Pro-life prisoner Mary Wagner found guilty, but released

TORONTO – After almost two years, Mary Wagner’s marathon trial on charges of mischief and failure to comply with probation orders finally came to an end in a north Toronto courtroom Thursday afternoon, with her stepping out to freedom amid hugs and congratulations from about three dozen supporters. But the case is far from over.

Justice Fergus O’Donnell found her guilty on all counts and sentenced her to five months in jail on the mischief charge and four months on four counts of failing to comply with probation orders. He further levied two years of probation, with terms that she stay at least 100 metres away from any abortion site. However, because the time spent in jail exceeded the sentence, she was freed immediately.

The charges related to her entry of the “Women’s Care Clinic” abortion site on Lawrence Avenue West in Toronto on August 12, 2012 and an attempt to speak to abortion-bound women there. She was arrested, charged and has spent the duration of the following time in jail, the majority of it due to her refusal, for reasons of conscience, to agree to bail conditions that stipulated she stay away from abortion sites pending conclusion of the trial.

“I’d like to thank you from the bottom of my heart for the many contributions you’ve made spiritually, financially, through letters, through word of mouth. Thank you.”

Stepping out into the sunshine on a warm and windy day, Wagner remarked that the wind was something she noticed right away.

“The wind is something we don’t experience much in jail … because there’s a high wall around us,” she told LifeSiteNews. “The first thing that struck me was the wind. I feel free, inside and out, and it’s beautiful to see the people again – the good friends on the outside we’ve been separated from for a long time. So thanks be to God.”

She said although there were some difficult times in jail, it was nonetheless “fruitful in many ways, because a lot of people there are hungry for God and are looking to reach out to Him. I was constantly meeting women wounded by abortion and encouraging them to seek the mercy of God.”

She said she saw the time as “an opportunity for the Holy Spirit really to be at work in hearts that are broken, seeking and are open to God. So quite easily, prayer groups formed and people asked why I was there, why I was in jail. Immediately, I had the chance to share the truth about the wound of abortion.”

She estimated some 80 percent of the women she met in the Vanier Centre for Women in Milton had undergone an abortion and of those, 90 percent said they regretted it. “I would love to see more of a connection between the outside world and the inside world for women who are hurting,” she said. “Maybe just by penpals or visits and that, because a lot of them don’t have connections with somebody in their lives anymore.”

Wagner confirmed that she and her defence team will appeal the verdict. “Ultimately, the victory is not so much in the courts,” she said. “Of course, we’re going to seek justice for the children through the courts, but regardless, the call to love our neighbor who is in distress, who is in imminent danger remains. So I hope, God willing, to continue to reach out to the mothers and children who are in danger.”

She paid tribute to her lawyer, Dr. Charles Lugosi, who was joined by a co-counsel for the last several hearings thanks to monies raised for her defence fund by pro-life supporters. Lugosi continued “to persevere, continuing his research without funding. … This case was not widely known for the longest time,” she said. “But he continued to work very hard. … He’s put forth tremendous effort with great integrity in continuity with true justice and with our faith as well.”

“I’m very grateful for Charles’s work and for the support of all who have contributed through their prayers and financial contributions, large or small,” she said. “I’d like to thank you from the bottom of my heart for the many contributions you’ve made spiritually, financially, through letters, through word of mouth. Thank you.”

As a devout Catholic, her immediate plans were to attend Mass that evening and then head to the west coast of Canada to see her family. “The last time I saw my family … for the most part, was over two years ago. I hope, after a few days here, to go back to the coast and spend some time with them and then take some time to pray in solitude … and be open to God’s will.”

Prior to the verdict, Lugosi made final submissions before O’Donnell, arguing that the constitutionality of Section 223 of the Criminal Code of Canada, which states a human being begins only when he or she has emerged in a breathing state from the birth canal, has not been considered in any of the previous abortion-related cases before the Supreme Court, including the pivotal 1988 Morgentaler one.

