Editor’s Note: Silencing pro-lifers is nothing new. The December 1993 Interim reported on the Ontario government of NDP Premier Bob Rae attempt to silence pro-life protesters.
The Ontario government wants to make it illegal to peacefully protest abortion or to counsel women in selected cities across the province.
The Attorney General, Marion Boyd, began a court action in April of this year restricting pro-life activity. She was acting on the recommendation of a Task Group Report on access to abortion in the province. The task group was composed almost entirely of abortionists and abortion activists.
“I am seeking this injunction to ensure that women have access to legal health care services in this province,” said Boyd at the time of the announcement.
The injunction, if granted by the Ontario courts, would halt peaceful picketing and counseling on public property outside three abortion facilities in Toronto as well as at hospitals, abortionists’ homes and offices in London, Brantford and North Bay.
Pro-life leaders argue that it would be an unprecedented restriction of the rights of a group to assemble and peacefully protest in the province. They say Boyd is seeking to restrict the use of public streets and sidewalks by a group which opposes government policy. They add that she is restricting the flow of information about abortion and infringing the political rights and freedoms of citizens of the province who hold opinions contrary to the NDP government. Part of the injunction application includes a lawsuit against 18 pro-lifers from across the province.
The lawyers representing pro-life defendants against the Ontario Attorney General are calling this a classic civil-rights case.
But in spite of its clear-cut nature, the move by the province to ban pro-life counseling and picketing has yet to engage the attention of civil liberties groups, the media, or any of the other traditional defenders of free speech.
”I don’t want to be accused of hyperbole,” says David Brown, one of the defence lawyers representing the 18 pro-lifers against the province, “but I think it’s certainly going to be one of the most important civil-rights cases in Ontario in the 1990s.”
The mountains of evidence and hours of cross examination by lawyers representing the Attorney General boil down to one point, he says – the government is trying to crack down on peaceful activity on public property.
The case is set to be heard in January and lawyers expect the hearing to last three weeks. Lawyers representing the Attorney General have been joined by Morris Manning and Clayton Ruby, who are intervening in the case and representing the abortion mills in Toronto. Their cross examinations of the defendants and some of the witnesses have resembled interrogations at times; some defendants have had to endure a grueling ordeal, lasting up to two days, of hostile questioning about their pro-life beliefs and activities.
“The crux of the case is that people should be allowed to express their pro-life opinions and picket against abortion on public property in a peaceful fashion,” says Brown. “As long as they are doing that on public property in a peaceful fashion, there should not be an injunction.”
The injunction itself seeks to restrain the defendants from creating a public nuisance within 500 feet of 23 different locations across the province. Brown says one of the problems with the government case is that the allegations are vague.
“To create a public nuisance usually means there have to be elements of trespass, violence and disturbance,” he says. “That’s what the Attorney General is alleging. The affidavits filed by the defendants, however, show that what they are doing is peaceful. I think the only conclusion that one can reach is that the Attorney General is trying to stop any form of picketing expressing a pro-life view within 500 feet of any of these locations.”
The lawyers representing the pro-life defendants will continue to stress the point that the injunction is politically motivated and that one of the objectives of the Attorney General is to stop pro-life expression. Brown gives as an example Jim Hughes, president of Campaign Life Coalition, who is “perhaps the most politically situated of them all and does little picketing.” The injunction, which tries to keep pro-lifers off the streets, names Hughes in spite of the fact he confines his activities mainly to the political arm of the pro-life movement. The public record of another defendant, Errol Alchin, shows the extent of his picketing activities to be his participation in one Life Chain. His pro-life views are expressed through preaching against the evils of abortion from the pulpit. He seems to have been included with the other defendants because of some remarks he made to a newspaper during his participation in one of the Life Chains.
In a statement of defence filed in court, the lawyers argue that the injunction is a politically motivated attempt to halt the activities of a group which opposes the government and represents a constant thorn in its side.
So far the pro-life movement has been on its own defending itself against the government actions. Civil liberties groups and unions have shied away from supporting the rights which are threatened by the NDP action.
“Although this case is fundamentally a freedom of expression case, I think most people shy away from the content of the expression, that is abortion,” Brown says.
“That is sad because what is freedom of expression unless it applies to all expression?”
The Civil Liberties Union has not sought leave to intervene and Brown says he is surprised by their inaction as “this is a classic civil rights case.”
Brown is joined by Peter Jervis, who represents a number of the Toronto-based defendants. Jervis will concentrate on general freedom of expression arguments. He will argue that the sidewalk counselors are giving information which is helpful to the recipients. Jervis himself is even more outspoken about the move by the Attorney General.
“I believe that the government’s conduct is a flagrant violation of the Charter of Rights and flies in the face of our democratic and constitutional traditions,” he says. “When the government seeks to prevent something as basic as quiet prayer or peaceful communication on the public streets, it’s a sad day for Canada.”
He calls the lawsuit “an astonishing abuse of governmental power,” in that the government is trying “to totally limit the right to peaceful picket, peacefully communicate and peacefully assemble on the public streets, especially when the purpose is to communicate help and assistance to women.”
Peter Lauwers, who is representing Jane Ubertino, will be offering freedom of religion arguments in the case.