prominent pulpit from which to argue her cause and hoping, as in indigent criminal defendant, to have her challenge to the abortion law funded by the state as she ultimately sought to do in this trial. Whether events were planned that way or that was just the way it played out is irrelevant for present purposes. What is relevant is that there was at least one other path open to Ms. Wagner for her to raise a legal challenge to abortion by way of application in Superior Court.

Given the size of the pro-life movement and the success of much less significant crowdfunding causes, any such challenge could easily have raised a significant war chest to fund the litigation without selecting individual patients and their partners as pawns in Ms. Wagner’s campaign. [15] I appreciate fully Ms. Wagner’s position that her acts were performed to save human life, but there are two perspectives to almost every argument. 58 . I should also note, that to the extent that it might be argued that an application for a declaration that personhood attaches upon

conception and that abortion is therefore murder would not save lives that day, that argument strikes me as somewhat of asophism: why, then, was Ms. Wagner not at the clinic the day before, or the week before that? If Ms. Wagner’s argument aboutwhen personhood attaches is correct, why try to save one or two lives when one could more readily save tens of thousands by anapplication?[16] Necessity 59. It was also argued on Ms. Wagner’s behalf that the defence or excuse of “necessity” was available to her. I do not agree.60.

As I have noted above, common-law justifications and excuses are largely preserved in Canadian criminal law by s. 8(3) of theCriminal Code. Ironically, the history of the availability of necessity in Canadian law wends its way through the travails of one ofMs. Wagner’s nemeses: see Morgentaler v.

The Queen,[17] but it found its clearest definition nine years later when a ship ladenwith drug smugglers and tonnes of marihuana bound from Colombia to Alaska found it necessary to set ashore on VancouverIsland as a result of weather and mechanical difficulties, whereupon they were beset by the Royal Canadian Mounted Police. InPerka v.

The Queen,[18] Dickson, C.J.C., who, nine years earlier, had expressed at best lukewarm openness to the possibleexistence of a defence of necessity in Morgentaler (1975), supra, clearly recognized that a “defence” of necessity existed andexpanded greatly upon when “necessity” would excuse a person from criminal liability for his acts.61. In Perka, supra, Dickson, C.J.C. traced the defence of necessity back to Aristotle. He observed that the defence actuallyencompassed two separate concepts and that the failure to distinguish between them was the source of substantial confusion.

Asexpressed by the Appellate Division of the Nova Scotia Supreme Court in R. v. Salvador (1981), (NS CA), 59C.C.C. (2d) 521,[19] a case along the same lines as Perka, supra, “necessity” covers cases, (

a) where an emergency excuses non-compliance with the law; or (

b) where the actor’s pursuit of some greater good justifies the otherwise unlawful conduct. As theLaw Reform Commission of Canada noted, as cited by Dickson, C.J.C., the former of these is a utilitarian philosophy, the latter ahumanitarian philosophy.62. Dickson, C.J.C. addresses the two concepts as follows in Perka, supra:[20] It will be seen that the two different approaches to the “defence” of necessity from Blackstone forward correspond, the one to ajustification, the other to an excuse.

As the examples cited above illustrate, the criminal law recognizes and our Criminal Code codifies anumber of specific categories of justification and of excuse. The remainder, those instances that conform to the general principle but donot fall within any specific category such as self-defence on the one hand or insanity on the other, purportedly fall within the “residualdefence” of necessity. As a “justification” this residual defence can be related to Blackstone’s concept of a “choice of evils”.

It would exculpate actors whoseconduct could reasonably have been viewed as “necessary” in order to prevent a greater evil than that resulting from the violation of thelaw.

As articulated, especially in some of the American cases, it involves a utilitarian balancing of the benefits of obeying the law asopposed to disobeying it, and when the balance is clearly in favour of disobeying, exculpates an actor who contravenes a criminal statute.This is the “greater good” formulation of the necessity defence: in some circumstances, it is alleged, the values of society, indeed of thecriminal law itself, are better promoted by disobeying a given statute than by observing it.

With regard to this conceptualization of a residual defence of necessity, I retain the skepticism I expressed in Morgentaler, supra, atp. 678. It is still my opinion that, “[n]o system of positive law can recognize any principle which would entitle a person to violatethe law because on his view the law conflicted with some higher social value”. The Criminal Code has specified a number ofidentifiable situations in which an actor is justified in committing what would otherwise be a criminal offence.

