2015 Holiday Office Hours

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Re-charge to the Jury,
(Parker, A. C. J.)
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NOVEMBER
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---Upon resuming at ten o'clock a.m.
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---Jury polled, all present.
RE-CHARGE TO THE JURY BY HIS LORDSHIP (Oral)
Members of the j1.1ry, when I last
addressed you I told you not to start your deliberations
until I either re-charged you or told you to start your
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deliberations.
The reason for this is that it is normal in
every criminal case, after the judge completes his charge,
and the jury retires, to ask counsel for their objections.
Some people think that is unusual and seem surprised that
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in this case we have objections.
I have never had
a
criminal case, or very rarely had a criminal case, where
you don't get objections because judges are human, they
make errors, they misquote the evidence, and it is the duty
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of counsel to point them out and counsel are doing their
job when they do point out errors to the judge, or point
out where they disagree as to the law or
inferences
you might draw from the evidence.
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If it appears that the explanation of law
could be more accurately presented or that the law as I
gave it to you might leave you with the wrong impression
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or the inferences from the evidence might do that, then
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the judge should attempt to clarify it even though he,
himsel{, may feel that what he said the first time was
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perfectly right and that the proper
infer~nces
could be
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Re-charge to the Jury -- (Parker, A.C.J.)
drawn from it.
It is like a lottery, if you get, say, fifty
objections and you don't answer them, one of them may be
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an objection which could result in a new trial.
So the
judge, to avoid that risk, leans over backwards to try and
make sure there can be no wrong interpretation.
Now, the first objection I want to deal
with and quite frankly, objections take time, both the
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counsel have got to make them, and the judge has to answer
them or decide whether they should be answered, and time
is something we haven't got very much of when we are doing
this.
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A judge has to do it between when he gets the
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objections one day and recharge. t~e next day.
So while
everybody else is sleeping the judge is still working.
I am not asking for sympathy.
I am merely saying if my
voice gets slurred or tired, just think that last night
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while you were sleeping, I was still working.
a little on the early side, 4:30.
But I quit
I figured I needed a
couple of hours sleep before I carne in.
Now, the first objection that I had to
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consider was something that wasn't in my charge at all.
You
may recall that in his Address to you, Mr. Cooper stated that
he had challenged the jury for cause to ensure he would get
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an impartial
~ry.
Mr. Manning suggests that you might get
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the wrong inference from this, that he was trying to get a
jury that was partial to his cause.
T~at
he was trying to
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Re-charge to the Jury-- (Parker, A.C.J.)
get a jury that was favourable to his client and that I
should tell you that if Mr. Cooper hadn't challenged for
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cause he, Mr. Manning, would have.
Well, he could have
told you that himself in his address had he thought of it
but in any event, I have now told you that.
I am giving
evidence, but I am giving it at the request of counsel.
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So I am telling you that you can draw the inference that
both counsel wanted to be impartial.
I should point out, however, and this is
the reason I didn't refer to it in my Charge, that any
inference you may draw as to whether counsel did or did not
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want an impartial jury, is irrelevant as to guilt or
innocence.
I don't think it makes any difference.
However,
I have dealt with that.
Another objection is in the general
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category.
Mr. Cooper in his Charge referred to the sentence
that might be imposed in this case and then I told you that
sentencing was the responsibility of the judge, and the
judge, if an accused were found guilty would try to -- it
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is his duty -- to tailor the sentence to the offence.
my closing remarks I said to you:
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"You are not concerned
with the consequences of your verdict."
of the law and that is the law.
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I was conscious
I gave it to you.
However,
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it has been suggested that because of Mr. Cooper's remarks
and my,comments in respect of them that you may have the
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Re-charge to the Jury-- (Parker, A.C.J.)
impression that you can look at the consequences of your
verdict.
I don't know how you could get that impression,
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but if you have it, I point out to you and repeat again,
what I said before, you are not concerned with the
consequences of your verdict.
Another objection to my charge was that
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I broke the case into two parts.
First, the charge of
conspiracy and then the Defence of Necessity and that I did
not refer to the cross-examination of the Crown witness
while dealing with the Crown's case.
Counsel submitted
that the effect of this was to take away the case for the
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Defence.
So that you do not draw any wrong or
negative inferences, I should explain why I proceeded in
that order.
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I dealt with the Crown's charge first because
unless the Crown satisfies you beyond a reasonable doubt as
to each element of the offence of conspiracy, the accused
isn't even called on to present a defence.
He doesn't
have to offer one unless the Crown first shows that he
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has broken the law.
So to me it appeared that the logical,
orderly way was to first show that there was an offence,
and then if there was an offence, did the Defence of
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Necessity apply.
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I did not intend you to infer because
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I didn't refer to the cross-examination of the Crown
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Re-charge to the Jury-- (Parker, A.C.J.)
witness that that was not relevant.
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I did not think it
was particularly relevant to the Defence of conspiracy,
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so I didn't mention it there.
I thought it was all
directed to necessity, and I did refer to it when dealing
with that subject.
Having now told you why the Charge
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was organized in that order, I ask you not to draw any
negative inferences from the order.
Here is something about a comment I
made that I, perhaps, should not have made, while talking
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about my Charge, I said the subject was boring.
referring to my own charge.
I was
I didn't think having to
read sections of the Criminal Code to you was very
exciting, but the words I used might indicate the subject
I was talking about was abortion.
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would say that was a boring subject.
I don't think anybody
That is a pretty hot
subject with conflicting opinions about it.
However,
Counsel for the Defence submitted that you might draw an
inference from my remarks that this was an invitation to
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ignore the Defence.
Please don't draw any inferences from
the remarks I made.
It was just a comment I shouldn't
have made.
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I do intend to re-charge you upon the
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general principles of law that apply to the Defence of
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Necessity.
I should say that apply both to conspiracy and
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Re-charge to the Jury-- (Parker, A.C.J.)
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necessity.
I would ask you to accept what I told you
previously unless I now say something different, and if I
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do point out a difference, then take the difference.
But
generally, I will be rephrasing it in another way to make
it easier for you to understand, or to accent some point
which I did not before.
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When dealing with the specific charge,
that is with the charge of conspiracy, I read you the
relevant portions of the law first.
I read you the
relevant portions of it for what the Crown alleged, portions
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of Section 251 which deals with the charge of abortion and
Section 423 which deals with conspiracy.
you the whole sections word for word.
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I did not read
I only picked out
those phrases that I thought applied to this case.
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Counsel, however, both Counsel, prefer that I read you the
full sections, so I do so now.
"Every one who, with intent to
procure the miscarriage of a female person,
whether or not she is pregnant, uses
any means for the purpose of carrying out
his intention is guilty of an indictable
offence and is liable to imprisonment
for life."
I didn't
I didn't read that to you.
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think it was your concern.
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I didn't mention either,
whether or not she was pregnant because I don't think that
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is any big issue, but I have now read you that Section (1).
subsection (1).
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Subsection (2) reads:
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Re-charge to the Jury-- (Parker, A.C.J.)
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"Every female person whoi oeing
pregnant, with intent to procure her
own miscarriage, uses any means or
permits any means to be used for the purpose of carrying out her intention is
guilty of an indictable offence and is
liable to imprisonment for two years."
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I didn't read you that because I didn't
think any female persons were being charged.
We are dealing
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just with th& accused.
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I have now read you that.
(3)
"In this section, 'means' includes
(a) the administration of a drug or
other noxious thing,
(b) the use of an instrument, and
(c) manipulation of any kind.
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"Subsections (1) and (2) do not
apply to
(a) a qualified medical practitioner,
other than a member of a therapeutic
abortion committee for any hospital,
who in good faith uses in an accredited
or approved hospital any means for the
purpose of carrying out this intention
to procure the miscarriage of a female
person, or
(b) a female person who, being pregnant,
permits a qualified medical practitioner
to use in an accredited or approved
hospital any means described in paragraph
(a) for the purpose of carrying out her
intention to procure her own miscarriage,
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"if, before the use of those means, the
therapeutic abortion committee for that
accredited or approved hospital, by a
majority of the members of the committee
and at a meeting of the committee at which
the case of such female person has been
reviewed,
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"(c) has by certificate in writing stated
that in its opinion the continuation of
the pregnancy of such female person would
or would be likely to endanger her life
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Re-charge to the Jury -- (Parker, A.C.J.)
"or health, and
"(d) has caused a copy of such certificate
to be given to the qualified medical practitioner.
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(5)
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"The Minister of Health. of a province may
by order
"(a) require a therapeutic abortion
committee for any hospital in that
province, or any member thereof, to
furnish to him a copy of any certificate
described in paragraph (4) (c) issued by
that committee, together with such
other information relating to the circumstances surrounding the issue of that
certaificate as he may require, or
"(b) require a medical practitioner who,
in that province, has procured the
miscarriage of any female person named in
a certificate described in paragraph (4)
(c}, to furnish to him a copy of that
,certificate, together with such other
information relating to the procuring
of the miscarriage as he may require.
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"For the purposes of subsections (4) and
(5) and this subsection
"'accredited hospital' means a hospital
accredited by the Canadian Cou~il on
Hospital Accreditation in which diagnostic
services and medical, surgical and
obstetrical treatment are provided;
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"'approved hospital' means a hospital in
a province approved for the purposes of
this section by the Minister of Health of
that province;
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"'board' means the board of governors,
management or directors, or the trustees,
commission or other person or group of
persons having the control and management
of an accredited or approved hospital;
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"'Minister of Health' means
"(a) in the Provinces of Ontario, Quebec,
New Brunswick, Manitoba, Newfoundland
and Prince Edward Island, the Minister of
Health,
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Re-charge to the Jury-- (Parker, A.C.J.)
"(a.l) in the Province of Alberta, the
Minister of Hospitals and Medical Care,
"(b) in the Province of British Columbia,
the Minister of Health Services and
Hospital Insurance,
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"(c) in the Provinces of Nova Scotia
and Saskatchewan, the Minister of
Public Health, and
"(d) in the Yukon Territy and the
Northwest Territories, the Minister of
National Health and Welfare;
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"'qualified medical practitioner' means
a person entitled to engage in the
practice of medicine under the laws of the
province in which the hospital referred to
in subsection (4) is situated;
"'therapeutic abortion committee' for any
hospital means a committee, comprised of
nbt less than three members each of whom
is a qualified medical practitioner,
appointed by the board of that hospital
for the purpose of considering and
determining questions relating to
terminations of pregnancy within that
hospital.
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(7)
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"Nothing in subsection (4) shall be construed as making unneccary the obtaining
of any authorization or consent that is or
may be required, otherwise than under this
Act, before any means are used for the
purpose of carrying out an intention to
procure the miscarriage of a female
person."
That is section 251 in full.
Next, you may recall that I then explained
what conspiracy was.
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agreement between two or more persons to do an unlawful act
or to do a lawful act by unlawful means.
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I read to you that conspiracy. is an
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I read you that.
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Re-charge to the Jury-- (Parker, A.C.J.)
I then gave you the law which relates to conspiracy.
You
will be glad to know I don't intend to go over that again and
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read my old charge as to the general law that applies to
conspiracy.
However, in dealing with the elements of the
offence I told you that they were two, and I just read what I
read you before.
to:
The Crown must prove (1) that there was an
agreement to do an unlawful act and,
agreed with
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(2) that each accused
or more of the others to carry out the unlaw-
ful act.
You will note in giving you the elements
I omitted to say when reading that there was
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an agreement
to do an unlawful act, I didn't read you,"or a lawful act by
unlawful means." I didn't.
