By Lianne Laurence
Special to The Interim
A landmark Charter challenge to the Canadian law that denies the humanity of the child in the womb has been filed with the Supreme Court of Canada.
Mary Wagner, well-known pro-life advocate and inspiration for the burgeoning Red Rose Rescue movement in the United States, launched the Charter challenge during the course of her 2013 trial on charges of mischief. She had been arrested on August 15, 2012, while attempting to peacefully intervene to save unborn children and their mothers from the violence of abortion at a Toronto abortion facility.
On Nov. 11, her lawyer, Charles Lugosi, submitted a 155-page application with the Supreme Court setting out his arguments for seeking leave to appeal the lower court rulings quashing Wagner’s Charter challenge and rejecting her legal defence.
The significance of the case cannot be overstated, according to John Bulsza, the veteran London-based pro-life activist who has been raising funds during the eight-year-long journey to the Supreme Court. “This case is our case. It will mean the end of abortion in Canada,” he told LifeSiteNews in an earlier interview. “It has been the goal all along, if necessary, to reach the Supreme Court of Canada. Now, that goal has become a reality for Mary and the rest of us.” said Bulsza.
Lugosi argued on Wagner’s behalf in 2013 that Section 223 of Canada’s Criminal Code is unconstitutional. That section states: “A child becomes a human being within the meaning of the Act when it has completely proceeded, in a living state, from the body of its mother.”
Lugosi contends that this violates the Canadian Charter of Rights and Freedoms Section 7 guarantee of an individual’s right to “life, liberty and security of person.” Lugosi affirms also that it violates the Charter’s Section 15 guarantee that: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law.”
Additionally, Section 223 also obstructs Wagner’s legal defence for her peaceful intervention at abortion centers under Section 37 of the Criminal Code, which stated at the time of her arrest that: “Everyone is justified in using force to defend himself or any one under his protection from assault….” Wagner’s defence was that “any one” included the unborn child who was in need of protection from imminent deadly assault by the abortionist.
However, Justice Fergus O’Donnell of the Ontario Court of Justice rejected all Lugosi’s arguments, and on June 12, 2014, he convicted Wagner and sentenced her to time served. Wagner, who has spent nearly six years, in total, behind bars for her pro-life advocacy, was then released after almost 22 months in jail.
In December 2016 Lugosi, who earned a doctorate in juridical science from the University of Pennsylvania, argued his appeal of O’Donnell’s decision in a three-day hearing in front of Ontario Superior Court Justice Tamara Dunnet. She dismissed the appeal on all counts three weeks later.
Lugosi then filed a request for leave to appeal with the Ontario Court of Appeal, and in September 2020, the court denied his request.
But what appeared to be a final blow to the case in fact opened the door to the Supreme Court of Canada, because the top court has discretion to hear appeals on any lower court decision on issues of “national importance.” Abortion is undeniably a national issue, Lugosi told LifeSiteNews.
In his application seeking leave to appeal, Lugosi pointed out that the Supreme Court has never been presented with or decided on the “precise narrow Charter question” of whether the “everyone” guaranteed a right to life under the Charter’s Section 7 includes the unborn child, which, he argues, it does.
Regarding Section 15(1) of the Charter, which bestows equality rights to “every individual,” Lugosi argued that “every individual means a natural ‘human being’” and experts at Wagner’s trial testified that “a new and unique human being comes into existence at the moment of its conception.” Crown prosecutors did not contest this evidence.
“A law passed by Parliament that excludes one class of human beings from the definition of human being is a positive law inferior to constitutional law,” he noted.
“Courts have a duty to rise above political debate and tackle challenging questions, including whether Parliament’s definition of ‘human being’ infringes the constitutional right to life of unborn human beings,” he wrote.
If the Court ultimately strikes down Section 223(1) of the Criminal Code as unconstitutional “because it exceeds the power of Parliament to decide who is and who is not a human being,” abortion will then revert to “homicide under definition in the Criminal Code of Canada,” Lugosi told LifeSiteNews in an earlier interview.”
“The courts have heard few voices pleading for our littlest brothers and sisters in the decades since abortion was decriminalized,” Wagner told LifeSiteNews in an email. “For this reason alone, this case is important. We (not ‘I’, since this case is not my own personal fight but ours), have an obligation to defend those who cannot speak for themselves in whatever ways we can.”
“Even if the courts refuse to rule in favour of the truth, thanks to all who support this case spiritually or materially, the truth has been spoken — and will be spoken to the highest court of this land — on behalf of God’s littlest ones,” she added.
“Above all, please pray for the success of this case in defense of the unborn and for the healing of suffering post-abortive mothers and all women considering abortion.”
Bulsza reiterated that funds are urgently needed to bankroll the landmark Charter challenge. With the goal of a Supreme Court appeal in sight, “we ask for sacrificial giving so that all the previous efforts and sacrifices will not have been in vain. Prayers are in order too!”
Gwen Landolt of REAL Women, who has argued a number of cases before the Supreme Court, told LifeSiteNews that Supreme Court Chief Justice Richard Wagner will assign one justice to decide if the full court will hear the appeal. She said that there is no way of knowing when the court will release a ruling on whether it will grant leave to appeal, but her educated guess was that it likely won’t be until the new year.
This article originally appeared Nov. 25 at LifeSiteNews.com and is reprinted with permission.