A jury in Nelson, British Columbia has determined that Jim Demers, a Nelson Pro-Life activist and a founder of Nelson Future Life, the local Pro-Life organization, is guilty on a charge of theft under $200 and guilty on a charge of mischief. Demers was found not guilty on a third charge of possession of stolen property stemming from an incident at Kootenay Lake District Hospital on January 27, 1985.

In an admission of facts to police after the incident, Demers related his efforts to halt abortions at the Nelson hospital. Only after talking to doctors, hospital administrators, the local crown prosecutor, to nurses, the media and just about anyone who would listen to him, all to no apparent effect, did he consider more radical action, Demers claimed in the report.

Abortions are readily available in many B.C. communities. In Nelson, in particular, abortion on demand is a reality, though the medical community is quick to deny it. Statistics show a rate of one abortion for every four live births in 1984.

In the statement to police, Mr. Demers admitted removing the Gomco “Explosion Proof” Uterine Aspirator, the hospital’s $849.58 killing machine, from a storeroom (which also stored laundry hampers and oxygen tanks), altering the machine and returning it in damaged condition.

Demers, testifying on his own behalf, said he took action only after considerable soul searching and had asked at least fifty friends and associates, many of whom are not affiliated with the Pro-Life movement, whether his thinking was rational or not. Demers confessed that he lived in a vacuum of self doubt despite the reassurances that his thinking was sound. Demers was close to tears as he described how, having made the decision to take direct action, he kissed his wife and children goodbye not knowing what price they might have to pay for his actions.

Demers entered the hospital on a Sunday evening to minimize disruption of hospital activities. Unopposed by the hospital staff, he strolled through the halls until he located the storeroom which housed the abortion suction apparatus. Demers wheeled the equipment through the halls and out the back door of the hospital and loaded it into his pick-up truck. He then drove to his work shop (Demers is a carpenter by trade), dismantled the unit’s motor and converted the frame into a book trolley, reasoning that he would “return something of value to the hospital in exchange for equipment of dubious value.”

Defense Counsel Brent Adair attempted to apply Section 27 of the Criminal Code in Demers’s defence. Section 27 allows the use of force if a person has “reasonable and probable” grounds to believe a crime that would cause immediate, serious injury will be committed. In using this particular defence, Adair had to establish that certificates authorizing “therapeutic” abortions were issued outside the perimeters set out in Section 251 of the Criminal Code, in effect, that the certificates were issued illegally and the subsequent abortions were thus criminal. Adair had to convince the jury that Jim Demers believed a crime would be committed if he did not intervene. The first witness to be called by the defence was “family” physician Dr. Nelson Ames. Dr. Ames is chairman of the therapeutic abortion committee at Kootenay Lake District Hospital. During the examination Ames admitted that he had counseled patients to have abortions before he became chairman of the committee in 1985. Counsel Adair tried to establish how members of the abortion election committee are predisposed to granting certificates to the patients their colleagues represent. Adair suggested that committee members may at a later date require their colleagues’ consent for their own patients; the system of abortion committees is prejudiced when doctors are in effect governing themselves.

Value challenged

Judge John Cowan intervened and ruled the entire line of questioning relating to the validity of the abortion committee decisions irrelevant. Adair’s arguments were struck down consistently as he attempted to introduce the argument from various perspectives.

In his charge to the jury, Judge Cowan disallowed the defence under Section 27. The defence remaining to Demers was evidence provided by numerous character witnesses that he is an upstanding citizen of the community. As well, Counsel Adair challenged the value of the machine asserting that the hospital would likely have depreciated the value of the machine in its financial records.

During its deliberations the jury returned to the courtroom with questions on whether they could recommend leniency and whether Demers could be found guilty of the lesser charge of theft under $200. Judge Cowan agreed that both possibilities were open to the jury. Despite the time and substance of the defence being drastically altered with the Judge’s refusal to consider a defence under Section 27 – Counsel Adair had expected the defence portion of the trial to last at least seven days to allow evidence to be presented by expert witnesses – the final outcome of the trial was different from that anticipated by many in the community.

Positive impact

From Dr. Ames’ testimony it was clear that – regardless of what the jury decided – Jim Demers’ action had a positive impact on the community. Dr. Ames testified that eight or nine abortions were performed each of the months of November and December of 1984 and January of 1985. After the Demers’ action there were no abortions performed at the hospital in the months of February and March and only two or three in the following months. Asked if abortions could have been performed with other equipment, Ames said he did not know. Hospital records show that previous to acquiring the Gomco aspirator unit in 1976, abortions were routinely performed using “off the wall” suction units.

Judge Cowan again ruled against Adair when evidence was introduced that the hospital staff was uncomfortable about the incident (uncomfortable to the point that the previous abortionist has now given up performing abortions altogether). Adair tried to show how the incident initiated by Demers was a catalyst for a complete re-evaluation by the hospital of its abortion policy. Judge Cowan refused to hear testimony that supported the defence contention that Jim Demers’ action had saved lives.

The jury handed down its verdict after six hours of deliberation. Sentencing provided the greatest irony in the trial. Asked if he had anything to say before sentencing, Demers said, almost mockingly, “Nothing I could say at this point will be relevant.”

Judge Cowan then sentenced Demers to perform one hundred hours of community work and to pay the hospital for the cost of a new abortion suction machine. An appeal has been launched and, if necessary, and depending on funding, Demers is willing to take the case as far as the Supreme Court of Canada.