I left it out deliberately
because of the wording of Section 251 (1)
abortion is illegal, in effect.
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w~ich
says
Subsection (4) says Section
(1) does not apply if the procedure is carried out -- and I
am not going to read the whole section again, I am going
to point to the relevant parts -- by a physician, and
certain other conditions are met -- being done in a hospital,
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and getting a certificate and so on.
However, so that there
will be no misunderstanding that the element covers both
situations, I now say that the first element is (whenever I
referred to that element in my charge) you should add in those
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extra words.
So that the first element is that there was
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an agreement to do an unlawful act, or a lawful act by
unlawful means.
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Whenever I refer to it, you should add into
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Re-charge to the Jury-- (Parker, A.C.J.)
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it those extra words.
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The next objection relates to the evidence
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called by the Crown to prove that the Morgentaler Clinic
was not an approved hospital.
I told you that the evidence
of Mr. Walker was that the premises of 85 Harbord were never
approved.
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Counsel for the Defence objected that since only
the Minister could approve -- and that is so -- and that
Mr. Grossman was not called to say he had not approved, I
should not have said that, since his evidence was not
conclusive and he hadn't looked at the records. That is what
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the man admitted on,cross-examination.
Mr. Cooper in response said that I
should explain to you the law that applies in that, because
before that evidence was put to you there was a Voir Dire
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in respect of the admissibility of that.
argument.
It was a legal
That is why I had to decide it, not you.
. a pro h.1 b.1t1on
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. h an exception '
Wh ere th ere 1s
w1t
as in 251,
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it is for the accused to raise a reasonable doubt
that they come within the exception.
That is a point of law.
Dr. Morgentaler didn't say that the clinic was approved and
in cross-examination Mr. Walker said that the reasons for
saying the clinic was not approved as a hospi tal•. 'W.~~ b~·=z. :sc
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he had checked the statutes. He was asked had he looked at the
records, and he answered:
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"No."
But his reason was
t~at
he
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Re-charge to the Jury-- (Parker, A.C.J.)
had checked the statutes and it was not approved
a public or private hospital.
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If it had been, it would have
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been in the statute as being approved.
So what I did was
infer one thing from another instead of saying what Mr.
Manning was saying, there was no direct evidence on that
I have already told you evidence may be direct or
point.
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circumstantial.
So what I said to you was not inaccurate,
but perhaps a better way to have said it is, it is for you
to decide on the balance of probabilities whether the clinic
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was accredited or approved as a hospital.
It is for you to
decide on the evidence whether the evidence shows whether
or not the
hospita~was
approved or was accredited.
Because
the Crown says if it was neither, then they didn't comply
with the exception in Section 251 which would make an
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abortion a legal act.
In dealing with the evidence of Massey
and Kelman, I said they were not asked whether they tried to
get into an approved hospital.
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I was, obviously, referring
to the forms found on the premises by Kelman at the time,
which had that typed part in, relating to that they had made
efforts other places unsuccessfully.
I should point out, however, that the
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Defence evidence was that the procedure was to ask this
question and that Miss Massey hadn't finished the form
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In other words, there is more
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4013
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Re-charge to the Jury-- (Parker, A.C.J.)
Some of the
evidence on that point that goes to that issue.
forms found state that they could not get an abortion in the
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system.
The Crown points out that if you look at the
appointment book, there were far more women, apparently,
that got abortions, than there are forms from women saying
they had been rejected by the system.
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The Crown suggested
that the pre-typed forms indicated a trumped up Defence of
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Necessity.
They had the forms all prepared before they
knew what the woman's answer was going to be.
That is the
Crown's position.
Against this is the evidence of Dr.
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Morgentaler that th~y intended to deal only with women
who
were rejected, but on cross-examination, he said they
trusted them and just took their word for it.
This evidence that I have just referred to
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may be relevant to the first element of the defence of
conspiracy, as to whether there was conspiracy.
That is the
evidence of Massey and Kelman and the documents they found
may show that one element of proving that offence, that
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abortions were being performed there.
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It may also go, and
this is the point the Defence makes, it may also go as well
to the Defence of Necessity, whether the clinic was supplying
abortions only to women who couldn't get an abortion in the
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system.
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I point out to you though, that once again
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It may go to the element of emergency.
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you should consider all the evidence for and against before
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Re-charge to the Jury-- (Parker, A.C.J.)
you make a finding on this or any other issue.
I am not going to deal with some
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principles that apply to the Defence of Necessity.
The
charge I read to you I thought set these out because I
extracted them from the same case, but it may be that I did
not word them just in the same way as they were worded before.
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I may have deleted what I thought was extraneous and
distillea it down to what I thought was a clear way for you
to understand, but in doing so I may have taken away
something from the principles that were set out.
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What I am going to do is refer to those,
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some of them, and I am going to refer to them almost
directly from the most recent case on the Defence of Necessity.
I start with the principle, and it is a
general principle of law:
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"No system of positive law can
recognize any principle which would
entitle a person to violate the law
because in his view the law conflicted
with some higher social value."
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The next principle, and now we are
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getting into the question of excuse of the Defence of
Necessity:
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"Criminal law cannot hold people
to the strict obedience of laws in
emergency situations where normal human
instincts, whether of self-preservation
or altruism, overwhelmingly compels
its disobedience.
Such acts are still
wrongful, but in the circumstances they
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Re-charge to the Jury-- (Parker, A.C.J.)
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"are excusable. Praise is indeed not
bestowed, but pardon is, when one
does a wrongful act under pressure
which in the words of Aristotle
overstrains human nature and which
no one could withstand."
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That is the type of emergency that we are
dealing with that that defence applies to.
Then I referred to an example and
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admittedly the example I referred to was only the reaction of
one man, the mountain climber, and I changed it a little bit
from this one, I used a slightly different factual situation.
This is an example though, and it roay roore accurately set out
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the test than mine.
I think it is the same.
"The lost Alpinist who, on the
point of freezing to death breaks open
an isolated mountain cabin is not
literally behaving in an involuntary
fashion.
He has control over his
actions to the extent of being physically
capable of abstaining from the act.
Realistically, however, his act is not a
voluntary one. His choice to break the
law is no true choice at all.
It is
remorselessly compelled by normal,
human instincts."
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In other words, by self-preservation.
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Then, still dealing with the rationale for excuses in the
Criminal Law:
"It is said at the heart of this
defence is the perceived injustice of
punishing violations of law in circumstances in which the person had no other
viable or reasonable choice available.
The act was wrong, but it is excused,
because it was realistically unavoidable."
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And the word is "realistically unavoidable".
Then under limitations of the defence:
"If the defence of necessity is
to form a valid and consistent part of
our criminal law, it must, as has been
universally recognized, be strictly
controlled and scrupulously limited to
situations that correspond to the underlying rationale.
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"The defence of necessity is restricted to instances of non-compliance in
urgent situations of clear and immediate
peril. when compliance with the law is
demonstraoly impossible. This
restriction focuses directly on the
involuntariness of the purportedly
necessitous behaviour by providing
a number of tests for determining whether
~he wrongful act was truly the only
realistic reaction open to the actor or
whether he was in fact making what in
fairness could be called a choice.
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"If he was making a choice thenthe
wrongful
act cannot have been
involuntary in the relevant sense. The
requirement that the situation be urgent
and the peril be imminent tests wheth~r
it was indeed unavoidable for theactor
to act at all.
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"At a minimum the situation must be
so emergent and the peril must be so
pressing that normal human instincts cry
out for action and make a counsel of
patience unreasonable.
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"The requirement that compliance
with the law be demonstrably impossible
takes this assessment one step further,
given that the accused had to act, could
he, nevertheless, realistically have
acted to avoid theperil or prevent the
harm without breaking the law? Was there
a legal way out?
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"The question to be asked is
whether the agent had any real choice.
Could he have done otherwise.
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"If there was a reasonable legal
alternative to disobeying the law then
the decision to disobey becomes a
voluntary one impelled by some
consideration beyond the dictates of
necessity and human instincts.
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"The importance of this requirement,
that there be no reasonable legal alternative cannot be overstressed even if the
requirements for urgency and no legal
way out are met.
There is, clearly,
a further consideration. There must be
some way of assuring the proportionality.
No rational criminal justice system,
no matter how humane or liberal could
excuse the infliction of a greater
harm to allow the actor to avert a
lesser evil.
In such circumstances we
expect the individual to bear the harm
and refrain from acting illegally.
If
he cannot control himself, we will not
excuse him."
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The harm
inflicted must be less than the harm sought to be avoided.
In dealing with onus of proof, this
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too, I believe I mentioned more than once:
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"Although necessity is spoken of
as a defence in the sense that it is
raised by the accused, the Crown always
bears the burden of proving a voluntary
act.
The prosecution must prove every
element of the crime charged.
One such
element is the voluntariness of the act.
Normally, voluntariness can be presumed,
but if the accused places before the
Court through his own witnesses, or
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Re-charge to the Jury-- (Parker, A.C.J.)
"through cross-examination of Crown
witnesses, evidence sufficient to raise
an issue that the situation created by
external forces was so emergent that
failure to act could endanger life or
health, and upon any reasonable view
of the facts compliance with the law
was impossible, then the Crown must
be prepared to meet that issue.
There
is no onus of proof on the accused."
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That is the quotes of law direct from the
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case.
It is;obvious that I didn't give it to you the same
way and left out some parts of it, but I have now given you
both my gist of what the law is, and if I may use that word,
and the actual reading taken from a case.
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~ormally,
I do not read law.
I believe
it is far better to place it to you in words that set out
the principle, but are perhaps easier to understand.
However,
the danger of doing that is that I may leave out parts of an
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element or it may be interpreted differently. So by doing i t
this way, you have both situations.
Last night my decision was to re-read to
you what I read to you previously from my charge.
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I am not so sure that I need to do
that.
It would take more time.
It is only a day or so ago
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that I read you -- I think I set out -- each of the
elements, each of the
principles, but I
used my own words rather than the words from the case.
\
40'19
I
Re-charge to the Jury-- (Parker, A.C.J.)
I am going to re-read it for another
i
reason, because I have referred to the tests and I think
1
5I
I synopsized the tests for you.
It may be easier for you
to
I started by saying our
understand the tests again.
system of criminal justice does not sanction voluntary
breaches of the law.
10r
It is not open to an accused to rely
;
on the defence of necessity in order to justify conscious
law-breaking or acts of civil disobedience.
Referring to acts of civil disobedience
the defence does not entitle a person to violate a law
15;
beca~se
in that perpon's view the law conflicts with some
social value or some higher value. The Defence of Necessity
for non-compliance with the law is very restricted, available
only in urgent situations:
20
clear and immediate peril when
compliance with the law is demonstrably impossible.
In other words, although the accused's
actions in breaking the law were wrong, it is excused because
in the circumstances the accused had no viable or reasonable
choice.
25
In measuring whether the accused really had
a choice you should exclude conduct attempted to be justified
on the grounds of an ethical duty internal to the conscience
\
30\
\
of the accused.
Rather, you should measure the accused's
i
i
actions on the basis of society's expectations of appropriate
\
IL_
I
and normal resistance to pressure.
I said, likewise, you
4020
I
Re-charge to the Jury-- (Parker, A.C.J.)
should not judge necessity on the basis of your own view of
the abortion law.
In order to assist
your determination
5
whether the Defence of Necessity has been made out, I am
going to outline three tests.
That is why I am re-reading
this to you, to give you this part.
If it is found on the
basis of all the evidence that the accused have met the
10
requirements of all these tests then the Defence of Necessity
;
I
succeeds. -
I
basis of the evidence have not met the requirements of
If it is found that the accused on the
these tests then the defence cannot succeed.
