Private citizens in Ontario and Quebec are seeking to have the abortion law enforced, and they are receiving markedly different reactions from the courts in those attempt. In Quebec, the courts have backed pro-life activist Reggie Chartrand in his attempt to prosecute privately a Montreal abortionist. At the same time, in Ontario, a Supreme Court judge has sided with Ontario’s Attorney-General Ian Scott, who has put a stop to the enforcement of the abortion law.
Criminal Charges.0
In Quebec, the dispute began last summer, when well-known boxer and pro-life activist Reggie Chartrand laid a private criminal charge against Montreal abortionist Yvan Machabee M.D. On September 12, 1986, Quebec Justice Minister Herbert Marx stayed the proceedings, that is, he had the charge set aside.
Mr.Chartrand, in response, applied to a judge of the Superior court of Quebec to have the Justice Minister’s action set aside. In a decision handed down on December 12, 1986 , Mr. Justice Bergeron accepted the arguments of Chartrand’s lawyer, Emile Colas and set aside the Justice Minister’s stay of proceedings. He did so on the grounds that the Minister’s action was a “fragrant impropriety”. The Justice Minister had stated that he had set aside the charge laid by Chartrand because the abortion law is unenforceable as evidenced by the inability to obtain a conviction in the various Morgentaler prosecutions.
Mr. Justice Bergeron held that that was a political consideration and was an improper use of the office of the Justice Minister. Bergeron declared, “The refusal to act expressed by the (Justice Minister’s) adjournment of the proceedings is not only unjustified, but flies against the obligation that he has to enforce the law and fulfill his duties.
With the Justice Minister’s stay of proceedings set aside , Mr.Chartrand is free to continue with the prosecution of abortionist Machabee on the charge of performing illegal abortions. In Ontario the situation is somewhat different , inasmuch as the charges were laid by the police. Last September 24, the Toronto police laid charges against abortionists Nikki Colodny, working in the Morgentaler abortuary, and Robert Scott, working in his own abortuary located in Toronto.
The charges were laid over the protests of attorney- General Ian Scott. On the same day the charges were laid by the police, Ian Scott stayed the proceedings.
Basic principle
Outraged by the actions of the Attorney-General, Rev. Ken Campbell, pastor of the Baptist Church in Milton, Ontario, and a long-time pro-life activist, applied to a Supreme Court of Ontario judge to have the stay set aside. The case was argued early in September by Campbell’s lawyer, Angela Costican. On January 30, Mr. Justice Craig handed down his decision which upheld the Attorney-General’s action and denied Mr. Campbell’s application. The court held that there was no fragrant impropriety on Mr. Scotts’s part. The judge agreed with the Attorney-General’s argument that it was reasonable to delay any further prosecutions until the Supreme Court had ruled on the constitutionality of the abortion law. Craig ignored the fundamental legal principle that a law is valid and in full force even though someone may be challenging the court.
Judge Craig went on to state that Rev. Campbell did not have standing , that is, that he did not have a direct interest in the case and therefore no authority to even bring the application before the court. This is in contrast to the ruling of the Supreme Court of Canada in the Borowski case, which decided that long-time pro-life activist Joe Borowski did have the right to bring an application on behalf of unborn children. If Judge Craig’s position were accepted as law across the country, pro-life lawyers would be unable to bring any application before the courts seeking protection for unborn children. Judge Craig went so far in his decision as to say that unborn children have no legal rights and consequently no right to demand that the law be enforced.
The decision is now being appealed to the Ontario Court of Appeal.
