On February 10, three clergymen, who locked the back gate of the abortuary last October, were acquitted of three separate charges of “Mischief against private property.” Ontario Provincial Court Judge Lorenzo DiCecco accepted the defence of “legal justification” reporting in his decision that:
Mr. Paul Dodds, Counsel for the defendants, intimated that his clients acted with legal justification and are protected by Section 386, subsection 2 of the Criminal Code, which provides that no person shall be convicted of an offence under Sections 387 to Section 402 where he proves that he acted wit legal justification or excuse and with colour of right. He pointed out that his clients were acting with the intention to interfere with the continuation of an indictable offence which they believed was being carried out on the premises.
Judge DiCecco further stated that on the basis of an abortionist Robert Scott’s testimony, “… the Court has no hesitation to state that the actions of the occupants of 85 Harbord Street [the abortuary] constitutes a prima facie case of a violation of Section 251 of the Criminal Code. Further … the defendants’ belief of such a breach of Section 251 of the Criminal Code was not mere speculation on their part.”
The not-guilty verdict was the conclusion of a trial held on December 9, 1985, which was followed by a brief session on January 2, 1986, at which time further legal arguments were presented. At the trial, each of the clergymen testified that they were upholding the law in trying to prevent the illegal killing of pre-born babies. Mr. Dodds stated on behalf of the three clergymen, that the police made a mistake arresting those trying to prevent a crime instead of the people committing crimes inside the clinic.
Mr. Dodds argued further that the three men were not interfering with the lawful use of property but “putting themselves to right into the middle of a conspiracy” to illegally perform abortions. Assistant Crown Attorney Peter Griffiths claimed such a defence of justification had no history in Common Law or the Criminal Code.
Seeking a promise
The clergymen testified in court that the October padlockings came after all other peaceful demonstrations had failed to bring about the promised closing. (Premier Peterson promised to close the illegal abortuary if elected.
The first padlocking of the gate on October 24, 1985, brought Father de Valk before Provincial Court Judge Joe Addison, who asked him to agree to the condition that he not tread within five feet of the abortionists’ property. “But the business being conducted there is unlawful, so I feel fully justified as a citizen to exercise my right to close this illegal place,” de Valk told the judge. His refusal to sign the papers led to his spending a night in Toronto’s Don Jail. The very next day the Crown prosecutor withdrew the condition, whereupon de Valk was set free. When Reverend Ted Colleton and Pastor Vaughan perpetrated the same act a few days later, they were charged with “mischief,” but without further conditions.
However, after Judge DiCecco delivered his February 10 judgment of acquittal he announced, nevertheless, that he was seeking a promise from the three defendants not to come within 300 yards of the Morgentaler property as a preventative measure against a possible breach of the peace.
Defence counsel Paul Dodds read a statement prepared beforehand by the three defendants stating that they did not intend to pay any fines or sign any conditions. The judge then called for a “show cause” hearing, to be given evidence whey he should not impose this condition. The date set for this hearing is February 25.