15!
Each of the following three ·requirements
must be met before it can be found that the defence succeeds.
If the accused have shown to your satisfaction that one of
the tests have been met, but not the others, then the
~J
defence fails.
It must be your conclusion on the basis of
all the evidence that all three tests have been met.
And here is where I distilled it, but please,
when I am distilling it, remember
25
1
I have just
told you what all the law is that applies to each test.
I say now, for the first test the Defence of Necessity does
not apply except in a situation of emergency when the harm
threatened is so immediate and the peril so imminent that
~l
it compels disobedience of the law.
In other words, it
must be found that the accused had to act.
choic~
In effect, his
to break the law was no true choice at all. The
4021
Re-charge to the Jury-- (Parker, A.C.J.)
emergency must have existed at the time the
the agreement to break the law.
accus~d
formed
At a minimum, the
5
situation must be so emergent and the peril so pressing
that normal human instincts cry out for action and made
a counsel of patience unfeasible.
Then I asked you a question.
I
10
In other
1
words, can
the
i~
situa~ion
be said that any reasonable man would find
facing the accused when he made the agreement,
so dire and desperate that immediate action is demanded?
If you find that there was no such emergency, the Defence
15
of Necessity fails.
1
You need go no further.
And that
'
is one of the submissions the Crown made in closing, his
main point was there was no emergency.
If you find that the test, however, is met,
20 1
then you must go on to consider the second test, having
found that the situation was one in which the accused had
to act, you must still ask yourselves, could the accused
nevertheless have realistically acted to avoid the peril
or prevent harm without breaking the law.
25
was there a legal way out?
In other words,
The importance of this
requirement cannot be overstressed.
The question to ask
yourselves is whether the accused had any real choice.
\
Could they have done otherwise?
If there was reasonable legal
30
\
alternatives to disobeying the law then the Defence of
L_
Neces~ty
is not open, if there were options open to the
4022
~
Re-charge to the Jury -- (Parker, A.C.J.)
accused other than the option of disobeying the law, then
I
I
their actions cannot be found to be necessary in the
51
relevant sense.
If you find that there was a reasonable
legal alternative to breaking the law then the defence
fails.
10
If you find that there was no reasonable legal
alternative then you apply the third test, whether the
action was proportionate.
Even if it is found that there was an
emergency situation and the peril was so imminent that it
compelled disobedience of the law and compliance of the
151
law was impossible, it is still necessary for you to consider
the third test:
whether the action was proportionate.
In
other words, it must be found the harm inflicted by breaking
20 1
the law is less than the law sought to be avoided.
Our criminal justice does not permit the
accused to inflict a greater harm in order to avoid a lesser
evil.
Those are the three tests.
And I said to you then,
that is the law that applies to the Defence of Necessity.
25,
I am dealing now with the next objection.
The next objection, in dealing with the theory of the
Defence, I said and I better read it to you:
\
it is the
theory of the Defence that women in Ontario who find
~0
themselves with an unwanted pregnancy and who desire an
I
L
abortion often discover that this medical service is unavail-
4023
~
Re-charge to the Jury -- (Parker, A.C.J.J
able to them due to the present state of the law and because
I
of the necessity of having to obtain an abortion at a
I
5i
hospital with the approval of a therapeutic abortion committee
and that even when the service is available women who have
qualified for an abortion are required to suffer delay which
increases the risk to them, and I said to their"healt~'·
10
I should ha.ve said"health or life."
The theory of the Dc:cnce is that this
situation was an
~~ergency
so pressing and so perilous that
it was involuntary and that the accused had no other choice
I
15:
than to agree to open a clinic, in effect.
In deciding whether or not I should recharge you on that, I had to consider was that a fair test
or whether it was not, and there are some things which the
20
Defence referred to that I didn't mention.
were a couple, anyway that I didn't mention:
I think there
about
Dr. Morgentaler lobbying and I think I did mention, yes,
I said:
due to the present state of the law -- so I did
mention that, so that at least that is one thing I did put
25,
I
in, but it seemed to me I put it in as going to motivation
to show that he had tried to deal with it.
However, I
looked it up, and this is what takes the time, checking
I
\ i
back to go through a whole charge which may have taken an
\
I
hour to find the point i~ question or going throogb all the
1
evidence to find the bit of evidence that was referred to.
30'
?CSJ's,zca
L
75'01171
\
4024
I
Re-charge to the Jury (Parker, A.C.J.)
In referring to his objections, counsel submitted t:hat I
didn't refer to the evidence that the situation was
I
5i
deteriorating, that the evidence of Dr. Sacks supported
this, that Dr. Watters submitted a brief in support of a
change, that two womens' groups submitted briefs and that
this supports
Dr. Morgentaler's statement that he made on
the tape that the situation was an emergency and someone had
10
to act.
; That is the Defence.
Defence in his address to you, said:
roent wouldn't act.
no action.
15
Counsel for the
"He lobbied: Parlia-
Dr. Morgentaler lobbied, but there was
The obstacle was created by the law."
So
there are some different inferences than what I
stressed. "It was necessary
Ontario."
i
to bring this service to
But Counsel then said though, "the essential
issue is whether you agree or disagree with abortion."
I
20:
That might go to motivation.
In dealing with emergency I referred
to various witnesses who SUf·ported
25
their main thesis that
and here again I aro just using roy notes -- that delay
in securing abortions and the other things that go to
delay, increase the risk to a woman's health and life.
\
30
\
\
-----
--
--
4025
~
Re-charge to the Jury -- (Parker, A.C.J.)
In dealing with choice, I referred
s ·
to the lack of results from lobbyin9. In some cases, when I
don't mention a submission made by Counsel it is because I
don't agree with
the Defence.
t-hp
submission, whet!le for the Crown or !or
I didn't agree, obviously, with what Defence
Counsel said in his address to you, "the essential issue is
10
,.
whether you agree or disagree with abortion."
To me
that seems to go to motivation, to whether this was his
dominant reason for taking the action that he did.
However,
I don't want to have a new trial because I didn't fully put
15
ever~thing that he ~elies on to the jury, so I am going
to tell you what I think his position now is and amplify
the theory which more fully sets
I
out the theory of the
Defence.
I
20'
The theory of the Defence is that as
a result of the inaccessability of abortions and of the
delays in obtaining an abortion, women in Ontario who find
themselves unwillingly pregnant are unable to terminate their
pregnancy or are unable to terminate it within a reasonable
25
period of time and that the effect of such inaccessability and
delay is to pose a serious risk to the health and life of
the woman.
\
i
30[
\
A risk which the doctors -- and this is their
I
allegation
this is their theory -- were in good faith
I
I
I
L
responding to and attempting to alleviate it.
\
Then in
4026
Re-charge to the Jury-- (Parker, A.C.J.)
support of the proposition of inaccessability and delay the
Defence lead a good deal of evidence.
I went over some
5
of that yesterday and I will go over some more of it today.
I didn't think there was any great dispute
about that, that
there were delays resulting from the situation, and perhaps
I did not stress it much because I didn't think -- the
10
Crown hadn't called any evidence to contradict it.
Crown's po_sition is:
are delays.
T.he situation isn't perfect, there
but nevertheless it wasn't the type of
emergency that justified breaking the
15
Defence
The
le~
la~.,..
The
a good deal of evidence of the results of
such inaccessability and delays.
You heard from Dr.
Watters about the p3ychological impact of a refused abortion
and delay in obtaining one.
He said:
"Any delay in
obtaining the abortion procedure increases stress and the
201
stress of an unwanted fetus is further compounded by the
requirement that the woman obtain the approval of a
committee and the delay associated with that requirement."
The defence witnesses also stressed
25
the importance of early accessability and how this is the
most important determinant of risk.
The theory of the Defence is the delay
i
I
within the system requires women to have abortions which
i
are unnecessarily dangerous.
30'I
\I
37(6;76)
!
L
\
7540-1171
The theory of the Defence
40'27
Re-charge to the Jury -- (Parker, A.C.J.)
that many women who might well have received a first
trimester abortion after experiencing delay associated with
5
the committee system, cannot obtain the therapeutic
abortion until the 16th week when the risk of complications
are greater.
As a result, they must have a more complicated
type of abortion, a saline abortion, rather than the D &
10
c.
It is suggested that I read the evidence
to you.
That evidence took two weeks
I am not going to
re~read
to go·in , and
it all.
As long as I give you what I think to be the gist of the
evidence, I think it is satisfactory.
15 I
takes a good deal of time.
Even so,
that
To re-read to
you every bit of evidence just to show you one or two
sentences that refe~ to this, is not necessary and I do not
20'
intend to do it.
Dr. Grimes stressed the importance of
the operation bei:1g done early. Dr. Sacks aftd Dr. Roy
said the situation was deteriorating.
~!
Dr. Hodgson said
th~ system in r1innesota was better than thP system in
Ontario; that women from Ontario went to Minnesota because
they could not get an abortion in Ontario.
And then you
have the evidence of Mrs. Orton which went to showing
;
I
\!
30!
\ I
I
L_
that the statistics show that more women went than were
actually shown in the statistics and I commented about
that eeing hearsay evidence and I still think it is, but
....
4028
Re-charge to the Jury -- (Parker, A.C.J.)
nevertheless her other evidence justified what
saying,
sh~
was
that more women do go outside the province than
5
the statistics show.
You may recall in dealing with motivation
I used the phrase "abortion on demand".
I am putting this
objection in this spot because it does relate to the Defence
10
of Necessity and more particularly to motivation.
;
One of the objections of Counsel is that
in referring to what motivated the decision of Dr. Morgentaler
to open a clinic I used the phrase "abortion on demand" as
one of three possible motives or a reason for his actions.
15i
It was unintentionally that I used a phrase that is used
by pro-life.
Had I used a different phrase, pro-choice,
it probably could have been objected to
too, but ·to me, I· think
I am referring to the same thing.
20:
I
·:rn referring· to hi_s s.p.ee.ch on the .t~peL it
was objected to
that I yazd a phrase which is a pro-ch~ice phrase,
"abortion on demand,"but in his speech on the tape, Dr.
Mor~entaler
25
used the phrase "freedom of choice".
That may
indicate that that ·.1as his belief, that he had certain
I'
I
beliefs regarding that, and as a matter of fact, although
I
he complains, although there was complaint about the
I
~L
use of that belief, Mr. Manning said what is at stake is
not proving a criminal offence, what is at stake is whether
women"if they choose'~ay have an abortion.
\
4029
~
Re-charge to the Jury -- (Parker, A.C.J.)
He was referring to the same thing.
So
in that respect, regardless of which phrase I used,
5!
it is clear, I think, what I was referring to.
I said "If
the only reason for the conspiracy was to defy the law so that
women could have an abortion on demand, that was not an
action in res7onse to an emergency."
10
same thing it I said "by choice".
Dr. Morgentaler used those words.
It would mean the
I didn't say that
I it~~err·~d that th::'..:
was his belief, both from his words and from the wores
of his Counsel.
15
However, wherever
I used the phrase that
is being objected to, you can change it and substitute instead
.
'
of abortion on demand, "his beliefs". That is a more
neutral expression, and that is what I was referring to
when dealing with his motivation.
My statement of the law hasn't changed.
201
I
II
That is what I was giving to you, what I believe to be
the law.
I think the law is the same.
A person is not
entitled, if there is no emergency, to violate the
law because in his view the law conflicts with some
25;
higher social value.
I have told you and read to you
what the test of emergency was.
