Surrounded by reporters and cameras, and encouraged by a group of pro-lifers carrying placards in his support, Police Constable David Packer attended a two-day police tribunal in Toronto in early September, held to determine whether or not he is guilty of the charge of “disobeying a lawful order without a lawful excuse.”

Packer was charge under the Police Act then on April 8, he refused to accept an assigned duty to “keep the peace” at the Morgentaler abortuary on Harbord Street.  If convicted, he could be dismissed from the police force.

According to evidence presented at the hearing, this was the first time in Packer’s 12-year police career that he had refused an assignment.

On the day in question, Packer approached his superior officer, staff Sergeant Alan Griffiths, explaining that he could not perform the duty as a matter of conscience. He added that he did not want to cause trouble and that he would accept any other assignment.

Sergeant Griffiths reported Packer’s stand to Superintendent John Getty but omitted Packer’s reason for refusing the duty.  Getty himself then ordered Packer to guard the abortuary and, when Packer respectfully declined, charged him with disobeying the order, without considering whether or not the officer had a legal excuse.

Packer’s lawyer, Harry Black, opened his defence by focusing on a meeting held in January 1986 at 14 Division.  This meeting, attended by senior officers and constables attached to the division, was called to discuss the problems surrounding the continuous police presence at the abortuary.

Senior police officers testified that some police officers have been uneasy about their responsibilities at the abortuary.  They are required to protect illegal abortionists, and at the same time arrest demonstrators protesting that illegal abortions are being performed.

A crucial point in Packer’s defence is that Deputy Chief William McCormack stated at that meeting that any officer having problems of conscience when assigned to duty at the abortuary would be “accommodated.”

Black alleged that during the January meeting, McCormack was confronted by an officer who said he was a Roman Catholic and that he had “a lot of trouble” working outside the abortuary.

On the witness stand, McCormack stated at first that he couldn’t recall the matter of religion coming up at the meeting.  After further questioning, however, he testified that he did remember the officer’s question and said he expressed “sympathy” with the man’s position.

Nevertheless, he categorically denied that he told the man that if an officer held serious moral or religious beliefs efforts would be made to accommodate him.

McCormack said that he is a practicing Roman Catholic who has had moral and religious dilemmas “many times” during his career.  But, he said, Constable Packer should have followed orders.

“Because the protection of life (of demonstrators and clinic employees) is paramount,” he said, “Constable Packer must be prepared at all times to give citizens protection.”

“It has nothing to do with religion,” he added.
Following McCormack’s evidence, several 14 Division officers took the stand to testify on their recollections of the January meeting.  Among them was Constable Mario Di Tommasco who testified that he was the officer who asked the question about officers who had difficulty with the duty because of religious beliefs.

He testified that McCormack replied that if there were any such officers, they should come forward so that alternative arrangements could be made for them.  Said Constable Di Tommasco, “I interpreted that no mean that if an individual police officer was having difficulty in the performance of his duty at the clinic, he was to approach his (superior) officer.”

Several other constables were called to the witness stand to give their versions of what was said at the meeting and why it was called in the first place.

The testimony showed that there was much unhappiness among the officers at 14 Division not only over their presence at the abortuary but also because, when they appeared in court to testify against pro-lifers charged with offences outside the abortuary, they were confused over how to answer questions on the status of the abortuary.

(The January meeting was held shortly after the trial of the three clergymen, during which officers had been asked pointed questions on the abortions taking place at Harbord Street.  And in his judgment of the case, judge Lorenzo Di Cecco had sharply rebuked the police force for guarding an illegal establishment.)

Harry Black called as a witness moral theologian, Father James Wingele, Rector and President of St. Augustine’s Seminary, in order to confirm the Catholic Church’s longstanding opposition to abortion and to discuss the distinction between civil law and moral law.

Father Wingele conformed that, although Packer is not a Roman Catholic (he is an Anglican, currently studying Catholicism with the intention to convert), his strong belief in an adherence to the teachings of the Church means that he can be considered morally obligated to uphold the teachings of the Church.

There is civil law and moral law, explained Father Wingele.  A police officer who is asked to guard an illegal abortuary to “maintain the peace” is placed in a schizophrenic situation.  Although he has a sworn duty to uphold the law, he is not obliged to adhere to the orders of a superior officer in violation against the higher moral law.

“Point number one is keep the peace, which is the law of man, yet the law of God is being broken,” Father Wingele pointed out.  “The obligation in conscience would be for  the person to distance himself from that primary obligation.  Being asked to be involved in something immoral is a violation of a moral order.”

The final witness called was David Packer who, when questioned on his religious beliefs, responded, “I have always believed in God, a Christian God.  I believe I was made by God and when I die I’ll be judged by God.”

He then gave an explanation of why he is anti-abortion.  “My first encounter with abortion was at Churchill Hospital in Oxford, England.  I was working as an orderly in the summer while attending university.  One of the other orderlies was instructed to take a garbage bag to the incinerator.  He had taken the bag from the operating room.  The bag had been moving!  The orderly was in shock.

“In this same hospital, my future wife was then working as an RN.  She had seen aborted babies in the sluice room – dead babies tossed out!  “This had a very great effect on me and since then I have been  fully intellectually against abortion.”

Packer testified that he had been on guard at the abortuary four times.  On three occasions, he had been on duty at night when the abortuary was closed and “it was just bricks and mortar.”

The fourth duty was during the day, when he sat in a police car at the front.  “I was watching the picketers walk up and down – I thought they had a lot of conviction to be walking up and down.  Then I noticed a lady walking with a younger lady.  When they began to walk south, I realized that the younger girl was probably going in for an abortion.

“I really thought about it.  I realized that the only thing separating me from the acts of willful murder was a few bricks.  I felt myself descending into hell because I was not an innocent party.

“In guarding the Morgentaler abortuary, what I did was to legitimize 85 Harbord Street.  Anyone would accept that 85 Harbord Street was legitimate, because no police officer would guard murderers!”

Questioned about his recollection of the January meeting, Packer testified that he had wanted to ask the question asked by officer Di Tommasco, but “was overawed by the presence of the deputy.”  HE said that he “distinctly recalled” that Deputy Chief McCormack used the word “accommodate” in response to the question of what would happen to any officer who had difficulty with the abortuary assignment.

“Is there not a conflict between civil law and God’s law?” the prosecuting lawyer asked Packer.

I would think that in a civilized society there would not be a “conflict,” he responded.

But, if there is a conflict, the lawyer shot back, which law will you choose to follow?

“The higher law,” was Packer’s unequivocal response.  Which prompted the lawyer to ask about Packer’s stand I guarding criminals.

“You made a statement earlier that police officers are never asked to guard criminals,” the lawyer pointed out.  “Yet this is not true.  Officers are often asked to provide police protection for convicted criminals.”  He cited the Clifford Olson case as an example.

“I agree that police officers are requested to guard convicted criminals,” Packer responded.  “But I doubt that a police officer was guarding Olson while he was murdering his last victim.”

“When the higher echelons of this force arrest Morgentaler – as I think they should – for committing murder everyday, I’ll guard him.”

Regarding Packer’s decision to refuse his duty on the grounds of conscience, the lawyer asked what would happen if all officers “checked their conscience before following orders they were sworn to follow?”  Packard responded, “I assume that every man on the force is a man of conscience, and chaos hasn’t resulted.”

Following Packer’s testimony, Superintendent Bernard Nadeau, presiding over the trial, adjourned the hearing until November 19.