“It Cuts Like a Knife”: The Dismissal of Mary Wagner’s case by the Canadian Supreme Court

By Dr. Charles Lugosi, SJD — Editor’s note: The Canadian Supreme Court has refused to hear a case launched by Mary Wagner, a pro-life activist who was arrested for engaging in an act to save the lives of unborn children at a Toronto abortion facility in 2012. Mary’s goal was for the Court to agree that abortion kills a human being—a fundamental question of national importance. But the Court rejected the opportunity to put an end to the deaths of the unborn.

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On February 18, 2021, the Canadian Supreme Court refused to hear the constitutional test case launched by Mary Wagner that began on August 15, 2012, when she engaged in an act to save the lives of unborn children at a Toronto abortion facility. Mary’s actions were lawful, if her contention were true that an unborn child fit within the definition of “anyone” in s. 37 of the Criminal Code, which permitted at that time the rescue of a human being from an imminent fatal assault. In the way of her defense was s. 223 of the Criminal Code that excludes unborn children from the definition of a human being.

A constitutional battle in court ensued over Parliament’s authority to decide which human beings fall within the Parliament’s definition, and which do not. Mary based her arguments upon scientific truth. The government and the courts suppressed the truth by successfully preventing Mary’s experts from testifying, thus denying her the right to furnish the critical evidence needed to established the factual foundation for her constitutional defense.

All humans are human

Mary’s experts were prepared to testify that an actual human life begins at conception, is an individual and a human being.

Science conclusively answers the question, “Who is a human being?” From the time of successful fertilization, a human being exists, whose stages of development are classified before birth as zygote, embryo, and fetus, and after birth, as an infant, child and adolescent, before maturing into an adult. All human beings, at every stage of existence, are unquestionably human beings.

The prosecution did not introduce evidence to the contrary, as no such evidence exists.

Mary’s goal was for the court to agree with her that an abortion kills a human being. Her actions to save human beings at the abortion clinic were lawful, as she was defending the lives of the unborn, by using the force of peaceful verbal persuasion to change the minds of the expecting mothers in the waiting room.

Personhood Alliance - Mary Wagner abortion rescue in Canada

The end of legal abortion

Early in the case, counsel for the abortion clinic paid Mary the ultimate compliment, when he said to me that if Mary won, this would be the end of legal abortion in Canada. He easily recognized that we had exposed the most vulnerable point of attack to put an end to legal abortion. Once Parliament’s definition of “human being” was declared unconstitutional, abortion would then fall within the definition of the crime of homicide.

The prosecution and all the judges presumably were aware that this case was so important that the outcome of Mary’s case would decide if the legalized murder of the unborn would then become illegal and a serious crime. The stakes were high.

The prosecution’s tactic was to inappropriately characterize Mary’s challenge as an attempt to revisit the settled law that holds the unborn are not legal persons. To legally be a “person,” a human being must be born alive, and is only then vested with legal rights. The courts jumped on this convenient invitation to escape Mary’s winning arguments about human beings, and so found justification to dismiss her case.

Questions of national importance

Mary did not argue to change the current law regarding persons. She did not need to.

Section 7 of the Charter of Rights and Freedoms gives the right to life to “everyone” and s. 15 of the Charter gives equality rights to every “individual.” The Supreme Court of Canada has never before squarely answered the questions of whether “everyone” or “individual” means a human being at any stage of life. These were novel questions of fundamental national importance.

The Supreme Court was presented with an ideal opportunity to decide these questions. Unknown members of the Court chose not to give reasons to dismiss Mary’s case. They ought to have known from the filed materials that the legal test for leave was met to hear the case. The established jurisprudence merited leave to be granted.

Had leave been granted, the case argued, and reasons issued, one wonders whether which path the Court would have chosen. If the Court denied the truth of science, in favor of a legal fiction or a legal definition based upon a subjective value judgment that the lives of the unborn were disposable and unwanted, the Court may have experienced ridicule and viewed as bringing the administration of justice into disrepute.

Overriding the Charter in favor of Parliamentary definitions of human being would be seen as a license to remove from the definition of human being, not just the unborn, but also the elderly, the sick, the disabled, and others, based on race, religion, political belief, and any other category of humanity.

On the other hand, the Court could have accepted Mary’s arguments, that all human beings have inherent worth, dignity, and the unqualified right to life.

Injustice continues to prevail

Refusal to hear Mary’s case results in irreparable harm to those human beings now awaiting birth and those future human beings whose lives will not be governed by the rule of law, but by the arbitrary will and power of life or death exercised by legally privileged human beings over them.