\
I
30i
any doubt about it, I will rephrase it another way for you to
\I
'
L
In case there is
\
4030
I
Re-charge to the Jury-- (Parker, A.C.J.)
I
consider when considering whether the Defence of
I
Necessity applies. You must ask yourselves whether at the time
51
of the formation of the agreement, that is whether at the
time of the planPning to set up a clinic, the doctors in
good faith considered the situation to be so emergent that
failure to agree would endanger the life or health of the
10
woman who se~ks to terminate her pregnancy but cannot obtain
an abortion or who cannot obtain one within a reasonable
amount of time.
In my charge, I think on one occasion, I
I
15!
referred to the risk of a woman's life and on that occasion
I
sho~ld
have said
"life and health."
In considering whether there was an
emergency it is sufficient if it is shown that the life or
health of a woman could be in danger •
20·
I
I
I
25
It applies in either situation.
i
I
I
However,
the risk to health must be real, it must be imminent.
every risk to
heal~h,
Not
of course, will constitute an emergency.
In deciding that degree you have to take into consideration
'I
the evidence as to risk.
You may recall there was some
30i
'\
l_
evidence as to the percentages.
compli~ations.
Two point four percent for
And th~t no deaths had occurred in the last
seven or eight years .
'I'he evidence of Dr. Grimes
is
....
40'31
~
Re-charge to the Jury-- (Parker, A.C.J.)
that the question of risk was insignificant in abortions.
I
5!
So that all goes to whether or not there was an emergency.
Also on this point, I made a reference to the inference
that you may draw from the fact that other doctors did not
feel that they had to respond to an emergency.
I was, I
think I said that there were thousands of doctors in
Canada that I!}ay go to whether or not the question of whether
10
or not there was an emergency.
However, on the other side
of the coin, as against this, you may consider that the three
doctors who are charged here and the theory of the Defence is
that these three doctors felt that there was this emergency.
15
I
There'is evidence about how Dr. Morgentaler felt.
It just occurred to me that relates to
the belief of the doctor.
20
own beliefs.
He can give you
I don't think we have any evidence as to the
beliefs of Dr. Scott or Dr. Smoling, it just occurred to me.
However, that is for you to say.
of evidence.
the,situation
25:
there
It is a question
On this point there·is evidence of
~,~ebec.
The doctors
practice in free-standing clinics despite the law,
although the policy there is that they will not be
prosecuted for performing abortions.
The point that Defence
makes on this though, is that if they operate in a manner
3~
that reduces the risk to a woman's life, it may be that
clinic~
should be permitted in Ontario to do so also.
4032
~
Re-charge to the Jury-- (Parker, A.C.J.l
51
I think we will take a break at this time.
It
is both for you and for me.
---Jury withdraws.
---Recess.
---Upon resuming at 11:55 a.m.
I
101
I
---Jury returned.
HIS LORDSHIP'S RE-CHARGE TO THE JURY
__
J.c~tinued)_(Ora..!l__:
next deal with another matter, you may
I
recall in giving the theory of the Defence I
15
said I had
referred to certain.evidence, but certainly not to all of it,
as to whether or not there was such a need that it amounted
to an emergency.
As I have
20
already said, there is lots of evidence to show delay
and I only referred to some of it.
The issue it seems to
me is whether that evidence justifies or could meet the
standard to become such an emergency that it brings in the
25
Defence of Necessity.
However, I will refer to bits and
pieces of the evidence that show that there was delay which
may go to show that there was an emergency.
I
Constable Kelman, I referred to his
I
\ :
301
evidence about finding documents and so on at the clinic
i
\
I
I
I
L
in reference to the conspiracy charge.
But from some of
\
those there are documents that you may consider in deciding
.Q7
cf
cl('
)§10.)
)]1
-
40'33
I
I
Re-charge to the Jury-- (Parker, A.C.J.)
whether they support the Defence position that there was
I
5!
delay, such as the very fact that people were seeking
abortions might indicate that there was a need for abortions.
Then there is the evidence of Dr.
Hodgson that the number
of patients from outside Minnesota, the people from Ontario
going to the State where she is practicing were increasing.
10
She said
s~e
had seen a 100 percent increase in patients
coming from Ontario.
Dr. Murray,
a Crown witness, admitted
that there is an increase of risk, of mortality and
15
complications associated with the delay of the procedure.
He said there is a delay after initial consultation and
there in inequality of access.
He admitted that such
consequences of the legislation are not good.
20'
\
think there is any dispute about that.
I don't
Marilyn
Buckham, I
think I reviewed her evidence yesterday, and I pointed out
that she referred to the procedures in Buffalo and said they
were better than in Ontario.
25
I don't think her evidence
is disputed, that the procedure they use is much faster.
If speed is the criterion, certainly a person can go L1
their place the same day,
and get an abortion.
I don't know
if they are walked out or carried out or what, but they are
\
out the same day.
30
\
Then the consent forms.
L
I think this
\
also goes to need.
If you accept that as being a fact.
I
.
4034
~
Re-charge to the Jury-- (Parker, A.C.J.)
II
think it would depend.
That is a question, that is evidence,
which you have to decide, whether you believe it or not.
i
5[
In every form printed ahead of time it says that they
could not obtain an abortion within the system.
The evidence of Constable Massey, I think
I have dealt with this before, she said that she was not
10
asked the re~son she wanted an abortion, but the evidence
is the ratd came before she had finished the form.
I am
just giving you the counter evidence.
Dr. Chasse said 20 percent of the patients
in Hull are from Ottawa.
151
That may be some indication that
the Ontario system cannot fill the demand.
Dr. Roy gave evidence about the system.
Well, his evidence in some respects was the same as Dr.
I
20
I
Chasse's explaining the system set up in Montreal, how
they have clinics down there which the government set up
to meet the demand.
Dr. Sachs
said the situation in
Toronto is deteriorating.
I think there was evidence that you should
25
consider in assessing her evidence, it seems to me that there
were statistics that the number of abortions among
teenagers in Toronto last year was less than this year.
may be wrong in this.
\
30
I
It is your interpretation of the
evidence that counts, but that might go to the extent that
\
L
it is
~eteriorating.
4035
I
Re-charge to the Jury-- (Parker, A.C.J.)
I did not refer to Mr. Fong because
I
his evidence, I think, related to the Defence of Conspiracy.
I
II
Si
He was called by the Crown and I thought it was going to
intent, the intent of Dr. Smoling that he intended to set up
I
a clinic which he knew to be illegal.
it does go to that.
10i
That may be so that
It was pointed out it might also go
You may recall Mr. Cooper
to another element besides that.
;
in dealing with emergency, one of his reasons was the time
element, because the time is important in deciding whether
there is an emergency.
15
I won't try to give you
examples at this stage.
The Crown's position was because
conspiracy took place over six months, it might indicate
~i
that it was no great emergency or it would have been dealt
with immediately.
It wasn't an imminent peril.
this was the Crown's position.
I think
Certainly the time a
person has known about it is a consideration.
If I have
known about some emergency that has been there for the past
25
ten years and haven't done anything about it until now,
it is a factor in
deciding whether or not it was an imminent
peril in life or health •
\
It
may go to that point and
so you are entitled to consider it.
So I should direct
30
\
your attention that it may also be used in that aspect of
L
the
c~e,
the fact that his evidence was that Dr. Smoling
-
-~----=~---o_,.
__ _
4D36
I
Re-charge to the Jury-- (Parker, A.C.J.)
Ii
was evicted.
I
clinic in the building where he had rented office space.
I
l
5'
They wouldn't let him carry on an abortion
So they had to buy premises over at 85 Harbord Street
!
and that was the reason for the six month delay.
You
weigh that evidence as you· do all the evidence in
reaching your conclusion on that point.
10
Further evidence on need or emergency
is the
e~idence
of Dr. Grimes and Dr. Watters.
I didn't
deal particularly with the evidence of Dr. Grimes, rightly
an
or wrongly, because I did say he was
expert, but I
thought he was giving us the overall, general picture about
15 .
the abortion situation.
do it.
That he is a man well qualified to
Dr. Grimes was, I thought, a well educated and highly
qualified witness.
He is a graduate of Harvard and he is
a specialist in obstetrics and gynaecology and he is with
1
20,
the Centre for Disease Control, a branch of the United States
government, which is an impartial organization in the sense
that they are interested in statistics
health
relating to
generally, all phases of health.
He says he does
25
perform abortions, both first and second trimesters.
facilities he works out of though, are hospitals.
some general principles may be important:
risk, expense and emotional turmoil.
\
30
is performed the safer it is.
\
I
I
I
'----
The
He said
delay increases
The earlier an abortion
Delays of any origin have the
same effect in that they may require different procedures,
\
4'037
I
Re-charge to the Jury-- (Parker, A.C.J.)
labour instead of curretage.
Then he explained the two
methods used for abortions. The most common is theD &
c
5
which is expanded by using the suction, and then the
other is induction by labour, of labour by drugs, and the
first is by far the safest method.
What he was doing was giving opinion as
10
an expert based on material that was available to him at the
Center and here again, I am just giving my opinion, but that
part of it, I don't think the Crown seriously disagrees
I
with.
The whole point was whether the risk that they are
I
15:
talking about is sufficient to justify an emergency which
excuses a person from breaking the law.
He said:
"Infection
after abortion leads to infertility, but the risk of this is
only one in ten thousand.
i
20:
Teenagers comprise about one-
third of abortions in the United States.
It is alleged
I
I
'
that the complication risks must be higher, but statistics
don't show this."
In his opinion, the risk of death was
lower in teenagers.
In cross-examination by Mr. Cooper he
25:
went into a discussion of the philosophy of abortion and he
agreed that he could be characterized as pro-choice.
doesn't detract from his evidence in any way.
\
~
That
A person
may have beliefs either way and still give accurate, honest,
0
~vidence in respect to a matter.
educated people take different
\
He agreed that many well
v~ews
than his.
It is not
4038
I
Re-charge to the Jury-- (Parker, A.C.J.)
I
i
confined to religious differences.
i
51
He agreed that in the
United States there are some shoddy clinics, that the
I
National Abortion Federation, and I may have the wrong
title, tries to discourage them.
Some doctors are involved
in shoddy clinics just as there are unscrupulous lawyers,
there are unscrupulous doctors.
10'
There are unscrupulous
persons in any profession or occupation.
He said in his opinion non-doctors can
be trained to do abortions.
That goes to the safety
element, that they are simple, and might also go to risk.
15!
He agreed if a procedure could be done in five minutes a
'
'
great number could be done in one day. That goes, I
suppose, to Mr. Cooper's questions about was it financially
profitable or not.
I may be dealing with that later, though.
He said the last menstrual period is
20:
the measuring standard.
Some of these points are of interest
and helpful in getting a general background on which you
might measure the other elements.
He said most clinics
do not have emergency services so generally they have
25
agreements with hospitals nearby where the doctor has
hospital privileges.
You might infer from that that that
may have some bearing on the risk statistics.
\
If the
emergencies from clinics are sent to hospitals, it is going
30:
\ I
to end up with the hospitals getting the statistics on their
I
L
\
----
-----
4039
I
Re-charge to the Jury-- (Parker, A.C.J.}
side as having the complications rather than the clinic.
However, this next statement would seem to answer that.
Most
5
perforations are innocuous but can be dangerous.
He felt
the staff were· more sympathetic in clinics. A lot of this
goes to why one system is better than the other.
He said he was not aware of the Canadian
10:
complications rate.
The national average seems to be 2.4
That was a very low rate as far as he was
concerned.
He thought the Canadian physicians were comparable
to the United States physicians.
