On Thursday November 8, only hours after Associate Chief Justice Parker charged them for the second time, the jury in the Ontario Supreme Court trail of Regina vs. Morgentaler, Scott and Smoling returned a “Not guilty” verdict.
Morgentaler had been charged along with Smoling and Scott with conspiracy to procure a miscarriage at his Toronto abortuary (called the Morgentaler Clinic) on Harbord St. Plainclothes and uniformed Metro police had raided the “clinic” and found Mr. Scott with a “patient” in the “procedure room”. Tiny fragments of an unborn human child were discovered in a garburator on the premises and the three abortionists did not try to deny in court that they were performing abortions.
Morris Manning, counsel for the accused planned and pleaded a “defense of necessity”. Justice Parker cautioned the jury that this case must pass three tests in order for the defense of necessity to be valid and that should it fail on any one of the three they must convict Morgentaler.
The tests declared that for a defense of necessity to prevail:
- A peril must be immediate and pressing, as in an emergency, so the accused would have no choice but to break the law to avoid it.
- The accused must have not had any other legal way to avoid the peril.
- The illegal act should not far exceed the harm threatened (for example, did an accused kill someone who had only dented the accused’s car bumper?)
Because of the verdict, Morgentaler announced that he would reopen his “clinic” within 30 days. (The Crown has 30 days to decide to appeal).
Morgentaler still faces charges in Manitoba, but the pro-abortion Attorney General of Manitoba, Roland Penner, stated as recently as November 9, on CBC radio that he would personally prefer to see the charges dropped but will await the outcome of the Ontario case before acting.
The acquittal does not change the abortion law (Section 251 of the Criminal Code) which states that abortions must be done in hospitals only after the approval of a doctor’s committee.
A victory rally was announced if the defense won the case. However, less than 300 people (most under 25) showed up at Queens Park on Saturday, November 10, at 1 p.m. to hear Bob Rae, leader of the Ontario NDP call for repeal of the abortion law. He spoke alongside well known pro-abortionists Chaviva Hosok, president of government lobby the National Action Committee on the Status of Women, and Norma Scarborough, head of the Canadian Abortion Rights Action League.
Significantly, Boris Shostak one of the jurors in the Morgentaler case was spotted in this pro-abortion crowd. He said he had come down to “educate myself about what is happening”.
Right to life comments
Laura McArthur, president of Toronto and Area Rights to Life was asked her reaction to the jury verdict:
“As far as the jury verdict is concerned, Morgentaler bragged before his trial that he had great faith in the democratic process, that is the jury system but he did everything money could buy to make sure he had a totally biased jury that was not a jury of his peers, and most certainly was not a jury representing the Canadian People. His legal counsel, Mr. Manning, tried everything he could to keep out anybody with religious or moral views on abortion.
On the other hand, there was no question that would screen-out prospective jurors because of their “humanistic views that could be pro-abortion. They did not pick anybody from middle-or-upper-management. They did not pick any of the ethnic people. I picked a large panel from those 132 prospective jurors, a panel I thought would be totally opposed to abortion on demand, using only the answers they gave in the courtroom. Not one of the people that I picked to be opposed to abortion became a juror, not one.
I don’t think the prospective jurors were given fair instructions. Many were nervous, they came in “cold” and as soon as the word “religion” was mentioned, that was the stopper. You could see people asking themselves, ‘If I go for this, would it mean I’d have to be in opposition to what I believe?’ And of course if they hesitated they were chopped. If they dared say they had moral or religious convictions they, in effect, excused themselves. As far as I’m concerned they might just as well have taken the 132 prospective jurors and lined them up and said, “Anybody here who believes in religion, anybody here who has been married for more than five years to the same wife, anybody here who has more than two children…please…just leave the room. There were people there that no matter how good a juror they would have made, they simple were not going to get on that jury and Manning saw to that.”
When asked about Morgentaler’s remarks to the press that he will reopen the Harbord Street abortuary in Toronto because of the decision. Mrs. McArthur replied, “There will be no more abortions performed at that ‘clinic’ “.
Mr. James Hughes, President of Campaign Life was asked to comment on the outcome of the trial and pro-life plans for the immediate future:
“The decision of the Morgentaler jury on November 8 came as no surprise to people active in the pro-life movement. We fully expected this decision from the time Manning brought in experienced jury consultants from Washingtion, D.C.
These expensive jury consultants knew the psychological profile of who should or should not be on the jury in order to win an acquittal in an “abortion” trial. The consultants later claimed, for instance, that there was a direct correlation between church attendance and the likelihood of someone holding pro-life views. They therefore knew regular churchgoers (and for other reasons – homemakers, young people and older professionals) should be excluded. They were.
It is a jury’s sworn duty to determine the facts and apply the law. However, in this case, defense counsel Manning advised the jury to ignore their duty and instead try to send a message to influence politicians of the Province and the Country to change the law. Although Judge Parker, in his directions to the jury, told them to ignore Manning’s words on this, obviously they did not do so. They did not act in accordance with their sworn responsibility to uphold the law.
In addition to jury irregularities, other questions were raised by this trail, including the validity of the common law defense of “necessity” as well as questions about the judge’s direction to the jury.
Morgentaler was allowed to use the media as his personal megaphone in an attempt to make this jury acquittal appear to be of great significance. However, through letters, phone calls and personal visits, pro-lifers are giving Attorney General Roy McMurtry and the Hon. Keith Norton, Minister of Health, every encouragement to enforce the law.
The Ontario Court of Appeal can either affirm the decision of the jury, or order a new trial. If the Ontario Court of Appeal orders a new trial, it will not take place for two or three years. Either way, it is certain that the decision of the Ontario Court of Appeal will be appealed to the Supreme Court of Canada.
If a new trial is not ordered and the jury’s decision made stands, it does not mean that Morgentaler is innocent. It merely means that he was found “not guilty” by a particular jury at a particular time. The law still stands – and he is subject to prosecution. It is illegal in Canada to perform an abortion unless the mother’s life or health is in jeopardy and that decision rests only with the therapeutic abortion committee of an accredited hospital.