On October 5, the 76 pro-lifers on trial in Toronto were given a suspended sentence and one year probation to stay away 500 feet from 85 Harbord St.   The Interim’s Dr. David Dooley attended the trial and here presents an analysis of the argumentation and judgments.  Elsewhere I this issue there is another account of the trial by the Interim’s reporter Frank Kennedy.

Within the limits they set for themselves, the judge and the prosecuting attorney almost behaved with scrupulous fairness in the Toronto trial of 76 Operation Rescue on October 4 and 5.  Judge Hugh Silverman repeatedly asked the accused if they had anything to say, and both he and Crown Attorney Atkinson gave the impression that they were dealing with people whose behaviour was ordinarily decent and whose motives were honourable even if misguided.

Based on the information filed and the supporting evidence, the judge concluded that the defendants had deliberately breached an injunction handed down by Mr. Justice Craig of the Ontario Supreme Court.  Not surprisingly, he viewed this as s serious matter.  He said he had no choice but to find them guilty.

The religious and philosophical issues surrounding abortion, he said, were not at issue; he simply had to follow the law of the land.  Addressing the protestors, he declared,

“You have thumbed your collective noses at the judges and the courts of this province and said you will not obey an order of the Ontario Supreme Court.”

But when he added, “If we allowed such conduct in this good country, we would have anarchy and terrorism”, he did introduce a private view which was open to question – even if similar language has been addressed by judges to Rescuers virtually from coast to coast.


Delighted with the verdict, the pro-abortionists made free with their familiar, predictable, and monotonous vocabulary of abuse.  Carolyn Egan of the Ontario Coalition for Abortion Clinics declared that the judgment recognized that “a minority group does not have the right to impose its moral and religious beliefs on the majority.”  Where her own group got its “right” to impose its own minority immoral and irreligious beliefs on the rest of the country, she did not say.

Egan made it clear, however, that she was entitled to speak not just for herself but for our largest city:”I think the community of Toronto does not condone the intimidation, the harassment that these people have subjected women to.”  Her good friend Henry Morgentaler felt the same way; charitable as always, he said that he did not wish people to go to jail, but added, “I am interested only in being left I peace and not having my patients subjected to the aggressive harassment of these fanatics.”

Both these defenders of abortion ignored the evidence presented at the trial.  This made their accusations slanderous for two reasons.

  • No one accused the defendants of intimidation or harassment.  Staff Sergeant James Parkin, a veteran police officer called as a witness for the prosecution, stated that this Operation Rescue was peaceful: the participants in it were quiet and well-behaved, not loud, violent or aggressive.
  • Furthermore, their attitude to police officers was polite, courteous, and respectful.  No one questioned this judgment.  The conclusions which Morgentaler and Carolyn Egan drew were not in accordance with the facts.

The evidence also contradicted another familiar slander aimed at right-to-life supporters: that they care only for the fetus, not for the woman.

  • Witness Joanne Dieleman, manager of the “clinic’s” next door neighbour The Way Inn, explained very clearly that counselors outside the Morgentaler clinic (when counselors were allowed) treated women kindly and considerately and gave them every kind of help, from money for shelter to baby clothes.  Her own demeanor suggested that she could hardly be violent or fanatical if she tried.
  • Other witnesses brought out the fact that it can be helpful to women to dissuade them from abortion.  At one point, the judge said that giving advice to a woman who had asked for it might be in order, but it would not really be acceptable to do otherwise. Linda Gibbons (a single mother of three) testified however that this is not enough.  If only someone had come forward to speak for her child when she was on the way to have an abortion seventeen years ago, she told the court, she might not still be mourning for the child she lost, a child which has no known grave.  Such was the moving testimony of a woman who has had an abortion and, in reparation for it, tries to counsel women not to repeat her own mistake.
  • The medical evidence produced also revealed how false and misleading the charge of fanaticism is when dealing with the endeavour to persuade women not to have abortions.  Dr. Dennis Xuereb testified that a bond begins to form between a mother and her unborn child, and that at his hospital, a woman who has had an abortion at one of the “clinics” comes into emergency for treatment approximately once a week.  Abortion, then, is not a safe and harmless procedure, as it is commonly made out to be. Complications can result from it, and therefore it is entirely reasonable for pro-life counselors to tell women about alternatives to abortion.
Caesar or God?