15
Here is something -- it is
just a point in passing, but it refers back to something I
said -- he said he agrees that the labelling pro-life or
pro-choice is not helpful.
He pointed out that if you look
at the statistics abortions in Canada have gone up
20
dramatically since the law was changed in 1969.
I think the Crown was bringing out that
you should take an inference from that, take the system as
25
!
taking care of the increase that went on for a while.
But
you have to balance all of the evidence and take both sides
before you reach a decision.
He agreed that there are still
\
\
I
30
I
areas
in the United States that are not well served by physicians
and that happens, that can happen in the United States
L_
wher~
abortions are very liberal.
The trend is for doctors
4040
~
Ii
Re-charge to the Jury-- (Parker, A.C.J.)
I
to move to those areas where demand justifies it.
That may
relate to what I said was an economic consideration.
He was
5
referred to the death rate in Canada.
No deaths from legal
abortions were reported in '75, '76, and so on.
been any.
I
That hasn't
He agreed that was a good rate and the rate
really was insignificant.
10:
\
Once again I am not going to review the
evidence ef every witness in detail, because I think you can
take it that generally they did agree, they did support the
evidence of Dr. Morgentaler as to delay which might lead
15:
\
to emergency.
!
~ have already told you Dr.
Sacks said:
"I believe psychological problems caused -- may or may not
by delay might include suicidal tendencies, loss of weig~t,
and stress as a result of delay in obtaining the procedure,
20.
li
particularly in teenagers."
Dr. Watters said that while he knows of
no study in Canada that he is familiar with, studies in
~:
other jurisdictions would show that women do suffer
psychological stress as a result of being refused an abortion.
There is a good example of the kind of error judges make.
Dealing with the Badgley Report I said there was 18 weeks
'Jo':
delay from the time of the application to the operation.
I said that, it should have been eight weeks.
\
•G 87 (6;76)
I
L-
read my own notes.
\
7540·1171
If
I just mis-
That was the report, you will recall, that
4'041
~
Re-charge to the Jury -- (Parker, A.C.J.)
gave the s!t.ua'tion.
I won't pretend to be accurate as to
I
I
5~
the year, my guess is '73 or '74.
I
Dr. Watters' evidence
was the situation i~ Canada had not ch~nged since then.
wasn't good then and it is still not good now.
had a double-edged, two sides to the coin.
It
But that too,
The fact that
the situation has been the same since 1973 might go to
10,
whether it is an urgent situation.
Consider all the inferences, not just
the inferences the Crown wants you to draw or the Defence,
or that I refer to.
15
You are entitled to any reasonable
inference from the evidence so long as it is based on the
evidence.
The evidence of Dr. Watters I think I
repeated.
20
He is the one that said in their hospital
therapeutic abortion is just a rubber stamp. But having
said that, he gave opinion evidencP.
I don't know what
evidence he had to support it) that other hospitals
weren't as good as McMaster Hospital in Hamilton because
they weren't as liberal in their interpretation of what
25
endangered a woman's life and health.
On that point he
is saying the system that prevailed at McMaster didn't
prevail in other hospitals.
\
On the point of emergency, I think I
'
I
301
\
I
have already referred to it, but if I haven't, I will
L
again~
i
that in some hospitals in Canada general anesthetic
4042
Re-charge to the Jury-- (Parker, A.C.J.)
is used in first trimester abortions when it is not needed.
In free-standing clinics, there they use a local anesthetic
5
which is safer.
That may be because hospitals require that
certain operations have general anesthetics and that is the
decision of the Hospital Board and the doctor performing
the abortion may think the local anesthetic is better, but
10
if he wants to operate in that hospital, he has to go by
i
the rulep of the hospital and use the anesthetic.
I don't think there is much argument
about an anesthetic increasing the risks in various
151
operations, not just abortions.
I think it is common
knowledge people do have to be careful.
about the anesthetic.
They may suffer after effects from it, or danger even, if
the doctor is negligent and it could result in death.
What, in effect, the Defence is saying,
20
is this evidence may go to show an increased risk factor
by reason of the procedure being done in a hospital.
In my charge I made reference to a
letter from Mr. Grossman in which he said that the
25.I
I
government had no intention of approving free-standing
clinics at the present time.
not be that important.
However, you may recall I told you
that it is your view of the evidence that counts and if my
I
\30.
views of the evidence or my opinion as to the evidence are
\
=>.GB/!6{76)
I said that this letter may
I
L
inconsistent with yours, then you disregard mine and take
7540·1171
\
40'43
I
Re-charge to the Jury--
(Parker, A.C.J.)
I
your own.
I
abundance of evidence that the government had no intention
I
5:
I
I may have been thinking that there was an
of changing its mind and granting approval to Dr. Morgentaler
but this letter may be important in considering the second
test, the test of whether the accused had any legal
alternative and this letter may
10
be considered by you
in assessing whether there was a legal alternative in view
of Mr. Gro?sman's intentions as stated in the letter.
that only goes to the second test.
But
You have got to first
decide whether the emergency was of the type required.
15
Furthermore, you may recall the evidence
from Mr. Timble whieh indicated his position regarding
the fact there was no need for free-standing clinics.
You should contrast this with the Defence evidence as to the
number of women going to outside hospitals and look at the
20!
situation in Quebec and the United States and compare and
see which is a better system.
It probably goes to the
issues when you are considering the effect of lobbying.
Whether lobbying is of no avail.
25
Lobbying is a way of life.
You know that from common knowledge because it is in the
news all the time, about people lobbying.
By coincidence
we have got the police the other day, lobbying to change
,\
the law of Capital Punishment.
That has little relevance,
30,
I
but it merely shows that it is a system that is available.
\ l
I
L_
Whether it is a very good one or not, I don't know.
\
87 (6;76)
7~40-1171
Some
4'044
Re-charge to the Jury-- (Parker, A.C.J.)
lobbying is pretty slow.
Look how long it took to change
but they
the divorce laws in the whole of Canada ,
5'
were eventually changed.
change.
It was a means of bringing about
Even t~ough it takes a long time.
I point out that the Crown referred, and
I am just giving the position of the Crown, that a few
10
alternatives were available, and I think I mentioned them
before, ~he alternative one doctor took, she sent patients
to Buffalo.
That is not just that particular doctor's
alternative.
It was, I think; what is sometimes done by
social agencies in Toronto.
15i
I think there was evidence
when- they couldn't-get any ·luck on the lottery, say on the
telephone lottery, to avoid delay they would send the
patient over to Buffalo.
The Crown suggested that they could
20
continue to lobby that that was legal.
alternative.
It was a legal
But balance against that the effect of lobbying
and how long it takes, whether that is any answer, if there
is a pressing need, an emergency.
And then there is also
25,
a choice. The doctor could say when asked to do an
abortion that was legal, "No, I won't do it."
a choice?
Did he have
Gould he have said no, I won't do it.
If you
I
I
can't get it in one hospital, go try another one.
'Jol
merely giving you the submisstons of Cro~, maybe not too
\
L
G 87 (6;76)
I am
accurately, but that is my idea.
7540-1171
\
4045
Re-charge to the Jury -- (Parker, A.C.J.)
In dealing with motivation I referred to
belief, and here again we are back to some of the evidence
that I referred to before, but here is another rephrased
5
test which may be of assistance.
First you must consider
whether the doctor sincerely held this belief.
In other
words, did they really agree to set up the clinic in order
10
to prevent the threat to the health and life of women?
And not merely to challenge the law, either because of
their beliefs which they were in favour of, or for financial
gain?
If you find that the protection of the health of
women was the dominant object of the doctors' agreement
15,
'
then you must consider how serious was the threat to the
health of women.
You should consider all of the evidence
including the statistics and the evidence about risk.
If
you find that a situation of clear and immediate peril
20'
existed such that the doctors were compelled to respond
to it so that their action was involuntary, then your
answer to the second question should be yes.
Then a little point on the financial
25:
issue, whether it was for gain.
During my charge I
referred to the suggestion by the Crown in cross-examination
of Dr. Morgentaler that one of the possible motivations for
opening the free-standing clinic was for financial gain.
\
i
\
I didn't mention the evidence at that time put forward by
30,
I
the ~efence which is the opposite side which you should
I
L
consider, that there is evidence by Dr. Morgentaler that
4046
Re-charge to the Jury-- (Parker, A.C.J.)
the clinic was not a good proposition.
that is so in Toronto.
We certainly know
There is evidence that they
5
bought the clinic and spent a great deal of money and then
it was closed down before they could get any profit out
of it.
That the clinic was not a good proposition but in
fact was very costly.
I
10:
He said that if all he was interested
in was money, he would have stayed in Montreal.
I point
;
out there-was no direct evidence by the Crown that any
profit was made.
So once again you have to balance that.
There is also evidence that he offered the clinic as a
Pilot Project to the Ontario government.
15.
Would he do this
if he'were interested only in gain or if gain was his main
or the dominant reason for doing this?
There was also
I
i
i
w
I
I
evidence that if a patient could not pay they were given a
reduced rate.
Now I am going to deal with the last
test:
proportionality and maybe you have already inferred
or assumed what my views were on this, but they really
I
25!
don't matter.
It is your views that you are concerned with.
I don't think this is the main issue.
I think the main
issues are the first two that you have to decide yes or no
on, but this is one you still have to deal with.
I
\i
one of the issues.
This is the third test.
It is
You must assess
30·
I
\
whether the harm inflicted by breaking the law is less
than the harm sought to be avoided. What is the harm
\
87(6!761
75401171
4047
I
Re-charge to the Jury-- ( Parker, A.D.J.)
I
I
I
inflicted?
I
that the accused did conspire to procure a miscarriage in
I
I
I
The harm inflicted, according to the Crown, is
5'
a free-standing clinic.
In other words the harm sought
to be avoided is breaking the law.
te periorm an
~bortion
Then the other half, is it
outside a hospital?
The only
evidence on this point is that called by the Defence.
10
Once
again on this point I don't think I need to read all the
evidence.
I have given you the gist of the evidence so far,
that clinics are safe, safer than in hospitals.
That
clinics have been established by the government in Quebec
which are safe and that the system in Quebec, the doctors
151
in Quebec are better than the doctors in Ontario.
I think
that is the gist of the evidence of Dr. Roy and he was
speaking, of course, only in relation to the technique in
performing abortions, and I don't think there is an contradic-
20
tion of that evidence because in Quebec the doctors have
the experience and the training and the knowledge of how to
do them.
The same techniques are not used in
Ontario, because in Ontario they must be performed in a
25
hospital.
You must go through the therapeutic abortion
committee and so on.
Also, clinics use local anesthetics
on first trimester operations while some hospitals use
general anesthetics.
There is evidence about therapeutic
\30
abortion committees. Dr. Watters said they are medically
I
\
I
L
contraindicated. Dr.
\
G 87 (6:76)
7540·1171
Sacks said there is no need for
G 87 (6
4048
I
Re-charge to the Jury--
I
I
I
I
them.
I
Dr. Grimes said they posed an additional obstacle
which increased delay.
5'
(Parker, A.C.J.)
I am saying that instead of me
re-reading to you all the evidence of those witnesses.
Finally, what ia the har.m that was sought to be avoided?
The harm which is sought to be avoided is that which is
caused as a result of the inaccessability of abortions
10
or the
dela~
in obtaining them.
The theory of the Defence
is that by setting up free-standing clinics the doctors
were alleviating the harm and delays caused by the system,
as a result of having to obtain abortions in a hospital,
15
with the approval of a committee.
evidence.
I won't repeat the
The same evidence applies to that.