If ever there were ever a case of supreme national importance, this was it.

For those who share Mary’s beliefs, dismissing Mary’s case significantly erodes their public confidence in the integrity of the justice system. How long will the definition of “human being” evade judicial review? For decades, Parliament has avoided the issue, to the point that political parties now purge well-qualified candidates for public office who hold pro-life views.

Now the Court has joined with Parliament to escape fundamental questions that cry out for resolution.  An authentic democracy is one where the lives of all human beings are respected and protected, including those of the powerless and the most vulnerable.

The crisis of abortion will not go away. This is a human rights issue of national importance.

It was for such a time as this, that courage to tackle fundamental questions that divide a nation must be confronted and decided. What if the Court heard and decided the case? The Court’s reasons may have revealed its moral character, legal acumen, integrity, faithfulness to the rule of law, and whether truth triumphed over ideology. It is a shame that the Court chose to avoid grappling with this very important case that could save the lives of millions of people in the future who may now never be chosen for birth because of the Court’s unwillingness to hear Mary’s case.

At least Mary’s conscience is clear, although her heart is cut to the core, by the Court’s rejection of this rare window of opportunity to put an end to the deaths of the unborn.

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The following documents were filed on behalf of Mary Wagner by her counsel, Dr. Charles Lugosi, SJD:

To learn more about how the Personhood Alliance stands for human life and human dignity, without exception and without compromise, subscribe to our email list.

Dr. Charles Lugosi, SJD, is a former constitutional and bioethics law professor, currently residing in Victoria, BC Canada, where he has a national practice in constitutional, administrative, and human rights law. Dr. Lugosi is a member of the various Bars in both Canada and the United States, including the United States Supreme Court. www.lugosi-law.com Dr. Lugosi was Mary Wagner’s attorney in this entire proceeding.

13 comments on ““It Cuts Like a Knife”: The Dismissal of Mary Wagner’s case by the Canadian Supreme Court

  1. Michael Lampard says:

    It would seem that this case scenario goes to the very heart of the abortion issue. I am from the UK but the issues here are as ‘live’ as with you in Canada. I have often Emailed my MP stating that his claim to support ‘human rights’ is completely bogus and hypocritical if he does not include the ‘human rights’ of the unborn child. I do not receive any response from him! Like the Canadian, and British Court system, their guilt screams through their silence. There is absolutely NO defence for their position. The fact that pro life is allowed by the public conscience to be expressed as a human rights issue suggests quite seriously how, nationally, our consciences have been utterly destroyed. The Bible states therefore, that we have become reprobate and beyond redemption, a serious spiritual issue for us as a nation.

  2. Gary Knight says:

    Unfortunately, much of the material in the Appelate’s Factum is poorly argued and rife with grammatical errors that produce ambiguities and lack of clarity. And it surprised me that nowhere was the fact led that S. 223(2)’s final words and the definitions in 223(1) were introduced in the Omnibus Bill C-150 (1968-69) and were explained by then Justice Minister John Turner in committee of the whole (also in the Senate) that it was a piece of legal fiction necessitated by the abortion law provisions elsewhere in the Bill: to create the legal vacuity that the abortion law was to fill. So When the S.C. negated the abortion law in Morgentaler (1988), it failed to do its homework and declare this vestige ‘null and void’ as an entailment. Finally, argument focussed too much on the local definition of ‘human being’ in S223(1) with purpose only of suspending the applicability of manslaughter; rather than just challenging the existence of the words Turner had added in 223(2): “after becoming a human being.” With these words properly removed, the definition does not matter: abortion of a “child” (well enough understood and defined) would be manslaughter. Then it would remain for Parliament to uphold the duty laid on it in Morgentaler (1988) to enact whatever exculpatory provisions it might intend, to avoid ‘criminalizing’ distressed mothers while yet deterring abortion providers. For that court said Canada has “a pressing interest” in the unborn subject. And yes, the word ‘subject’ is the proper application of ‘everyone’ in the Charter.

  3. Rick De Prisco says:

    When the wicked realize they have no logical answer for their defense of evil, their silence screams out that inability to support their position. Just so, the muteness of the high court is testament to its wrong. It’s an unwitting, and cowardly, admission of guilt.

