“That location was opened for only one purpose – to flout the law,” said Jude Di Cecco (pronounced ‘checko’) referring to the Morgentaler Toronto abortuary in the trial of three clergymen on December 9. He went on to say that abortion is “…still a serious breach of the Criminal Code carrying a maximum penalty of life imprisonment.”
The three clergy, Rev. Alphonse de Valk, 53, Associate Editor of The Interim, Rev. Ted Colleton, 72, member of the editorial board, The Interim, and Rev. Fred Vaughan, 59, of Beulah Baptist Church, pleaded not guilty to charges relating to the locking of the rear gate of the illegal abortuary.
The clergymen were each charged with mischief to private property under Section 387 of the Criminal Code. The Code further states that no person shall be convicted of mischief where he proves he acted with legal justification. Defense counsel argued that the Act of padlocking the gate was justified given the illegal activities taking place at the abortuary.
Two of the clergy, Rev. de Valk and Rev. Colleton, had originally been charged with mischief (S. 387d) defined as “interfering with lawful use of property.” On the morning of the trial the Crown withdrew that specific charge and laid a new charge alleging that the clergymen committed mischief (S. 387c) defined as “rendering property inoperative.”
The clergymen testified that they were compelled to act because the police, who should protect the innocent from criminals, were actually protecting those engaged in crime. The judge appeared to agree with the defendants asking, “There’s no doubt in my mind…that an indictable offence is being committed inside the abortion clinic: What is the right of a citizen when he has reasonable grounds to believe that an indictable offence is being committed?”
During cross-examination police officers testified that they were following orders not to arrest those inside the abortion clinic but agreed that there was no policy against arresting protesters.
Lawyer for the defence, Mr. Paul Dodds, said that this admission amounted to police protection from criminals carrying on illegal activities.
The following is a sampling of comments made by Jude Di Cecco during the summation of the Crown Attorney:
- Acknowledging that the defendants were clergymen he noted that he was not considering the case on a “religious level” and commented, “When I come to the courtroom, my bible is my Criminal Code.”
- The Crown had argued that there was no way the clergymen could know that abortions were taking place at 85 Harbord Street. Judge Di Cecco said that that was ridiculous as Dr. Scott had said in the courtroom that he performed 12 to 14 abortions per day. And, in any case, Morgentaler has stated in public, in trial and on TV that he performs abortion.
- The prosecutor argued that Morgentaler had been acquitted. The judge said that that argument was invalid as Morgentaler was not necessarily innocent just because a jury had acquitted him.
- Judge Di Cecco employed the following metaphor with regard to the action of the clergymen: “What of a man who sees a car idling at the curb ad there are two men robbing the bank (and that is a less serious offence, it carries only 14 years) and they are going to use the car to get away. Does he not have a right to drive his car in front of the robbers? Let’s not talk about rights. What about duty? …All three men made it clear that they are opposed to all abortion – but they have respected the law. They did what they did because the law was being broken.”
- With regard to bail conditions Judge Di Cecco said, “On the second set of charges bail conditions were not even applied for. I still do not understand why the prosecutor did not ‘show cause.’ You yourself Mr. Griffiths [Crown Counsel] have argued before me for bail conditions on secondary grounds [‘secondary grounds’ are to prevent the recommission of an offence] ….I don’t have police around by house 24-hours-a-day and I need protection more than they [the abortionists] do.”
- With regard to the suggestion by certain police officers that they do not have orders to arrest the abortionists the judge offered this slam to the Crown, “Of course no police officer is going to surprise his superiors by showing up one morning with the abortionists under his arrest – not unless he wants to remain a constable the rest of his career.”
The case resumed on January 2 when it was announced that a decision will be handed down on February 10.