We said in our brief that it was unfair to exclude from jury duty in criminal proceedings, citizens having religious or moral beliefs relating to the crime. We argued that the courts might just as well reject from murder or rape trials anyone who believes such crimes are morally wrong.
There was no one in that courtroom last October to object officially. There was no one to say, why are you excluding Canadians who believe in God?
The brief, prepared by lawyer Ronald McCloskey, Hamilton Right to Life and the three national organizations, argued that it was crucial that objections to the selection process be raised at the appeal.
On April 11, 1985, our plea was heard by Ontario Chief Justice William Howland. We were denied permission to intervene.
But note: Judge Howland’s denial cannot be interpreted to mean that he approved of the way the jury was chosen. On the contrary, Mr. McCloskey tells us that the judge was very interested indeed in what the pro-life groups had to say about that. His decision was made on other grounds. He argued that in general the courts should be wary of third-party interventions. “In a criminal proceeding, the Crown represents the public interest,” he said, “ and it alone is given the right to appeal from an acquittal.” (See The Globe and Mail, April 13,1985) “To permit a third party to intervene… would enlarge the scope of a Crown appeal … beyond that contemplated by Parliament.” In fact, as he himself went on to say, such interventions have sometimes been allowed. Pro-life groups intervened in the Morgentaler case that went to the Supreme Court of Canada in 1975. But in that instance submissions were limited to the constitutionality of the abortion laws. No constitutional issues were raised by our plea.