A voice for the voiceless was temporarily silenced recently when Rev. Ken Campbell lost his application to the Ontario Supreme Court to have set aside the “stay” of seven charges of procuring a miscarriage, laid earlier by the police against Drs. Henry Morgentaler Robert Scott and Nikki Colodny. The “stay” had been ordered by Ontario Attorney-General Scott’s pending a ruling from the Supreme Court of Canada on Morgentaler’s appeal against a lower court ruling that his first Toronto trial was invalid.
Angela Costigan, his lawyer, had argued that Attorney General Scott’s decision not to go ahead with a trial on the latest police charges made him responsible for the deaths of many unborn children are incapable of speaking for themselves and that is why Rev. Campbell speaks on their behalf.
“When did he become the custodian of all unborn children?” Judge Finlayson asked. “I don’t understand where Mr. Campbell gets into this.”
Mrs. Costigan went on t argue that it didn’t make sense to halt further prosecutions simply because the Supreme Court ruling was awaited. “When a law relating to drunk driving came under constitutional attack, did the police stop laying charges?” she asked. But Mr. Justice Horace Krever said that important legal distinctions made such comparisons invalid.
The unborn are asking to have their right to life acknowledged,” Mrs. Costigan persisted. “They are alive and they are throughout the province.”
Similar arguments from Rev. Campbell’s lawyer brought a report from Judge Krever that the issue before the court was not abortion, but the legal responsibilities of the Attorney-General.
By staying the charges, Mrs. Costigan pointed out, Mr. Scott is arbitrarily expanding the limited rights, set out in the Criminal Code, for having an abortion.
“He has no right to do that,” she insisted. “Only parliament has.”
“What’s happened here is that the Attorney-General has exercised his discretion,” Mr. Justice Samuel Grange, the third Appeal Court judge, said. “In the circumstances, we think his action was entirely appropriate.”
“Are you suggesting that the Attorney-General’s actions in this case are destroying life? Do you go that far?” Judge Krever demanded.
“Implicitly, because it’s allowing people to destroy the life of the unborn outside the law,” Mrs. Costigan responded.
“You’ve weighed your words when you make that submission, have you?” Judge Krever asked. “Yes, that is the direct result of the attorney-General’s actions,”
Mrs. Costigan responded.
Nevertheless, the Appeal Court judges dismissed Rev. Campbell’s action. They did so without calling on lawyers for the Attorney-General to explain his rationale for his actions.
Rev. Ken Campbell said that he is not discouraged by the decision and is now proceeding to have the Supreme Court of Canada hear an appeal.