To go beyond thatand hold that ostensibly illegal acts can be validated on the basis of their expediency, would import an undue subjectivity into thecriminal law. It would invite the courts to second-guess the legislature and to assess the relative merits of social policiesunderlying criminal prohibitions. Neither is a role which fits well with the judicial function. Such a doctrine could well becomethe last resort of scoundrels and in the words of Edmund Davies L.J. in Southwark London Borough Council v. Williams, [1971]Ch. 734, it could “very easily become simply a mask for anarchy”.

Conceptualized as an “excuse”, however, the residual defence of necessity is, in my view, much less open to criticism. It rests on arealistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience oflaws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impeldisobedience.

The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they are excusable.Praise is indeed not bestowed, but pardon is, when one does a wrongful act under pressure which, in the words of Aristotle in theNicomachean Ethics, supra, at p. 49, “overstrains human nature and which no one could withstand”. (emphasis added) 63. At p. 259 of Perka, supra, Dickson, C.J.C. lists ten considerations that should be kept in mind when assessing the availability of anecessity “defence”.

I have reviewed those ten criteria and one of them strikes me as particularly cogent in the present case,namely: (8) the existence of a reasonable legal alternative similarly disentitles; to be involuntary the act must be inevitable, unavoidable andafford no reasonable opportunity for an alternative course of action that does not involve a breach of the law; It seems to me that Ms. Wagner’s necessity ship must founder on this rock. There was a “reasonable legal alternative” open to her, “analternative course of action that does not involve a breach of the law”.

Quite apart from her freedom to engage in various forms of

advocacy and in any public demonstrations that complied with the law and with her particular probation terms, it was always open to Ms.Wagner and those of similar world view to go to a civil court and to argue before that court everything that has been argued before me. Ihave dealt elsewhere in these reasons with why Ms. Wagner’s personal penury is irrelevant to her ability to pursue her cause in a civilapplication or action.

It might be argued that a civil action would not respond to the urgency of saving any foetuses that would have diedthat day, but that is, in the context of the abortion debate, a specious argument. That day was no different than any of the days before orsince.[21] The simple reality here is that Ms. Wagner does not agree with the law and chose to disobey it because she felt bound to doso by some higher calling. This is a formulation of the law of necessity that the Supreme Court of Canada rejected outright in Perka,supra. A Viva Voce Evidentiary Hearing on The Charter Issue? 64. It was Ms.

Wagner’s wish to call evidence in support of her argument about the status of the foetus and its right to protection underthe Charter. I asked the parties to address the issue of whether or not an evidentiary hearing was warranted. For the purposes ofaddressing that issue, I invited Ms. Wagner to file a written outline of what she expected her expert witnesses would say. For thelimited purpose of determining whether or not to enter into an evidentiary hearing on the science of human conception, foetaldevelopment, etc., that material would be taken as uncontroverted.65.

There is a long history of courts imposing time limits on counsel. Very tight limits on argument are a given in the Supreme Courtof Canada. Limits on oral argument have long been routine in the Court of Appeal for Ontario, sometimes serving as a challenge tothe loquacious counsel, sometimes holding out to the nervous young barrister the promise that his or her ordeal at the hands of thepanel will at least end by a time certain. In this court, operating on the theory that few if any judges require to be educated bycounsel on what R. v. Askov[22] or R. v.

Morin[23] say about the right to trial within a reasonable time, applications to stay chargesfor delay under s. 11(

b) are routinely tightly time-limited, with the admonition to counsel to focus on the particularities of theirclient and his or her case.66. Time limits in appellate courts have a longer pedigree than in trial courts, but the authority for imposing time limits and thecorollary that trial judges have the authority to exercise reasonable control over how cases are presented and how court time willbe allocated is unassailable.

That authority reflects the fact that court time is a finite resource with many litigants seeking to availthemselves of it and that the halcyon days when a single “provincial court” could hear two or three trials in a day are at best a“fond” reminiscence for older counsel and entirely implausible to younger counsel who did not live through that reality and whotake for granted that a routine impaired driving trial will take longer than a day. The present case is an example of thepost-Charter reality of trial scheduling.

Before the Charter, this trial might have taken two or three days, perhaps less.[24] I havelost count of how many appearances there have been and that is without having entered into an evidentiary clash of scientists,which would have added several more days.67. Two 1992 decisions of the Court of Appeal for Ontario clearly anchor a trial court’s power to decline to enter into an evidentiaryhearing in appropriate cases. In R. v.

Kutynec,[25] Finlayson, J.A. wrote for the court in the context of an application to excludeevidence at trial: In some cases, when the defence indicates, prior to the calling of evidence, that it intends to advance a Charter application to excludeevidence, the trial judge may call upon the defence to summarize the evidence that it anticipates it would elicit on the application. Thiskind of procedure is well known to the criminal process: see R. v. Sproule (1975), (ON CA), 26 C.C.C. (2d) 92, 30C.R.N.S. 56 (Ont. C.A.), at pp. 97-98 C.C.C., pp. 62-64 C.R.N.S., and R. v.