  4. Margaret Phillips says:

    I believe pro life workers should continue to chip away at the consciences of ordinary people. Politicians, the judiciary and the media take their lead from what they imagine voters want. They are too cowardly and fearful of losing their positions to risk doing the right thing if they think ordinary voters are not onside. We must make them understand that they are behind the curve on this one, as more and more people of common sense are growing uneasy about abortion. This is the course to take—from the bottom up, not the top down. They are too thick and cowardly to have brave vision.

  5. KENNETH WILD says:

    I believe that since 1967, Abortion has increasingly been used instead of using one of at least 3 types of contraception, including morning after. It is Freedom without responsibility ! The Government & NHS need to have a plan to re educate people. resulting in less abortions & eventually no need for abortion except in very extreme medical conditions & rape. The successful end to abortion would save the NHS funds for much needed medical care. I have Autism & allowing abortion for downs syndrome or any reason up to birth does not make sense. I am not a burden on society I worked for 50 years in low paid jobs & was not diagnosed until age 65, 2 years before I retired 8 years ago. Thank you for listening. Regards kenn wild.

  6. M.J. Ferrari says:

    Canada is worse than Sodom and Gomorrha, and look what happened to them.
    We have legalized abortion, same-sex marriage and euthanasia – what next!
    A reminder: “Some devils are cast out only by prayer and fasting, and Lent is a good time to do it. “

  7. The judges must doubt that they will ever be judged by God Almighty. And, they must not believe that “do unto others as you want done to yourself “ applies to them. Well, woe to them on the day of judgement. We all know in our hearts and consciences that abortion is murder. Those that secure an abortion, perform abortions or allow abortion to be the law of the land care for their bank accounts, careers, selfishness. Unthinkable, killing a tiny innocent baby, created by God, so that you can live as you want. I pray for you.That you come to know the Love of God.

  8. Del says:

    There is nothing more heinous than taking the life of a child, children are God’s gifts to mankind.
    God and his wonderful gifts will not be mocked…those responsible will be held accountable.
    For nothing is secret, that shall not be made manifest; neither anything hid, that shall not be known and come abroad. Luke 8:17

  9. Jacob says:

    In Romans 1:18 -31 God says ” The wrath of God is being revealed from heaven against all the godlessness and wickedness of people, who suppress the truth by their wickedness, 19 since what may be known about God is plain to them, because God has made it plain to them. 20 For since the creation of the world God’s invisible qualities—his eternal power and divine nature—have been clearly seen, being understood from what has been made, so that people are without excuse.

    21 For although they knew God, they neither glorified him as God nor gave thanks to him, but their thinking became futile and their foolish hearts were darkened. 22 Although they claimed to be wise, they became fools 23 and exchanged the glory of the immortal God for images made to look like a mortal human being and birds and animals and reptiles.

    24 Therefore God gave them over in the sinful desires of their hearts to sexual impurity for the degrading of their bodies with one another. 25 They exchanged the truth about God for a lie, and worshiped and served created things rather than the Creator—who is forever praised. Amen.

    26 Because of this, God gave them over to shameful lusts. Even their women exchanged natural sexual relations for unnatural ones. 27 In the same way the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed shameful acts with other men, and received in themselves the due penalty for their error.

    28 Furthermore, just as they did not think it worthwhile to retain the knowledge of God, so God gave them over to a depraved mind, so that they do what ought not to be done. 29 They have become filled with every kind of wickedness, evil, greed and depravity. They are full of envy, murder, strife, deceit and malice. They are gossips, 30 slanderers, God-haters, insolent, arrogant and boastful; they invent ways of doing evil; they disobey their parents; 31 they have no understanding, no fidelity, no love, no mercy. 32 Although they know God’s righteous decree that those who do such things deserve death, they not only continue to do these very things but also approve of those who practice them.

  10. Dean Love says:

    This is not a surprising result. The SCOC has long shown an interest in judicial activism over issues that align with the so-called “progressive” agenda, but have shied away from simply even interpreting the law over issues like this one.

  11. William Smith says:

    The Blood of Innocent Children will continue to cry out in our Nation.
    Shame on our elected officials, shame on our “so-called” Justice System which continue to evade responsibility for answering the fundamental question as to whether “EVERYONE” does indeed have the right to live.
    Judgement is coming to Canada whether we want it or not. Prepare for it!

  12. Judy Sciberras says:

    This world is in a mess and every thing is going mad including the courts with some judges who do not value an unborn child right to life , those who are supposed to protect the innocent instead condemn them to the knife .
    A person kills another and is punished as it should be . Is this not a contradiction ?

  13. Richard Merriman says:

    The SCOC refused to hear the case. Willful blindness and deafness is the government’s pathetic defence. God help us all.

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