According to John Bulsza of the Mary Wagner Legal Defence Fund, the August 2012 case is about to go before the Ontario Court of Appeal – seven years after Wagner was originally arrested for entering the “Women’s Care Clinic” abortuary in downtown Toronto. She was charged with mischief, interference with the lawful enjoyment/operation of a business, and breach of a court order, because she offered assistance to pregnant mothers as they awaited their appointment at the abortion mill.
Following two years of court proceedings, Justice Fergus O’Donnell of the Ontario Court of Justice found Wagner guilty of mischief. Charles Lugosi, Wagner’s lawyer, began appeal proceedings in July 2014. In December 2016, Justice Tamarin Dunnet of the Ontario Superior Court of Justice upheld O’Donnell’s decision.
Since then, Wagner has been arrested numerous times, in both Toronto and Vancouver, for her continued witness on behalf of the unborn. She has spent nearly 22 months in the Vanier Centre for Women in Milton, Ont., both awaiting trial and as part of her sentencing.
Wagner and her lawyer Lugosi argue that the preborn child is a human being protected under section 37 of the Criminal Code of Canada, which states: “Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.” Wagner says her actions on behalf of the preborn are protected by the common law defenses of “necessity and the self-defense of others.”
Lugosi argues that the conviction appeal judge erred in “misinterpreting and misapplying” section 37 of the Criminal Code of Canada. The judge claimed that the preborn do not qualify for protection. He noted that the lower courts did not allow Wagner to provide evidence “that a fetus is a human being from the moment of conception.”
Section 37 has since been repealed from the Criminal Code, but Lugosi argues that because it was in force when Wagner was arrested, “she is entitled to rely on the self-defense of others. Mary contends that the unborn child is an “any one.”
Lugosi is also arguing that the probation orders imposed on his client are unconstitutional restricts of her Charter rights. Typically, Wagner is told to stop her pro-life witness near abortuaries, a condition of probation she refuses.