Dietrich, (ON CA), [1970] 3 O.R. 725, 1C.C.C. (2d) 49 (C.A.), leave to appeal refused, [1970] S.C.R. xi, [1970] 3 O.R. 744 n, at pp. 738-39 O.R., p. 62 C.C.C. If the defence isable to summarize the anticipated evidentiary basis for its claim, and if that evidence reveals no basis upon which the evidence could beexcluded, then the trial judge need not enter into an evidentiary inquiry.

In other words, if the facts as alleged by the defence in itssummary provide no basis for a finding of a Charter infringement, or a finding that the evidence in question was obtained in a mannerwhich infringed the Charter, or a finding that the test for exclusion set out in s. 24(2) was met, then the trial judge should dismiss themotion without hearing evidence. There is nothing unique in this position. Where an accused bears the burden of proving the admissibility of evidence, it is incumbent oncounsel to put forward a factual and legal basis on which the evidence could be admitted.

Counsel is not entitled to proceed immediatelyto a voir dire on the issue. The same principle should be applied where the onus is on an accused to establish that certain evidence isinadmissible. Kutynec dealt with an application to exclude evidence under s. 24(2) of the Charter, but there is no principled reason why a trial judge’spower ought not to be exercised in appropriate cases dealing with other Charter arguments. The breadth of the principle can be seen in acase that followed Kutynec, supra, by a few months. 68. R. v.

Durette et al.[26] was the Court of Appeal’s treatment of one of the great biker drug conspiracies of the 1980s. Theprosecution was so large that the Crown split it into two trials, a twelve-defendant trial in the then Supreme Court of Ontariofollowed by a twenty-seven-defendant trial in the then District Court. The issue of delay arose in the District Court trial anddefence counsel sought to call evidence on the Crown’s decision to split the trial, which the defence argued was the cause for thedelay.

To that end, the defence proposed to examine the officer-in-charge and two members of the Department of Justice aboutthe reasons for splitting the prosecution. The trial judge refused that request, which refusal became one of the grounds of appeal. Finlayson, J.A., speaking for the majority,[27] stated (at paragraph 31): In my opinion, because the burden of establishing a violation of the Charter falls on the accused, when an accused makes a Chartermotion he or she can be asked to stipulate a sufficient foundation for the claim or its constituent issues.

If such a foundation cannot bearticulated, I think the trial judge may determine that it is not necessary to hear evidence on the issue and he is entitled to dismiss the

motion: see R. v. Hamill (1984), (BC CA), 14 C.C.C. (3d) 338, 13 D.L.R. (4th) 275 (B.C. C.A.) [affd (SCC), [1987] 1 S.C.R. 301, 33 C.C.C. (3d) 110], at pp. 366-67 C.C.C., pp. 302-03 D.L.R. 69. Finlayson, J.A. placed this power in the context of the need to ensure that trials are not any more unwieldy and time-consumingthan they need to be (at paragraph 44): The Supreme Court of Canada and appellate courts across Canada have been attempting in recent years to restrict the issues that go to ajury to those which have, on the evidence, an air of reality to them.

Just as we have tried to restrict the trial of an accused on the merits tofactual issues that are directly raised in the particular case, so should we strive to restrict pre-trial Charter motions to matters of substancewhere defence counsel can establish some basis for a violation of a right. Unless we, as courts, can find some method of rescuing ourcriminal trial process from the almost Dickensian procedural morass that it is now bogged down in, the public will lose patience with ourtraditional adversarial system of justice.

As Jonathan Swift might have said, we are presently sacrificing justice on the shrine of process. 70. Age has not wearied the proposition advanced in Kutynec and Durette, supra, nor have the years condemned it. Although it dealtwith problems of a different order of magnitude from anything I encountered in this case, the language of the Court of Appeal in R.v. Felderhof[28] reinforces the validity of Kutynec and Durette, supra.

Speaking for the court, Rosenberg, J.A. stated: [40] Whatever may have been the case in the past, it is no longer possible to view the trial judge as little more than a referee who mustsit passively while counsel call the case in any fashion they please. Until relatively recently a long trial lasted for one week, possibly two.Now, it is not unusual for trials to last for many months, if not years. Early in the trial or in the course of a trial, counsel may makedecisions that unduly lengthen the trial or lead to a proceeding that is almost unmanageable.