There is no question that Operation Rescuers often participate in rescues because they feel that God has called them to do so.  Before the Toronto trial began, the atmosphere was virtually that of a prayer meeting; people were saying the rosary and other prayers or reading the Bible before they were admitted into the courtroom.  Once inside, they heard a young man read, for the benefit of all, a passage from the Bible in which Jesus says, “If the world hates you, remember that it has hated Me.”

After the recess on the first day, the rescuers asked lawyer Paul Dodds to offer no further defense o their behalf and resolved to remain silent themselves.  Three of them broke the silence to quote scriptural passages.  Pastor John Foster said that there was recognition of God in the Charter of Rights, declared that he was doing what he did because God’s word, and quoted part of Psalm 139: “Deliver me, O Lord, from the evil man; rescue me from the unjust man.”

Father Ted Colleton made clear that his motives were religious.  On the witness stand, he said he desired, as a Catholic priest, to show some leadership in the prevention of a holocaust.  After the proceedings had concluded, he declared in an interview that he believed in democracy, but that he had to serve God first.  He put it in this way: “I’ll obey Caesar as long as he doesn’t ask me to disobey God.  And that’s what Caesar has asked me to do – so Caesar can go to hell.”

Terrorism in this good country

Let us return to the judge’s statement regarding the defendants’ action: “If we allowed such conduct I this good country we would have anarchy and terrorism.”  Father Colleton, on the other hand, contrasted the citizens of Canada unfavourably with the Kikuyu of Kenya.  They don’t even have a word for abortion, he explained.  But when we have over 80,000 deaths from abortion annually in Canada, terrorism is not I the future: it is already here.  The land can no longer be called good; it is under a curse of killing innocent human beings.

Human beings?

What human beings? one may ask.  Who says that fetuses are human beings?

Humanity of the unborn

The court was hushed as lawyer Paul Dodds held up a much enlarged photograph of a child I the womb, and proceeded to ask a medical doctor about it.  Dr. Dennis Xuereb an obstetrician and gynaecologist connected with North York Hospital, deals with from 200 to 250 pregnant women a year.  He immediately identified the picture as that of a human fetus of approximately six weeks’ gestation; he proceeded to point out the recognizable features of this tiny morsel of humanity, only about five centimeters long.  By eight weeks, he said, all the organs would be laid down, and with modern instruments the heartbeat would be measurable before that time.

His principal assertion was that the child is an individual from conception on, on the basis of its genetic profile.  At no times is it anything different; at no time does it undergo a substantial change; it simply develops.  Dodds enquired about the comparison frequently made between an acorn and a fetus: an acorn is not an oak tree, and a fetus is not a human being.  Dr. Xuereb replied that the analogy will not hold; it is employed to belittle the human fetus.  A better comparison would be with a sapling – something which is not going to change fundamentally, but is simply going to undergo a continuous process of development.  The fetus is human from the start.

Several times the Crown Attorney intervened to say that this was a matter of opinion and that he was not contesting a person’s beliefs.  But what Dr. Xuereb was saying was that the humanity of the fetus is not a matter of opinion at all; it is a matter of scientific observation.  Xuereb only confirmed what the massive evidence, by a parade of expert witnesses, established at the Borowski trial in Regina in 1983: the child I the womb belongs to the human species.

Defence lawyer Paul Dodds was bringing out, very ingeniously, that the humanity of the fetus is no longer a matter of scientific controversy.  By implication the injunction granted to the Morgentaler “clinic” falls afoul of the Charter of Rights, because it is a wholesale denial of the right to life of children before birth.

The Criminal Code

In reply, the Crown Attorney produced a definition of a human being given in the Criminal Code (section 223):

(1)   A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother whether or not

(a) it has breathed,

(b) it has an independent circulation, or

(c) the navel string is severed.

