Over the past ten months a number of cases concerning abortion and activities at abortuaries have come before the Courts. In Toronto some minor charges (of trespassing) against pro-lifers have been dismissed without trial, other cases are due to be heard just after The Interim goes to press, still others have been postponed for the second time. In British Columbia the case against Jim Demers is before the Court at this time of writing. The classic Borowski case will go to the Saskatchewan Court of Appeal in December.
However, two decisions which greatly affect the pro-life cause have been handed down in recent days: one concerns the action of picketers at the Morgentaler abortuary; the second is the decision of the five Ontario Supreme Court Judges in the Court of Appeal on the review of the Morgentaler trial.
Judge A. K. Meen’s judgment
On December 13 and 19, 1984, a number of pro-lifers were charged with trespass because they sat on the steps outside the Morgentaler abortuary, thus blocking the entrance. Of the total of 14 persons, the case against one woman was dismissed for lack of evidence, and another six defendants were shown to have been seated not outside the abortuary at 85 Harbord, but on the pat of the common-entry steps which in fact belonged to 87 Harbord Street. Their cases were dismissed.
The seven remaining defendants pleaded a defence of necessity. They stated that abortions were taking place illegally, that the police stood by and allowed this to happen and that, having exhausted all other avenues open to them to stop the taking of human life, they took the only step remaining to them and sat down to block the entrance – thus committing trespass.
Angela Costigan, Defence counsel, introduced medical evidence to prove that human life begins at conception. Dr. Heather Morris and Dr. Patrick Beirne (who showed a sequence of ultra-sound pictures of pre-born babies at different stages of pre-natal development) gave scientific evidence on this point. Both of these doctors gave evidence at the Borowski case in Regina.
His Hon. Judge A. K. Meen deferred his judgment which was finally delivered on September 23, 1985. The occasion was a landmark because for the first time in a Canadian Court abortion was described as “murder” by a judge. Twice in his written judgment Judge Meen referred to the fact that life begins at conception. He said, “The court accepts that life does in fact begin at conception.” Earlier in his judgment he stated,
“Considerable evidence was led by defence with respect to the point in time at which life begins, and there appears to be no disagreement with the concept that human life begins at the moment of conception, with the fetus having from that time forward a separate genetic existence, distinct from that of its mother. It follows logically therefore that abortions deal with the taking of human life. It is also agreed that the Morgentaler Clinic was not a licenced abortion clinic and was operating on the dates and times in question without approval of the Ministry of Health of Ontario. Consequently, the taking of such life by way of abortion was being done outside of the law in the Morgentaler Clinic on the dates and times in question.”
The judge was quite unequivocal in stating that the Morgentaler Clinic was illegal, but nevertheless was being afforded police protection. He said:
“The fact remains that human lives were being aborted on the dates in question, that the defendants knew this was occurring and that they were endeavouring to put a stop to it. That is to say, they were doing whatever they could to stop the loss of human life. And it was not as though those human lives were being taken lawfully, for, in fact, the Clinic was operating outside the law, and such was therefore murder.”
“The irony of this entire matter is that on the one hand we have a clinic performing abortions openly, blatantly and outside the law, yet on the other hand all the while enjoying police protection which enabled them to carry on these activities.”
Judge Meen used the term “murder” a second time when he asked:
“Can the commission of a very minor offence, trespass to private property, be justified when it is committed in an attempt to prevent the commission of a very much greater offence, namely murder?”
The judge concluded that there was an anomaly in a “situation where an unlawful activity being conducted under the protective eye if a law enforcement agency.” However, the illegal acts taking place within the clinic did not allow a private citizen to take the law into his or her own hands. A review of case studies showed that defence of necessity could not be used in this case. Therefore the judge finished by saying:
“I have concluded that, however iniquitous and illegal the activities taking place in the Clinic may have been, the law of necessity cannot be raised as a defence in these cases before the court.”
The seven defendants were found guilty of trespass, but they were fined only $20 which is less than half (indeed less than 40 per cent) of the minimum fine.
One further fact mentioned in the judgment was that on both dates in December a number of abortions which had been scheduled did not in fact take place. The Court did not know why. However, if the people who blocked the entrance to 85 Harbord St. saved only one baby, the price of $140 was well spent.