In dealing with this test yesterday,
I referred to Dr. Hodgson's evidence to the effect that
20
despite the existence of free-standing clinics in the
United States the problem of accessability in some areas
still remains.
Against this you consider the evidence
of Dr. Roy who said in Quebec at least the advent of free25
standing clinics has
improved the situation and Dr. Sacks,
of course, said it was in Ontario that the situation was
deteriorating.
Here is one bit of evidence that I didn't
refer to, but as I said, I don't have to refer to all the
\
.
evidence, only to what I believe is relevant.
30:
\
i
I
L
tb
Dr. Morgentaler
in his taped speech indicated after he set up the clinic in
t:>4U·lll1
\
4d49
rRe-charge to the Jury -- (Parker, A.C.J.)
Ontario he would proceed to establish new centres all over
I
Canada. That may be relevant as to his beliefs and his
5'I
I
motivations.
Now one of my final points (you will be glad
to hear) I want to refer to one of the Crown's submissions
and he was speaking in relation to this third test of
proportionality.
I did refer to it yesterday and I
10
thought I covered this, but I may once again express it in
a different way so that you understand what the Crown's
position was and the Defence position.
Once I explain it
I think you will really see there is no great conflict
15
between anything as to the law. The Crown submits that
one factor to consider in balancing the harm that results
from breaking the law against the harm that was sought to
be avoided, is that anarchy could result if the accused who
20
breaks the law is not punished.
However, it should be
remembered that the accused cannot take advantage of the Defence
of Necessity if they were merely breaking the law because they
felt that it was unjust.
In other words, because of their
personal beliefs or because they wanted to advance the cause
25'
(I have to be careful which phrase I use or I will have
one side or the other jumping on me) of beliefs they may
have about abortion.
\
30:
\
Put it that way.
Thus, if you were
considering this test, because you have already determined
(1} that there was an emergency of the type described and
I
I
i
L_
that the accused were responding to an emergency; if you are
4050
~
Re-charge to the Jury-- (Parker, A.C.J.)
I
considering this you are only doing it in relation to the
last test of proportionality, and the accused were
5
responding to an emergency, and if they could not reasonably
!
be expected to resist breaking the law, by definition a
situation of necessity is not a situation of anarchy.
Anarchy means people disregarding the law without legitimate
10
excuse.
The Defence of Necessity implies that people
disregar~
the law, but with a legitimate excuse.
is that they couldn't resist it.
act.
The excuse
It wasn't a voluntary
Therefore, if you find that there was the type of
emergency required and if you find that the accused indeed
15:
respQnded to this emergency, you need not consider the
possibility of anarchy.
In fairness, I think I pointed out
to you that Mr. Cooper was dealing at that time with the
20 ~
remarks that Dr. Morgentaler made that suggested that you
should ignore the law.
In any event, I have repeated it.
I hope I have cleared up any misunderstanding, if there
was any, about anarchy, about those remarks.
Then on this issue of motivation, I may
25
be jumping around a bit.
I ask you to excuse that, but
I didn't get the objections in any nice, little packages
\30
\
G 87 (6!76)
i
I
I
L
7540·1171
\
4051
I
Re-charge to the Jury-- (Parker, A.C.J.}
I
I
I
I
relating to each subject.
I
They came in from all over the
I
lot. That is what I am answering.
i
Some of them were as
5
I repeat the test.
to whether there was a legal way out.
Was there
a
reasonable, legal alternative?
You should consider the evidence in relation to this and
in deciding whether there was a legal alternative, the
10·
evidence of Dr. Morgentaler was that he has lobbied
over the past ten years to no avail.
And this goes to his
belief, he had three jury acquittals, and although the
law has not changed throughout the whole of Canada, he is
not being prosecuted in Quebec.
15,
'
II
Xou have the evidence of the Badgley
report.
you wish.
~~
I don't know that you need to read it.
It is an exhibit.
You can if
It was referred to by
Dr. Watters and by Counsel which indicates that that
committee at the time that report was made felt that the
system was not working or that the law itself presented
some built-in delay which could be a risk to the health and
life of the woman seeking an abortion.
25.
I have put the theory of the Defence to
you and I have repeated the law and I think I have referred
to most of the evidence from which you might draw inferences
in deciding whether the law applies.
In other words, you
3o:
\
:; 87 (6!76)
I
first find your facts and then apply the law.
L_
have put the theory of the Defence to you.
\
7540·1171
I think I
I did skip over
L
4052
I
Re-charge to the Jury-- (Parker, A.C.J.)
I
Conspiracy, but the Crown's position as to Conspiracy is
i
that the accused agreed to open an abortion clinic in
1
5
Toronto, that theymew was against the law.
deal with both branches of the element.
You will
Either an illegal
act or a legal act that was done illegally and that they
did open the clinic and performed abortions.
Crown's
10,
position
in~ofar
as the Defence of Necessity is concerned
is that tnere was no emergency of the type required by law
to excuse a criminal offence.
The Crown's position is,
looking at the situation in Canada, would any reasonable
!
15'
man believe that there was such an emergency that he
acted involuntarily so that he couldn't help himself.
The
Crown says the Defence fails on all these tests because
the accused cannot get over the first hurdle.
20
I will take
another run at that. The Crown says the Defence fails on
all three tests, but I would think mainly because the
accused
cannot even get over the first hurdle that there was
an emergency.
Now, I am just going to repeat the closing
~.
instructions.
Has the Crown satisfied you beyond a reasonable
doubt of the truth of the charge?
And the ingredients of
conspiracy is what the Crown is proving, that there was an
\ 30
\
AG 87 (6176!
agreement to do an unlawful act or a lawful act by illegal
\
means.
L_
other~ to participate in a conspiracy.
7540·1171
That each accused agreed with one or more of the
If your answer is
40'53
I
Re-charge to the Jury-- (Parker, A.C.J.)
I
II
yes, then you must go on to consider the Defence of
\
The onus
Necessity.
5\
I
If the Crown
is on the Crown to prove those two things.
has satisfied you beyond a reasonable doubt as to each el~Ment
of what it alleges, then you must go on to consider the
Defence of Necessity raised by the accused.
10
i
If the Crown
has not satisfied you as to each of those elements then
I
you just ~ind the accused not guilty.
But if the Crown
has satisfied you then you go on to deal with the Defence
of Necessity.
I
I have explained when that Defence will
15
If your answer
apply, and the tests. that you must apply.
is no
to any of the three tests, the Defence fails.
If your answer is yes to all the tests, the Defence
i
20
I
succeeds and you must acquit the accused.
Consider all the evidence honestly,
fairly
and dispassionately before you
reach your verdict.
Remember that you are the sole judges of the facts and
as to the consequences that flow from them.
Disregard my
25
factual comments or expressed or apparent views upon any
of the issues if you don't agree with them.
Do not give
effect to any errors I have made in my reference to
evidence.
!
'3o:,
I should remind you of the onus of proof
' IL_
I
and I read the whole big paragraph from the judgment that
\
G 87 (6;76)
You go by what you believe the evidence to be.
7540·1171
-
~---
-----
4as4
Re-charge to the Jury-- (Parker, A.C.J.)
I
I
the onus remains on the Crown throughout, but in dealing
with the Defence, the Defence has to put in some
evidence to
5
raise the Defence of Necessity ,
but then
you decide those Defence issues on the balance of
probability and switch back to
the burden of proof that
remains on the Crown throughout to satisfy you.
10
When I
say this, I am referring to the carefully worded definition
,
that I gave you in my Charge.
You can return any of the following
verdicts:
not guilty, or guilty as
charg~d.
deal with each accused individually.
You must
You must be
15;
I
unanimous as to any verdict which you return to the court,
but you have the right to disagree, although to do so would
put both the accused and your community to a great deal of
cost.
20
You are not concerned with the consequences
of your verdict.
That is the judge's responsibility.
When you retire, if you haven't already done so, you should
select a foreman, and I suspect you have done so.
25
He will
preside over your deliberations and will have the authority
to express your verdict.
You must speak from here on in only
to the Constable in charge of you.
anyone else.
l
You
You must not speak to
have a solemn duty to perform.
A duty
~·
to your community, and to the accused.
\
oath to try this charge without fear or favour upon the
L
\
87 (6t76)
7540-1171
You have taken an
40'55
I
Re-charge to the Jury-- (Parker, A.C.J.)
I
i
I
I
evidence and to render a true verdict.
I
I
If you
hon~ur
that oath you will have performed your duty.
5'
I
The Constables have already been sworn.
You may retire to consider your verdict.
---Jury retires.
HIS LORDSHIP:
It is one o'clock.
I
10
think the same
procedure that applies to the jury can
,
apply to
~he
balance of the court.
We will adjourn
for lunch.
---Court adjourned to 2:15 o'clock p.m.
I
151
'
---Upon ,resuming at 2:l5 o'clock, p.m.
MR. MANNING:
It is my intention, my lord, to
put a number of objections to your lordship's recharge on the
i
\ record.
20 ,
It is my respectful submission to you that having
regard to both the charge and recharge the case for the
\ Defence has not been put to the jury and the matter has been
!I put to the jury in such a way as to make it irreparable and no
I
further good to the Defence would be served by yet another,
\or a further recharge.
Your lordship, in my respectful submission has
25 failed to review the substantial part of the evidence for the
. Defence and to summarize those in such a way as to relate
them to the case for the Defence and the law applicable.
That the recharge did not correct the errors
I submitted your first charge contained and indeed in some
)o instances with respect, my lord, your lordship compounded some
, of those same errors in your recharge.
\ !
In my respectful submission it belittled the
G 87 (6;76)
~efence,,the
7540·1171
case for the Defence, and indeed made it appear
4056
Objections -- Mr. Manning.
to the jury that Defence Counsel was asking for something
that was unreasonable in the recharge.
Your lordship, I respectfully submit, did nothing
6
to remove the air of partiality that existed in your first charge
to the jury and by some of your lordship 1 s comments, belittled
even some of the Defence witnesses and put your lordship in
the position referred to in the Cavanagh and Donaldson
case
which I previously quoted.
Your lordship put both parts of the elements
10
of conspiracy ~o the jury and left both to them so that one
will never
k~ow
if there is a conviction upon which branch
of the law of conspiracy they will return a verdict.
In my respectful submission, it was incumbent
upon your lordship to review the evidence, to ascertain whether
1sl the Crown had established either. In other words, was it an
unlawful act that was ~he object of the conspiracy, or was it
a lawful act by unlawful means.
Your lordship, I submit, ought to have reviewed
the law in relation to the facts in the Crown•s case, because
it is the ease for the Defence and I say case, my lord, and
201
do not use the word theory.
In Cavanagh and Donaldson the
Ontario Court of Appeal deprecated the use of the word theory
and stated that the Defence does not put a theory to the
jury, it is the case for the Defence.
HIS LORDSHIP:
I am aware of that. Higher
~I authority says otherwise.
MR. MANNING: Thank you, my lord.
The statement by your lordship that it was
for the accused to raise a reasonable doubt, that they came
within the exemption, notwithstanding your lordship 1 s direction
with respect to the burden of proof being on the Crown, when
~I
coupled with your statement that it is up to the accused to
\I prove the exemption on the balance of probabilities, was a
\
• 7 (6/76)
7540·1171
4057
Objections -- Mr. Manning.
breach, I submit, of Section 11 (d)
of the Charter presumption
of innocence provision and the burden of proof being completely
51
on the Crown, the Defence does not have to raise a reasonable
doubt, with respect.
Indeed, your lordship left the jury in my
respectful submission with the impression that if the Defence
of Necessity was rejected by them, or as your lordship put it,
often times if it failed, then the jury might be left with
10 1
the impression that they were entitled to convict, which I
submit, is not khe case, is not the law.