It would undermine the administration ofjustice if a trial judge had no power to intervene at an appropriate time and, like this trial judge, after hearing submissions, makedirections necessary to ensure that the trial proceeds in an orderly manner. I do not see this power as a limited one resting solely on thecourt's power to intervene to prevent an abuse of its process. Rather, the power is founded on the court's inherent jurisdiction to controlits 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 runeffectively.

Sometimes, the exercise of this power may mean that the trial judge will require counsel to proceed in a different mannerthan counsel desired. 71. Affirmation of the principle can also be found even higher in the judicial pecking order. In R. v. Pires and Lising,[29] theSupreme Court of Canada endorsed Finlayson, J.A.’s concern about “the almost Dickensian procedural morass” when it stated: 35 The concern over the constructive use of judicial resources is as equally, if not more, applicable today as it was 15 years ago whenGarofoli was decided.

For our justice system to operate, trial judges must have some ability to control the course of proceedings beforethem. One such mechanism is the power to decline to embark upon an evidentiary hearing at the request of one of the parties when thatparty is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court. 72. 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 thiscase including these reasons was done in the time allotted), even assuming all facts are found in favour of the applicant, cannotpossibly result in the relief the applicant seeks, it lies within the trial judge’s power to decline to enter into that evidentiaryhearing. (Arguably, this is not just a matter of a judge’s power, but in a system with more demands on its time than time itself, it isarguably a judge’s obligation to the other participants in the system).

The question, of course is whether or not any given casefalls within the rule. In this case, for the reasons I state when I address the proposed evidence and the state of the law in Canada, itseemed inescapable to me that the evidentiary hearing sought had no conceivable chance of affecting the outcome of the case.73. I should make it very clear that I entirely reject the argument made on Ms. Wagner’s behalf that a judge’s power to decline to holdan evidentiary hearing is restricted to arguments about the violation of a Charter right as opposed to four other scenarios, namely:a.

A constitutional challenge to legislation under s. 52 of the Charter;b.

Interpretation of statutory language such as “anyone”;c. The question of reasonableness in a “mistake of fact” defence;d. The defences of necessity and the defence of others. I see nothing in the language of the cases to limit a trial judge’s power in the manner proposed and any such limitation strikes me aslacking any reference point in principle or in rationality.

The idea that a trial judge has no choice but to engage in a long and pointlessevidentiary hearing because the underlying issue is, e.g., the constitutionality of an enactment, whereas he could refuse such a hearing ifthe allegation were a violation of a right, is, to be charitable, peculiar. It is a distinction without a difference. 74. Neither does the principle of full answer and defence come to Ms. Wagner’s support. Every litigant enjoys that right. Not even adefendant in a criminal trial, however, enjoys the absolute right to arrogate to herself finite public resources. Ms.

Wagner’sarguments are not particularly novel. The foundation of each of them (i.e. the legal and constitutional status of a foetus) has beenaround 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. [30] 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. [31] “Thus Far Shalt Thou Go And No Further”? 75 . I should make it clear that while I believe I am entitled to ask the defence to make an “offer of proof” before allowing Ms. Wagner to advance her constitutional argument, I reject the Crown’s position that I really had no business even considering the issue because the Supreme Court of Canada had spoken. I find support for this approach in the decision of the Supreme Court in Canada (Attorney General) v.

Bedford, [32] which dealt with the constitutionality of various Criminal Code provisions purporting to regulate prostitution. It is inescapable that the present case touches on issues that have enjoyed much (albeit not recent) consideration by the Supreme Court of Canada itself, a court that operates on a level and with an authority and with precedential perquisites substantially above my own. Indeed, as I have mentioned it was the general purport of the Crown’s original argument that the field has been so completely tilled by the Supreme Court of Canada that neither I nor Ms.

Wagner really ought to tread upon it. While I do not consider that the law of stare decisis acts as quite as much of a latter-day privative clause as the Crown urged upon me, [33] the desirability or propriety of entering into a full-fledged evidentiary hearing that might lead nowhere is all the more concerning if it turns out that the defendant is in effect asking me to overturn the Supreme Court of Canada in circumstances where there has been no material intervening change in the law or the relevant science or other facts.

The guiding principles are set out thus by the Supreme Court of Canada in Bedford, supra: [42] In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue.

Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. [43] The intervener, the David Asper Centre for Constitutional Rights, argues that the common law principle of stare decisis is subordinate to the Constitution and cannot require a court to uphold a law which is unconstitutional.

It submits that lower courts should not be limited to acting as “mere scribe[s]”, creating a record and findings without conducting a legal analysis (I.F., at para. 25). [44] I agree. As the David Asper Centre also noted, however, a lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. In my view, as discussed above, this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence.