Atkinson spoke as if that settled the matter.  In the light of current knowledge, however, the definition must be characterized as artificial rather than realistic – rather as if the law declared that the earth is flat or that all cats have five legs.  It highlights once more how unfortunate it is that in March of this year the Supreme Court of Canada refused to give a judgment in the Borowski case.  After all, the Operation Rescuers claim to be defending human life, and one can hardly expect them to take seriously and to respect a Criminal Code provision which declares that unborn children cannot be considered as human beings.  They are asking that the legal system recognize the facts of biology.

Our legal tradition

In spite of what Father Colleton said about Caesar, he and the other rescuers are also defending Caesar – defending the best traditions of our democratic heritage.

The Crown Attorney refused to see this.  He contended that Operation Rescuers obstructed and interfered with women doing what the Supreme Court has declared to be perfectly legal.  “All the judgment of Mr. Justice Craig does,” Atkinson said in defending the injunction, “is confirm the right of people whom the Supreme Court has declared to have such rights.”  But Atkinson was misinterpreting the Supreme Court decision handed down I January 1988.  First, the Supreme Court as a whole did not rule on women’s rights at all, but rather objected to the procedures under section 251 of the Criminal Code as violating fundamental justice; second, individual judges such as Chief Justice Dickson then added that other procedures might be devised which would be acceptable.  He did say that abortion was lawful under certain circumstances, but he did not say that it was an unquestioned right or that it was an option completely open to women when they wanted to use it.  He tried to balance what he saw as two competing objectives, as did the others on the majority side:

“I think the protection of the interests of pregnant women is a valid government objective, where life and health can be jeopardized by criminal sanctions. Like Beetz and Wilson JJ., I agree that protection of fetal interests by Parliament is also a valid government objective.”

He certainly did not say, as the injunction I favour of the Morgentaler clinic implies, that when a woman makes an appointment for an abortion at the clinic she has entered into a contract which is sacrosanct and which no one should dissuade her from keeping.

In support of Caesar

Far from trying to bring on anarchy, as Judge Silverman and various B.C. judges have accused rescuers of doing, they are pointing out that babies are being killed by the thousands while Parliament fails to do what the Supreme Court said it could do- protect then.  The judge said that the curt has the duty of upholding the integrity of life, and that the idea of a contract to destroy life is grotesque.

When there actually was a Caesar, a Roman Emperor, he held that the fetus had to be taken into consideration.  Justinian’s Digest, a collection of texts dating from 533 which is part of the body of Roman civil law, contains the following passage:

The Emperor Hadrian sent a rescript to Publius Marcellus to the effect that a free woman who has been condemned to the extreme penalty bear her child, and it is the custom that she be preserved until she shall have given birth…

Through the centuries, through periods of history we consider much harsher than our own, the same view obtained, implying that the child in the womb is a separate individual and that while the state has the right to take the life of a convicted criminal it has no right to take a second life as well.  In 1962, when five people convicted of witchcraft were hanged in Salem, Massachusetts a sixth, Elizabeth Proctor, was spared, because she was pregnant – on the ground “that the child she was carrying was an innocent person.”

Even the abortion law passed in Canada in 1969 declared that abortion was a felony, except when the mother’s life or health was in peril; though it was more honoured in the breach than in the observance, it was supposed to protect the unborn child.

Judge Silverman declared that the rescuers have a perfect right to campaign and demonstrate for a law such as the Chief Justice described- a law to protect the fetus.  But the protectors feel that they have exhausted all the ordinary means of persuasion open to them.

Father Arnold Loebach of Logan, Ontario, described his sense of frustration I this way:

“It is a drastic measure, but we feel it is about the only thing for us to do.  We have flooded parliament with letters; we presented a petition to parliament containing 1 million signatures, we have written and spoken to MPs, we have written letters to editors.  It seems we have accomplished nothing.”

In the minds of these people, Operation Rescue is a necessary measure to bring about legitimate change – the protection of the fetus which Caesar’s successors are so slow to bring about.

Operation Rescuers are upholding the fundamental principle that lies at the heart of all democratic government – the principle that life is intrinsically valuable.  If the law ceases to be the steward of life in our society, if indeed the law has ceased to be the steward of life, then anarchy is the inevitable result not because of pro-life but because government has failed to do its duty.