That even if the jury
reject the Defence of Necessity in my respectful submission
they are entitled to acquit and that was never put to them.
While your lordship repeated the test of the
151
Defence of Necessity, your lordship made it quite clear to the
jury, that you were reading from a judgment of the Supreme
Court
o~
Canada.
Link€d to what your lordship said the other
day in your charge, the jury may well feel that this is a
direction, not from your lordship, and your interpretation of
the law, but from the highest court in the land in a judgment
~~
read to them and might give undo weight to it.
HIS LORDSHIP:
MR. MANNING:
It's true.
But, my lord, in my respectful
submission, it should not have been done.
Additionally, your
lordship in dealing with clear and imminent peril, again
failed to review the evidence of the Defence, that every case
25
of an unwanted pregnancy creates that type of situation and
it is not the peril felt by the accused because the situation
is one where the accused are, on the case for the Defence,
corning to assist others.
In your lordship's examination and your
~I
\
reference to the law of necessity, you dwelt, I submit, on a
case that was not this case, that is the case of necessitous
circumstances, qua the individuals themselves.
\
87 (6/76)
7540·1171
I submit that
-
-
----------..o==~
-
-----
4058
Objections -- Mr. Manning.
your lordship never put the evidence for the Defence and how
it works or interacts with the law that you put to t 11em so that
they could truly judge whether there was the defence or not.
5
Your lordship's statement with respect to
lobbying, again with the Police Chiefs lobbying for the death
penalty, I submit is another example similar to those used in
your charge, where the example is put not based on anything in
the evidence and was done in a way which assists the Crown
10
,
and does not put the case for the Defence.
Your lordship stated, and I submit erroneously,
someone said that the essential issues are whether you agree
or disagree with the issue of abortion.
HIS LORDSHIP:
I took that from my notes with
what you said.
MR. MANNING:
151
I submit, I don't recall saying
that in those terms; your lordship
may have the note, but I
don't recall saying that in those terms and not, certainly,
in the context in which your lordship put it to the jury.
HIS LORDSHIP:
I saw that just today, but I agree
it is my notes and I don't take shorthand and it is what I
201
thought was said, but the only way to find out is to check
with the reporter, but, however, it is on the record and that
is the main point.
MR. MANNING:
Thank you, my lord.
Your lordship said to the jury, it is suggested
~1
I read the evidence to you.
I am not going to do that.
It
would take time to read it.
With respect, it was never my submission, and
your lordship made it abundantly clear that these objections
were mine.
It was never my submission to you, nor suggestion
~·
to you, that you read all the evidence of all the witnesses.
The law requires, in my respectful submission, that your
\
lordship review the evidence, all the evidence that is favour-
G 87 (6/76)
\
7540-1171
4059
bjections -- Mr. Manning.
able to the accused, to the case for the Defence, be it found
in the evidence of the Crown or in the evidence called by
the Defence.
Such a comment, in my respectful submission had
5 1 the effect of blaming Defence Counsel for this long delay
between charge and recharge, notwithstanding, notwithstanding
what your lordship said at the outset to the jury, about how
normal it was.
In my respectful submission your lordship did
not clarify the situation with respect to abortion on demand
01
1
and the concept of language that your lordship put to the jury
was not my point.
Your lordship, I submit, breached Section 4
(5) of the Canada Evidence Act by commenting on the failure
of Dr. Smoling and Dr. Scott to give evidence.
Indeed,. it was done on the issue of the beliefs
15 I
of the doctors raised by Mr. Cooper in cross-examination
matter which is, I submit, one which, could go not merely to
their opinions or
bel~efs
on the subject matter of abortion,
but which could go to whether they reasonably believed that
there was an emergency and there is also evidence in the
affidavit of Dr. Smoling which your lordship did not refer to,
~I
his position with respect to the necessity of bringing a clinic
to this Province.
Your lordship in reviewing the evidence of
Mr. Fong said that the Crown's evidence was that he was a
Crown witness, and he was brought in to deal with the intent
of Dr. Smoling, which he knew to be illegal, intention to
~I open an abortion clinic, which he knew to be illegal.
I
submit that that is not the evidence as it relates to Mr. Fong
but notwithstanding that, your lordship then went on and again.
giving part of what the Defence evidence was with an immediate
rebuttal by parading, going through the Crown evidence and
~I
\
giving an example, that if one knew of an emergency for ten
years, that is just a factor to consider without anything
more, thus making it appear that this block of time of six
\
8 7 (6/76)
7540·1171
...
4060
Objections -- Mr. Manning.
months
or up to ten years, for which there is no evidence,
could be used by the jury to reject the Defence.
HIS LORDSHIP:
sl
So often you said "of which there
is no evidence".
You seem to think that the only evidence is
direct evidence.
I have told the jury several times that
they can consider circumstantial evidence, that they can
infer one fact from another.
That is normal and proper.
However, I am not going to get into that -MR. MANNING: But your lordship has given them
10
a number of speculative situations with respect, and in effect,
mustered a very good case, in my respectful submission, for
the Crown, while attempting to give them or giving them the
case for the Defence.
Again,in reviewing the evidence of Dr. Grimes
151 your lordship talked about a procedure being a simple
procedure, the risk minimal, it was a five minute procedure,
which goes to risk and safety and then your lordship added,
which may go to Mr. Cooper's question whether there was
financial profitability and that I submit, my lord, is a
mustering of the case for the Crown while giving the case for
~I
the Defence and what
was
omitted there was the facts that
I have made my submissions on earlier, with respect to your
lordship's original charge -- that merely because the procedure
is a five minute procedure, or a ten minute procedure, or
carries a low risk factor if done at a certain point in time,
~1
does not mean there isn't a high risk factor if done at a
later point in time.
And then your lordship stated that most -in reviewing the evidence of Dr. Grimes, in giving the jury
the case for the Defence -- you refer to his evidence that most
\
clinics don't have emergency service and you asked the jury
~ or you suggested to the jury that they might infer from that
\
that might have some bearing on risks, that the hospital gets
\
4061
Objections -- Mr. Manning.
the statistics on their side rather than the clinics.
is another inference that can be drawn from
51
There
that, with
respect, which was in favour of the Defence, which was not
put, that is that they don't need emergency services because
they are so safe.
But this looks, in my respectful submission,
like an attempt by your lordship to shore up a weakness in the
complication rate in Statistics Canada used by Mr. Cooper,
because, as the evidence has shown, complication rate is
101 defined as those risks, cases, that end up in the hospital,
,
and Dr.
Hodgson said that is a silly way to analyze that
-
because there are all kinds of other risk factors which when
added to the situation would increase the risk numbers which
makes the statistics suspect.
And your lordship has assisted the Crown case
15
1
with respect to that point in dealing with the case for the
Defence:
Your lordship, with respect, never put to the
jury the law of necessity as it related to the Defence of
Others, which is the focal issue of the case.
20
Your lordship
in giving the jury the law with respect to the Defence of
Necessity, never defined what the voluntary act was, never
defined the word voluntary, so that the jury might well think
voluntary is merely acting when indeed, the Supreme Court of
Canada used the term in a very narrow sense.
~1
Moral involuntariness was one sense.
There
were two, normative and moral involuntariness and merely put
on the basis that your lordship
put it to the jury, in my
respectful submission, the jury might well think that all you
have to do is decide to act and that was enough.
'~I
And that, I submit, is not what the Supreme
Court of Canada decision was all about.
Your lordship, I submit, also erred in failing
to address all of those matters that I objected to previously
\
4062
Objections -- Mr. Manning.
and most particularly the right of the jury to return a verdict
of acquittal, notwithstanding the law, and notwithstanding the
51
evidence.
MR. COOPER:
My lord, it seems to me that
I referred to Mr. Manning yesterday as nitpicking but it seems
to me, trying to be fair, what he is trying to do is -- have you
give a charge that is partial to the Defence and not impartial
to the Crown and the Defence and I sat here and listened to your
10
1
extensive
reci~ation
wanted you
~o
of points of evidence which Mr. Manning
put forth and I listened to the several examples
given and thought that this was being over fair.
In fact,
possibly prejudicial to my case in the interest of fairness to
the Defence and I am very surprised to hear Mr. Manning say
151
what he just has.
In f~ct, I thought throughout you bent over
backwards to be fair to both sides. The aspect of raising
reasonable doubt puts my case on the exemption provisions
harder for the Crown than it ought to be made.
it was on a balance pf probabilities.
~1
I thought
But I am not going to
ask you to recharge the jury.
HIS LORDSHIP:
I read, I read the very clear
quote that dealt specifically with that, and then when I was
giving it orally later, because my charge was not written out,
it was picked from spots -- you are giving a good part of it,
~I
you are making it up as you go along to deal with the points -and I tried to say to the jury, I am just giving you this now,
but what I am referring to is in the exact terms as I read
to you.
MR. COOPER:
,
~~
\
Well, I find it hard to imagine
Mr. Manning, why he, since there is an onus on the Defence,
you have ruled that already, why he is arguing with what is a
lesser burden on the accused than you mentioned.
easier
f~r
It is
the accused to raise a reasonable doubt than it is
4063
Objections -- Mr. Cooper.
to establish the onus on a balance of probabilities, even
though it prejudices the Crown, I am not going to ask that it
51 be recharged.
HIS LORDSHIP: It may -- might be an error -- but
in view of my explanation, I won't recharge them on that.
MR. COOPER: At the very end you spoke, I thought
you were talking about Defence of Necessity and you said there
101
was an onus on the accused on the balance of probabilities
which, if you ;aid that, I must disagrr with.
is a burden of adducing evidence.
I think there
HIS LORDSHIP: You are right. You are right. I
thought that was the point Mr. Manning was talking about. If
I said that, that was incorrect, but that is why I gave them
151 the other one, so ther~ could be no doubt what I was referring
to.
~~
MR. COOPER:
If you said that, I think it places
too high an onus on the accused.
I submit there is only the
burden of producing evidence and it is on the Crown to rebut
that beyond a reasonable doubt.
HIS LORDSHIP:
I agree.
MR. COOPER: The failure of the accused to give
evidence, you said, there was no statement, no evidence of the
beliefs of Dr. Scott and Dr. Smoling, as there wasn't. You
didn't comment on those accused not testifying.
~I
~I
Indeed, if
you remember the opening address of Mr. Manning, he pointed
out to the jury there is no onus on the Defence to call evidence,
although he was going to do so. So that if there was an error
which I submit there was not, since Mr. Manning mentioned it
himself, there is absolutely no harm whatsoever.
I submit
that you need not call the jury on that point. I am looking
Mr. Manning mentioned a particular section of the Canada
Evidence Act, sub-section (5) of Section 4, under the Martin's
\
Criminal
Code, the case of McConnell and Beer v. The Queen
40'64
Objections -- Mr. Cooper.
1968, 4 CCC, 257, decision of the Supreme Court of Canada,
I will just read the caption, where it was held that the:
Trial Judge's re-charge, explaining to the jury, that when he
51
charged them earlier that they did not have to accept exculpatory statements of the accused, they were not to think there
was any onus of the accused by proving their innocence by
going into the witness box and testifying and that the jury
was not to be influenced by failure to testify, so that if
10
!
the Supreme Court of Canada says that is not a violation, I
don't see how wpat you said could violate the sub-section.
~IS LORDSHIP:
I have referred to different
onuses throughout and one is a decision of a reasonable man,
the other is the beliefs of the accused, I thought I used,
I think the words mean what they say.
15
MR. COOPER:
Those are my submissions.