This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role. (emphasis added) 76. More recently, the Supreme Court of Canada in Carter v. Canada [34] reaffirmed the entitlement, indeed the duty, of a trial judge in appropriate cases to revisit decisions of appellate courts stating that: stare decisis is not a straitjacket that condemns the law to stasis.

Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”… As we shall see below, the proposed evidence filed on Ms. Wagner’s part falls far, far short of, “fundamentally [shifting] the parameters of the debate,” and there was no demonstration of any new legal issue. Indeed, it was put rather bluntly in Ms.

Wagner’s materials that only a change in the composition of the Supreme Court of Canada is likely to change anything for her cause. The Legal Background To, And Viability of, Ms. Wagner’s Constitutional Argument 77 . The Criminal Code defines homicide as causing the death of a “human being”, a term that is not defined in s. 2 of the Criminal Code , although, s. 223 of the Code says: 223.

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

a) it has breathed; (

b) it has an independent circulation; or (

c) the navel string is severed. It is Ms. Wagner’s contention that denying a foetus the status of “human being” violates the Charter of Rights and that s. 223 of the Criminal Code is thus inconsistent with the Charter . She also says that the “defence of others” provisions of the Criminal Code must be

interpreted in a fashion that recognizes the foetus as being encompassed within its protective scope. It is her contention that the foetus is entitled to the same constitutional protections, including the right to life, that are enjoyed by everyone else after birth and that her actions in defence of that right to life were thus justified. It is Ms. Wagner’s contention that conception is the start-point of the life of a human being and that any termination of the foetus’s existence would be murder. If she is correct, abortion, in all or most circumstances, would be murder. [35] 78 .

The Charter of Rights guarantees certain rights. Among these rights in s. 7, for example, is, “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” This is a right guaranteed to “everyone”. The obvious question is whether or not a foetus falls within the meaning of “everyone” in the Charter. The Charter uses different terms to define who enjoys various rights.

For example, some rights are limited to “every citizen of Canada”, many rights are guaranteed to “everyone” including certain rights that arise on arrest or detention, while, for reasons that are not clear the protections given when a person is charged with an offence are given to “any person charged with an offence” rather than to “everyone charged with an offence.” 79 . The issue of abortion rights and foetal rights is one of the most divisive issues in society. The controversy was particularly prominent in the last quarter of the last century.

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

I shall review several of those decisions below. [36] 80 . In 1987 the case of Borowski v. Canada [37] reached the Saskatchewan Court of Appeal. Mr. Borowski challenged the then s. 251 of the Criminal Code , which criminalized abortion with a maximum sentence of life imprisonment (two years if the defendant was the pregnant woman), but permitted abortions if a hospital’s “therapeutic abortion committee” certified that continuing the pregnancy “would be likely to endanger (the woman’

s) life or health”. Mr. Borowski was pleased with the general criminalization of abortion, but argued that the exception for the sake of the mother’s life or health was a violation of the foetus’s right to life and security of the person, which cannot be violated other than in keeping with “the principles of fundamental justice”. Mr. Borowski also argued that s. 251 could not be justified under s. 1 of the Charter. The trial judge, Cameron, J., had ruled against Mr.

Borowski, observing: Although rapid advances in medical sciences may make it socially desirable that some legal status be extended to foetuses, irrespective of ultimate viability, it is the prerogative of Parliament, and not the Courts, to enact whatever legislation may be considered appropriate to extend to the unborn any or all legal fights possessed by living persons .

Because there is no existing basis in law which justified a conclusion that foetuses are legal persons, and therefore within the scope of the term ‘everyone’ utilized in the Charter , the claim of the plaintiff must be dismissed. [38] (emphasis added). Cameron, J. also held that a linguistic analysis of the Charter could not result in extending rights to foetuses since the word “everyone” was repeatedly used in various other provisions of the Charter that could clearly never apply to a foetus. In this conclusion, Cameron, J. had the concurrence of the Saskatchewan Court of Appeal. [39] 81 .

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

The Court of Appeal observed: It is clear from this historical consideration that for lengthy periods of our legal history in England and in Canada abortions have been permitted at certain stages of pregnancy and for certain reasons.

It is equally clear that it cannot be said that there has been a uniform evolution to permit fewer and fewer abortions as, for example, to parallel the development of scientific knowledge or the evolution of moral values. [40] It is noteworthy that at common law abortion was only an offence after quickening, roughly fourteen weeks after conception, and even then it was only a misdemeanour.

The Saskatchewan Court of Appeal went on to conclude: [21] A consideration of the historic treatment of the foetus shows that at various stages our society has permitted abortion at various stages of foetal development and for var

[…]