In August 2004, Judge George Adams of the Ontario Court (General Division) issued a temporary injunction to prohibit sidewalk counselling near abortuaries. He also banned picketing within 500 feet of doctors’ homes. Offices of abortionists were also given a small bubble zone. This ruling will last until the trial.

That case was a civil lawsuit where the Government of the Province of Ontario sued 18 pro-life people. Because it is a civil law suit, the Judge could decide what type of order to make. In other words, he was left to write his own law. And that is what he did.

In his decision Judge Adams focussed on two main points from the evidence presented:

1)      that the health of women seeking abortion is affected by protestors and sidewalk counselling, and

2)      that some of the tactics used in sidewalk counselling purposely invades the privacy of the women seeking abortion.

Also the Judge was strongly influenced by the home picketing issue. He saw it as being a very significant invasion of privacy for the doctors. I believe that his swayed his sympathy for the abortionists’ side.

In the Ontario case, the Judge made his decision without seeking a single live witness. He only saw sworn statements and transcripts of testimony given out of court. He could not get the advantage of the B.C. Jude who saw witnesses in person.

The Ontario Judge decided the government’s witnesses proved that picketing increased stress and anxiety during abortion and the incidence of post-abortion psychological trauma. In contrast, the B.C. Judge made no such finding. He had heard the testimony of live witnesses from both sides of the issue. He simply noted that there was a conflict between medical experts of this point.

In Ontario, Judge Adams could write his own rules for the judgment based on what he thought was right. The B.C. Judge could not write his own law. He had to decide if the government’s law was valid or not.

The Ontario Judge also was dealing with home picketing which has stronger emotional appeal to the side of the abortionists. In B.C. there was one case and one defendant. Maurice Lewis was not charged with home picketing.

Impact of B.C. in Ontario

There is some chance that the B.C. case will have an impact on the Ontario injunction case in the future. However, the full impact of the B.C. decision will not be known until the appeal courts, and ultimately the Supreme Court of Canada, then it will set a precedent for all of Canada about the balancing of rights of privacy and freedom of expression in sidewalk counselling cases.

The B.C. Judge considered the Ontario decision before making his ruling. He thought about the right privacy of women seeking abortions. He thought about the Charter of Rights guarantee of freedom of expression for pro-life people. In the end he decided that it is not constitutional to pan all pro-life activity near an abortuary.

Freedom of speech and the Charter of Rights has won one small victory for pro-life activities in Canada.

One can only hope that the small candle lit in B.C. on January 23, 1996 will light many more in the Courts of this land in the years to come.

Richard Marchak is a lawyer from Kitchener Ontario who also worked on the Ontario injunction