Toronto – The 1989 court injunction that prevented all pro-life activities within a 150
meter radius of Henry Morgentaler’s Toronto abortion clinic on Harbord Street now
applies to his new location at 157 Gerard Street East (several doors west of the Scott
abortion clinic) – and to any new location to which he may move his clinic.
During the two days of hearings an Ontario judge rejected the arguments of lawyers
Angela Costigan and Peter Jervis that circumstances which gave rise to the original
injunction has changed and that the injunction should be modified to allow “peaceful
communication” of pro-life ideas and offers of counseling and assistance to distressed
women. Changed circumstances include the absence of clinic blockades (rescues) – not
just at Morgentaler’s, but at the three Metro abortion clinics not under injunctions – for
more than two years.
Persuasive arguments rejected
Pro-life lawyer Jervis argued persuasively that, while Mr. Justice Borins would
understandably leave untouched section of the injunction preventing “tortuous” (illegal)
activities around the Morgentaler Clinic, he should nevertheless act to modify it on the
evidence that the original injunction had been interpreted – “perhaps unintentionally” – in
an overly broad and draconian fashion.
Affidavits presented to the court showed that pro-lifers had been arrested ad convicted for
silent witness with a pro-life sign – and even for standing away from the clinic property
and quietly praying! But pro-life affidavits – including those of women who had
accepted assistance in having their babies – failed to persuade the judge that he should
address the issue of violated Charter freedoms of pro-lifers.
Angela Costigan presented a parallel argument that the independent Health Facilities Act
presented “sufficient governmental action to enable the defendants to plead that their
Charter rights are being violated.” With the passage of the I.H.F.A. the Ontario
government not only completely funds all abortion clinics; it also sets their budgets, owns
directly all their assets and recruits their doctors.
In rejecting the cogent – at times brilliant – reasoning of both pro-life lawyers, Mr.
Justice Borins ruled, “The issues raised by Mr. Jervis and Ms. Costigan which, I
acknowledge, raise difficult questions, will no doubt be fully argued before the trial
judge…” (when the original injunction goes to trial a year or more from now.) He
assessed the five original pro-life defendants $3,000 in costs for contesting the
Morgentaler motion which he said “should not have been opposed.”