Eight years after Mary Wagner was arrested in Toronto while trying to save mothers and children from the violence of abortion, her Charter challenge to the Canadian law denying the humanity of the unborn child has reached the Supreme Court of Canada.
Her lawyer, Dr. Charles Lugosi, is now seeking leave to appeal Wagner’s challenge of Section 223 of the Criminal Code to the country’s top court.
The importance of the constitutional challenge can’t be overstated, he told LifeSiteNews in a telephone interview.
“This is a significant case because it involves a national issue and that is abortion. And that’s why it merits leave to appeal (to the Supreme Court),” said Lugosi, who earned a doctorate in juridical science from the University of Pennsylvania.
Section 223, which dates in part to 1892, states, “A child becomes a human being within the meaning of the Act when it has completely proceeded, in a living state, from the body of its mother” (emphasis added).
“If we are correct that Section 223 of the Criminal Code is unconstitutional because it exceeds the power of Parliament to decide who is and who is not a human being, then what happens to the question of abortion?” Lugosi pointed out.
If the Supreme Court strikes down Section 223, “abortion then reverts to homicide under definition in the Criminal Code of Canada. … And because it’s planned, because it’s intentional, abortion then becomes the first-degree murder of an innocent human being,” he said.
“So that’s how the law would unravel. And that’s why there’s been such fierce opposition.”
Wagner also underscored the significance of the case.
“The courts have heard few voices pleading for our littlest brothers and sisters in the decades since abortion was decriminalized,” she told LifeSiteNews in an email.
“For this reason alone, this case is important. We (not ‘I’, since this case is not my own personal fight but ours), have an obligation to defend those who cannot speak for themselves in whatever ways we can,” Wagner said.
“Even if the courts refuse to rule in favor of the truth, thanks to all who support this case spiritually or materially, the truth has been spoken — and will be spoken to the highest court of this land — on behalf of God’s littlest ones,” she added.
“Above all, please pray for the success of this case in defense of the unborn and for the healing of suffering post-abortive mothers and all women considering abortion.”
14-year-old moms in abortion center the day Wagner was intervened
Wagner’s court challenge dates back to her arrest while peaceful intervening at the Women’s Care Clinic in August 15, 2012 — a day when at least two 14-year-old girls were scheduled to have their unborn children killed.
It’s not known if the minors were in the waiting room when Wagner, then 40, arrived with red roses and offers of assistance, or if they came before, or after, Toronto police officers dragged her away.
But during Wagner’s December 2013 trial, abortionist Saira Markovic testified that the teenage mothers were among her intended customers that day.
A lapsed Muslim whose website advertises that she aborts unborn children up to 20 weeks’ gestation, and offers “services without parental consent” at the abortion facility run by her Catholic husband, Michael, Markovic described Wagner’s action as akin to a home invasion.
“My house is my clinic, this is my life,” the angry abortionist told the court.
“Why is someone invading my house, my property?”
Lugosi provided the court a comprehensive legal answer: His client’s defense for her action fell under Section 37 of the Criminal Code then in force, which stated, “Everyone is justified in using force to defend himself or anyone under his protection from assault …”
He argued that “anyone” includes the unborn child, and further argued that Section 223, which obstructs this defense, is unconstitutional.
By denying that the unborn child is a human being, Section 223 violates the Charter’s Section 7 guarantee of an individual’s right to “life, liberty and security of person,” and Section 15’s guarantee that: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law … ”
But when Wagner’s trial and attendant Charter challenge finally ended, Justice Fergus O’Donnell of the Ontario Court of Justice rejected all arguments, and on June 12, 2014, he convicted Wagner and sentenced her to time served.
Wagner, who has spent nearly six years altogether behind bars for her pro-life advocacy, was then released after almost 22 months in jail.
Road to Supreme Court long and costly
O’Donnell later amended his ruling and conceded Wagner’s right to a Charter challenge, thus clearing a road to the top court that has been long, costly, and marked by defeats.