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He had previously argued unsuccessfully that expert witnesses should have been allowed to testify at the trial as to the humanity of the pre-born. As well, he pointed out there were inconsistencies between the Supreme Court’s findings in the Morgentaler case and those in the euthanasia-related Rodriguez and Carter cases, where the court enunciated certain value-of-life statements.

“In both Carter and Rodriguez, the courts affirmed the unconstitutionality of involuntary euthanasia – involuntary death through deliberate medical intervention,” he said. “Why not be consistent and decide that involuntary abortion of the unborn child is also unconstitutional?”

“It is beyond the competence of Parliament to define whether a child is or is not a human being,” Lugosi continued. “The expert evidence is conclusive that a new human being begins at conception and-or fertilization and that abortion kills a human being, as a matter of reality.”

“It is a violation of natural law, the rule of law, the supremacy of God, the unwritten Canadian Constitution and the Constitution Act, 1982, for the judicial branch of government to abdicate to members of the legislative branch or executive branch of government, the absolute, untrammeled right to use legal definitions to exclude any class or individual human beings from the legal protections shielding all innocent human beings from a fatal assault intended to cause death,” he added.

Wagner’s defence rested on Section 37 of the Criminal Code, which allowed for actions in the defence of other human beings. It was the defence’s intention to demonstrate that the unborn at the Women’s Care Clinic on August 12, 2012 were, in fact, human beings under Wagner’s care and protection.

“As a matter of reason, a child is the same human being one second before birth and one second after being born alive. Location of the child, in or out of the womb, is irrelevant. What matters is scientific truth, free from corrupt and biased thought that seeks reasons to justify the death of an innocent child.”

Lugosi also appealed to Section 2 of the Canadian Charter of Rights and Freedoms, which guarantees freedom of conscience and religion, “not just to believe, but also to act, in the free exercise of these rights. Without the free exercise of these rights, these rights are meaningless. The rule of law has a moral component consistent with natural law and to deny the defendant’s defence is to subvert the rule of law and the superiority of natural law.”

Wagner saw her actions, concluded Lugosi, as legal, consistent with the entire constitution of Canada, the common law, the rule of law, and the supremacy of God.

In a rebuttal, Crown attorney Tracey Vogel argued the medical evidence intended to be put forth by the defence was “irrelevant” and that the two expert witnesses slated to testify, and whose will-say statements were put before the court, were not impartial. “This does not assist a live issue before the court,” she said. “The evidence is not true.”

The bottom line, Vogel continued, was that Wagner admitted the elements of both sets of offences she was charged with, interfered with the operation of a “private medical clinic,” had no reason to be there and caused “great upset” to patients, their families, and friends.

In his verdict, O’Donnell acknowledged abortion is a subject of great controversy and one over which there has been much previous litigation. He decided, however, there was no possibility of the success of Wagner’s argument, as the defence of necessity was not valid on account of her failure to use other avenues at her disposal for opposing abortion.

On sentencing, O’Donnell noted there was nothing he could say that would modify Wagner’s behavior. He acknowledged it was not his place to judge her strongly held beliefs; however, he observed her approach was not necessarily respectful. He encouraged her to think about whether her 22 months spent in prison might have been better used advancing her cause in a more effective manner.

He cited Wagner’s “very stubborn streak” and said it was his role as a judge to emphasize rehabilitation, deterrence, and denunciation so that the sentence resonated with her and others. Although he said abortion is a very polarizing issue, he added the Canadian way is one of compromise. Allowing either side of a controversial issue to break the law only encourages others to feel they can do so. The kind of “havoc” Wagner caused in August 2012 had to be circumscribed with further probation orders, he said.

The defence has 30 days to file a notice of appeal in the case. Reasons for a number of O’Donnell’s judgements during the trial, including disallowing public funding of Wagner`s defence and the testimony of expert witnesses, are still forthcoming.