On February 23, 44 Operation Rescuers who had spent two weeks in prison, together with 61 who had not, came to trial. Judge Josiah Wood soon ruled they would face criminal contempt of court charges, instead of civil ones.
What he had heard from counsel and police, he said, made it clear that the protesters deliberately obstructed access to the clinic. Such conduct would bring the court into scorn; it “strikes at the very heart and threatens the rule of law.”
His ruling forced the Attorney General’s office to step in and take over the prosecution. Abortuary lawyer John Steeves bowed out of the proceedings, and Crown prosecutor Joseph Arvay stepped in.
Arvay argued for a trial by judge, and Wood agreed with him. He denied the request of the protesters for a jury trial, emphasizing again the seriousness of the charge and the importance of obeying Supreme Court orders.
Much of the defence presentation turned on the argument of necessity. Lawyer Paul Formby contended that the protestors sought to prevent a greater evil, the killing of unborn babies, than the other evil of disobeying the January 21 injunction forbidding blocking of the clinic. They believed that an emergency existed.
Arvay denied the validity of this defence, claiming that it could be used only if they had been forced to break the law involuntarily, “not because they considered the law…to be a bad law.” Their remedy was to appeal the injunction, not to take the matter into their own hands. The trial lasted much longer than the predicted three days. By February 28, as Robert Matas of the Globe and Mail reported, Mr. Justice Wood was tearing apart the legal arguments of the defence lawyers. Humphrey Waldock dug deep into the history of the middle ages to document the evolution of common law which treated abortion as the killing of a human being.
Using the analogy of Hitler’s policy of genocide, he insisted that the fetus is a human being regardless of Canadian court rulings. Judge Wood repeatedly rejected these arguments, using terms like “more relevant in any forum other than a court of law”…”a simple thumbnail definition of anarchy”…”a novel submission.”
Waldock too argued that the pre-lifers were acting out of necessity to stop the killing of unborn babies. But Joseph Arvay again maintained that an earlier court had ruled on that argument. He caused a stir in the courtroom when he added that the fetus, in law, is not a human being.” “We are in a court of law,” he said. “We are lawyers. We have to decide the question of the basis of law, not one’s personal views.
“In law, a fetus is no more a human being than a seal pup, a culture-modified tree or a timber wolf.”
Waldock still maintained that Judge Wood was not bound by the earlier decision because the court had not been presented with the relevant information to make a proper decision. Abortions are illegal under common law, he said, which was based on church law. He also suggested that the judge had the opportunity to make an historic decision: he had an opportunity to be remembered with his judgment in the same way that American judges were honoured for deciding that blacks are people.
Judge Wood did not respond to the temptation, however, he pointed out that a 1892 statute, which he described as the first criminal code, superseded church laws on the 16th and 17th centuries cited in Latin by Waldock. In his judgment, he ruled that the anti-abortionists could not argue that they were compelled to save the lives of unborn babies: the clinic’s activities were legal, and a system of law could not accept the view that some people are entitled to violate a law because of their view that the secular law violates a higher law. So he found the defendants guilty of criminal contempt of court.
He would not sentence the protestors, he said, until each one had had an opportunity to address the court directly. Even then, he would want some time after the hearing “to consider what I heard and make sure what I must do is correct from every possible angle.” Clearly he was trying to make sure to be scrupulously fair, according to his own lights.
Then began a long process, often very moving according to newspaper accounts, of the protesters giving their reasons for their actions. “It is all worthwhile, if we have saved one baby,” said one rescuer. A mother of eight said that she knew of no other way to stop the rescuers, who by now had spent four weeks in prison already, were back at the clinic, endeavouring to bock its entrance. True to his word, Mr. Justice Wood sent Karen and Jim Hanlon and David Forsyth to jail for three months. They had linked arms and were blocking an entrance to the clinic when they were arrested. Defence lawyer Robert Culos said that he did not know whether other protesters would try to do the same thing, but he point out that “the defendants have strong personal beliefs. The taking of an unborn life is wrong and for them that is the issue. They are prepared to pay a price for their actions.”
“Anti-abortionists sentenced to 3 months,” said a Globe and Mail headline on Tuesday, March 7. But a sub-heading read, “Judge says protesters led astray, suspends jail terms.” When the judge handed down the relatively severe three-month sentence on Mayday, March 6, he followed it up, however, by suspending the sentence for twelve months; if the protesters broke the peace in any way during that time, he said, the would be sent to jail. The severity of the sentences had been influenced by various mitigatation circumstances, he said; this was a “classic example of organized lawlessness,” but the protesters were “decent law-abiding people rather than ordinary criminals.
“Clinic wares expected to subside?” said a Vancouver Sun headline on Monday, February 27, with doubtful accuracy. The week before, Joan Andrews had told an enthusiastic crowd of about 400 at Our Lady of Sorrows Catholic Church in Vancouver that B.C. pro-lifers deserved high praise for taking action so quickly. “From the moment your death camp opened in Vancouver,” she said, “you were there.’ She regretted that Americans did not begin direct rescue operations as soon as abortion centers began opening in the early 1970s. “Because it was missing,” she said, “our lack of response helped to mis-educate society.” The public did not learn that people felt so seriously about the issue that they were willing to go to jail for it.
One doubts that Vancouver’s clinic wars, in spite of provincial Supreme Court injunctions are sentences, are soon going to subside.