Pro-life witness Mary Wagner spend Christmas in jail following her Nov. 8 arrest for mischief.

Mary Wagner was in court Feb. 29 on a charge of mischief and two counts of failing to comply with probation orders concerning her arrest at the site of the Bloor West Village “Women’s Clinic” Nov. 8, 2011. Justice S. Ford Clements of the Ontario Court of Justice presided over the day-long trial where he heard from three witnesses and listened to submissions from Crown attorney Derek Ishak and defense counsel Russell Browne.

Ishak attempted to amend the information on the mischief charge to reference a different subsection of the Criminal Code than was originally cited. This was strenuously objected to by Browne, who said the move was a last-minute “shifting of gears” that hampered a defense he had prepared using the original information. However, Clements upheld Ishak’s application and allowed the amendment.

First on the witness stand was Patricia Hasen, who described herself as a nurse and 50 per cent owner of the abortion centre Bloor West Village Women’s Clinic Inc. On Nov. 8, she said there were 10-12 patients and their escorts at the site when she was alerted by a co-worker that “Mary is in the clinic” and called the police, as she usually does in such circumstances. She said asked Wagner, whom she saw carrying roses and pamphlets, to leave several times, but Wagner refused. Hasen claimed, “People were getting upset, crying, asking why we weren’t doing something” about Wagner’s presence. She then asked the patients’ escorts to leave the site and brought the patients themselves into a secure area behind bulletproof glass, where the abortions are committed. She said Wagner moved to enter the secure area and tried to “push” her way through by holding the door open, but the door was eventually closed and police arrived 15-20 minutes later.

Toronto police officer Douglas Eaton was the second Crown witness and he testified that he arrived at the abortion site to find “a lone female standing in the lobby” and arrested her under the Trespass to Property Act after asking her to leave and she refused. Eaton noted Wagner was holding a bag and flowers at the time. Under cross-examination by Browne, Eaton acknowledged no attempt had been made to interview any of the patients who were allegedly so upset at Wagner’s presence.

Browne called as his witness Dr. Philip Ney, a child and family psychiatrist and child psychologist, under whom Wagner has studied in the past. His testimony was immediately objected to by Ishak, who charged that Ney was not qualified before the court as an expert witness and had no direct knowledge of the events of Nov. 8. His concerns were shared by Clements, who asked Browne of what relevance Ney’s appearance was at the hearing. After extensive discussions between Browne and Clements, Ney was dismissed from the witness stand.

Ney told The Interim that he was going to testify that Wagner had a legal and moral duty to warn women seeking abortions about the harm the procedure could cause and about the nature of the procedure, noting that the counseling at the facility was unlikely to do so. He also said that due to training he has given Wagner, “she has better than average ability to warn.” Ney said that the argument has been used successfully in New Zealand in a case in which he was a witness.

In his closing submissions, Browne said Hasen had little direct knowledge of Wagner’s conduct on Nov. 8, seeing her only for a few minutes in an incident that lasted some two hours. He suggested the degree of disruption suffered by the abortion site was minimal at best and not enough to constitute a criminal offence. There was no disruption to the “business” and no physical contact involved. In addition, the police were remiss in not interviewing any of the patients who were alleged to be upset at Wagner’s presence, he said.

For his part, Ishak said the charges were proven beyond a reasonable doubt on all counts. He suggested the evidence of corroborating witnesses was not necessary and that interference with the business was constituted just by Wagner’s presence.

Wagner was remanded to March 21 for another court date which could include a verdict and, if Wagner is found guilty, sentencing.

Parts of this article originally appeared as a Feb. 29 story at