In December 2016, Lugosi argued his appeal of O’Donnell’s decision in a three-day hearing in front the Ontario Superior Court Justice Tamara Dunnet. Scarcely three weeks later, Dunnet released a decision dismissing the appeal on all counts.
In February 2017, Lugosi filed a request for leave to appeal with the Ontario Court of Appeal. In June 2017, he filed an amended notice and in February 2020 his factum.
On September 14, 2020, a panel of three Ontario justices denied him leave to appeal.
But what appeared to be a final blow to the case has, in fact, opened the door to the Supreme Court of Canada.
That’s because Section 40(1) of the Supreme Court Act grants Canada’s top court the discretion to reassess any final or other judgment of the intermediate appellate courts on an issue of national importance.
“We are actually delighted that the Ontario Court of Appeal refused leave to hear this difficult question, because it speeds up the process for us to make our application to the Supreme Court,” Lugosi told LifeSiteNews.
He has until November 13 to file the application for leave to appeal to the Supreme Court, and if the application is denied, “then that is the end of the road for this attempt to challenge the law.”
However, Lugosi believes that “ideally” the Supreme Court will hear the case.
“It seems to me that if the test in law is an issue of national importance, and I believe it’s clearly an issue of national importance, then one would be left wondering for a long time, well, if this isn’t a question of national importance, what is?” he said.
Moreover, he echoed Wagner’s conviction that it is essential to try.
“We can do the right thing in good conscience and hoping the truth will prevail. And it’s our duty to be witnesses to the truth,” said Lugosi.
“And if our witness is rejected, well, it’s not our fault, but we have had the courage to speak the truth to those in authority, and the responsibility for the decision rests upon those in authority.”
Crown prosecutors ‘mis-framed’ the legal question
The Supreme Court has never been presented with the legal issues raised in Wagner’s Charter challenge to Section 223, Lugosi contends, adding that there has been a “deliberate mis-framing” by the Crown prosecutors that Wagner’s case is “really all about ‘personhood.’”
But the distinction between “human being” and “person” is a “matter of common sense, dictionary definition, and jurisprudence,” he pointed out.
“Personhood” is a “legal fiction” and a status “bestowed upon a human being to give certain rights,” similar to the distinction between a citizen and a non-citizen, explained Lugosi.
“In other words, the classification of ‘personhood’ or ‘citizenship’ should not make any difference, because we are all human beings, and all of us deserve equal protection. So that’s the key argument in a nutshell.”
Section 223 was not “originally contemplated as a provision designed to permit abortion,” but is part of the Criminal Code’s section on homicide (defined in Section 222 as causing “the death of a human being … directly or indirectly … by any means”) and intended to clarify definitions for the purposes of criminal law, Lugosi observed.
But with abortion no longer sanctioned by law, “what Section 223 does, by legal definition, is permit the legal killing of all unborn children,” he said.
The “fundamental problem with this” is that Parliament does not have the authority to define who is and who is not a human being, particularly when “from the point of view of science and medicine and morality … a biological human being … is known in truth to be a human being,” Lugosi said.
“You cannot live in a legal system where the goal is truth and justice, and end up with basing a legal decision based upon fiction and fantasy, just to achieve, let’s say, political appeasement of people who have different values and different motivations,” he added.
Moreover, Section 223 reveals “a hypocrisy or inconsistency in the law” with regard to the “equality” Section 15 of the Charter.
“This is a unique and novel question, because how can it be equality under the law if someone below a certain age may be legally murdered by legal definition, and someone who’s over a certain age, if they’re murdered, it does constitute legal murder?” Lugosi pointed out.
John Bulsza, the veteran London-based pro-life activist who has been doing yeoman’s service raising funds during the marathon journey to the Supreme Court, echoed Wagner in describing the crucial importance of the Charter challenge.
“This case is our case. It will mean the end of abortion in Canada,” he told LifeSiteNews.
“Thus, no more protests at abortion clinics and hospitals; no more 40 Days for Life and Life Chains, et cetera. It would mean society being retooled, including financially, to support all mothers and their pre-born children.”