HIS LORDSijiP: The Court will rise and await the
verdict of the jury.
---Court rises.
---Upon resuming at 2:50 o'clock, p.m.
20
HIS LORDSHIP: This jury wastes no time in
getting to work. Memo:
"We request the following confirmation,
if possible, (1)
the latest interpretation of the Defence of
Necessity (green paper you read from this morning); (2) Canadian
Charter of Rights and Freedoms section referred to in the
affidavits by Dr. Morgentaler and Dr. Smoling, Exhibit 43,
~I
copy of the Criminal Code which deals with Section 251 and
one which addresses conspiracy."
Any submissions on these various points?
Dealing just one at a time, the first is, latest interpetation
of the Defence of Necessity.
30
MR. MANNING:
want the judgment?
\
87 (6/76)
HIS LORDSHIP:
ave is
7540-1171
a~y
I am not sure what it means, do they
They can't have it. What they can
part, if they want information on, they can have
40'65
Voir Dire.
the Reporter read back, if they want it, that is my
interpretation, unless you two disagree?
5
MR. MANNING:
I would, my lord, ask them for
clarification as to what they want as to the latest interpretation of the Green Paper.
In other words, whether they
actually want
HIS LORDSHIP:
I just happened to be using this
copy with -101
MR. MANNING:
They have, obviously, noticed it,
but we don't know whether they want a copy of it or they just
want the portions read back.
HIS LORDSHIP:
Well, I won't do that.
not hit the same sections.
I might
I think the only safe way is to
have the reporter do it.
15
MR. MANNING:
With respect, I am not sure what
sections are in that Affidavit.
It may well be Section 7 as
well 12; I have no objection to the
HIS LORDSHIP:
jury getting 251 or 423.
Well, they ask for a copy of the
Criminal Code, but they can't have that.
MR. MANNING:
20
Though they can have the sections.
HIS LORDSHIP:
I agree with you on the second
point, though I have heard your view, you have no objection.
What about you, Mr. Cooper?
MR. COOPER:
one.
~~
Perhaps I can deal with it one by
It seems to me that they want that case that you
referred to, they cannot have the case, I submit it is for
you to explain the law, not for them to read the case and
extrapolate.
Secondly, the Charter of Rights and Freedoms
although it was mentioned in the Affidavit, is a matter of
\
30
\
Constitutional questions.
Constitutional.
The abortion law has been ruled
Validity has been dealt with, ruled upon,
it is not for a jury but for a judge, as you did, to rule
\
4066
Voir Dire.
on, that the Motion to Quash, I don't know if the jury knows
that the law has been ruled constitutional or not.
With
respect, I submit it is not their function to take
5
constitutional validity into their considerations.
The fourth question -HIS LORDSHIP:
MR. COOPER:
I have only got three.
-- the way it -- it is the way I
put them down, but the Criminal Code, I agree with Mr. Manning,
101 I think if they want a copy of the section they should have
the conspiracy -- do I take it they think there is a code -,
HIS LORDSHIP:
-
my address, I read -MR. COOPER:
15
was a separate book.
HIS LORDSHIP:
Well, I did give it to them in
No, but I wonder if they thought it
That isn't what they asked for.
They asked for the copy of the Criminal Code which deals with
Sections' 251, and the one which addresses the area of
conspiracy.
201
It may be they want something else.
MR. COOPER:
I have no objection to the Criminal
Code provisions being given to them.
HIS LORDSHIP: Bring in the jury?
MR. MANNING~ Yes. With respect to the Charter
of Rights, it is very interesting that the indictment as
signed by Mr. Cooper for Mr. McMurtry, and Mr. Cooper is the
~I
same Crown who put the exhibit in.
MR. COOPER:
It just has no application here.
MR. MANNING:
Except Mr. Cooper put in the
document, that raises the issue that gives rise to the
question, and surely they should have a copy of those
provisions.
MR. COOPER:
I agree, it gave rise to the
~ 1 question whether or not it is within their realm or jurisdic\
tion.
His lordship has his jurisdiction.
\
The jury has
----
-
-~~--
--
-
-
40'67
Voir Dire.
theirs too.
It is not one of theirs.
MR. MANNING: With respect, it is a matte:r of
evidence, not a matter of. law.
5j
It is a factual matter put
~efore
the jury by Mr. Cooper.
If he didn't want them to
know about the Charter he shouldn't have put the affidavit
in.
He has put it in.
He makes a reference to the Charter.
The jury should be entitled to know what that reference is
all about.
MR. COOPER:
10 1
I would never try to hide the
Charter from anyone, my lord.
HIS LORDSHIP:
You don't have to argue that.
Bring in the jury.
---Jury returned.
HIS LORDSHIP:
151
Members of the jury, I am glad
to see you getting down to work, not wasting any time.
Very
efficient.
In answer to your three questions, I have
discussed them with Counsel and my ruling is this:
regarding
your first question, the following, the latest interpretation
of the Defence of Necessity, and referring to the Green Paper
2ol
which I was reading from.
This is a law report and the rule
is that you cannot take the report and read it and then
interpret your own law.
You have to take the law, the
condensation, or the statements that the judge gives you,
but, I won't say there is a way of getting around it, it is
a way to solve it, you are probably not ready for it yet,
25
you have got findings of fact to make.
When you eventually
get to deal with necessity, at that time, if there is any
part of that that you just want a little refresher on, then
you can ask, and the Reporter can read you back the exact
\
30
words I read so that you are getting the very same thing.
That is number one.
When you are ready for it, if you want it,
\
87 {6/761
and tell us you want it, what you
\
7540.1171
want, we will get it for
4068
you at that time.
In two you asked about the Canadian Charter
of Rights and Freedoms referred to in the Affidavits of
51 the doctors.
law.
Well, on that point, the question is one of
It is a question that was dealt with.
And you are
dealing with the constitutional validity of Section 251, but
the Charter insofar as it affects this situation of the Code
has been dealt with as a matter of law in this very trial,
over a period of months, on the Motion to Quash and at that
10 1 time Counsel submitted a very detailed argument,
,
very
thorough, all the authorities, stacks of them from all over.
There was every authority on the subject.
The subject, I
think, was dealt with either by Counsel for the Defence or
Counsel for the Attorney General of Canada, or by Mr. Cooper,
151
for the Attorney General of Ontario.
I made a ruling then that after deliberation,
that Section 255 was not ultra vires, that it did relate to
Criminal law, it was constitutional.
But that is a decision
as a matter of law and no doubt it will be dealt with by a
higher court in due course, but until it is, that is the law
ml so that you are not concerned with it.
You are only
concerned with the law that ~gave you.
And on the last point, you win some, you lose
some, on the last point, you have asked could you have a copy
of the Criminal Code which deals with Section 251 and conspiracy.
25
The answer is much like the first one.
You cannot
have the Code, but you can have a copy of those sections,
the two sections that you are dealing with, and I can have
those typed out and we will get them to you just as soon as
we can on those two.
So there is the answer to your three
\
~
questions.
\
---Jury retires.
'
Thank you.
You can return.
4069
Voir Dire.
MR. MANNING:
51
I would ask, make my submission
that your lordship's answer or direction to the jury -HIS LORDSHIP: It is a submission, I take it?
MR. MANNING:
It is a submission with respect to
what your lordship said about the Charter, telling them
there has been a ruling made with respect to it, I submit,
was not an answer to their question, it went far beyond
101 that.
You told them that was the law.
You told
them they were not concerned with it, and in effect, in the
record, they are not to be concerned about part of an
Affidavit put in by Mr. Cooper.
I submit that is a very
serious error.
15
HIS LORDSHIP:
I attach a great deal of weight
to your'submission ana reject it. It was ruled on before.
It was ruled on before you put the evidence in.
dealt with in the Charge.
MR. MANNING:
~1
It was
Now it is dealt with again.
This is an entirely different matter.
The jury don't know and the jury have never been asked whether
they were looking at that as a factual matter or a legal
matter.
HIS LORDSHIP:
25
All right.
I have your submissions.
---Upon resuming at five o'clock, p.m.
HIS LORDSHIP:
Another memo from the jury with
regard to the Defence of Necessity.
"We would like the
reporter's copy of the criteria that govern this defence as
soon as possible." And there is some kind of mark, looks
like an arrow and it has "with three tests".
30
I think that means we have to bring the jury
\
\
in and the reporter will have to read the law.
\
I am wondering,
4070
in view of the hour of the day, and the importance of this
decision, that they might consider doing it when they are
fresh in the morning?
5
MR. MANNING:
I would, on behalf of my clients,
wish to have the matter dealt with today.
HIS LORDSHIP:
We will ask the jury their views.
Bring in the jury.
MR. MANNING:
101
Excuse me, my lord, is your
lordship planning on having the reporter read both sets of
the test, and what your lordship read on both days?
HIS LORDSHIP:
They asked earlier not for that,
they asked for what I read from the Green -MR. MANNING:
They didn't ask specifically for what
you read from the Green Sheet.
151
It wasn't clear what they wanted,
but if your lordship is going to put any of the law of necessity
I would
a~k
that it be put, with respect, to what your lordship
read yesterday or in your original charge and today.
HIS LORDSHIP: Do you have any views on that?
MR. COOPER:
I think the whole thing should be
read, my lord.
~I
MR. MANNING:
You said both yesterday and today.
He meant Monday, my lord.
Perhaps we should leave it to them
and see exactly what part they want first and then we can
discuss it.
MR. COOPER:
~~
---Jury returned.
HIS LORDSHIP:
Shouldn't that be done in writing?
Members of the jury, I have your
memo and it raises some questions.
We are wondering what it
is exactly you want, because your first note, I haven't
got it here now, it dealt with what I had read, at least it
was my impression, dealt with what I had read from my Green
~~
notes.
This one seems to go a little bit further and ask
for a copy of the criteria that govern this Defence as soon
s possible.
Your addition, the three tests, I am not
4071
sure, may cover part of what I gave you from my notes
earlier in the week and again today.
That may take some time
and we can have the Reporter, at least, read the part
Sj relating to what I read today from the Green Sheets.
She could do that.
But the other part, I
would have to read and you may recall that it took three
hours to read that on Monday, and an hour and a half or two
hours today.
We will be here all night.
For some of us it
has been a long day~ Could -- would you consider either
10! hearing part of it today and the rest tomorrow morning, or
would you like ko start fresh tomorrow morning?
-FORELADY: My lord, with respect, we meant, you
know, at the convenience of the court. We are hungry as
151
well. We don't mind waiting until the morning at all.
Green sheet you read from, that could definitely
HIS LORDSHIP:
That
We could start with that, if it
doesn't answer your questions, then we will go on and give
you whatever you want.
FORELADY:
~I
That is what we meant by that, in the
morning will be just fine.
HIS LORDSHIP:
Then the Reporter tonight can dig
out that part so she is raring to go at ten o'clock tomorrow
morning and give it to you then.
~I
You are excused then. Maybe you are getting
out a little early after all. Ten o'clock tomorrow morning.
---Jury retires.
---Court adjourned to Thursday, November 8, 1984 at
ten o'clock a.m.
3Q
\
\
87 (6/76)
7540·1171
4072
NOVEMBER 8, 1984
---Upon
resuming at ten o'clock a.m.
---Jury polled, all present.
5
HIS LORDSHIP:
Members of the jury, you have
asked to have read back to you the reporter's copy of the
law, and you also referred to three tests which happen to
be part of what carne from my notes.
So that we are going to
have the reporter read you the law that I read first.
10
,
---Reading by the Reporter.
HIS LORDSHIP:
Now, the part that I read from
my notes, gave my interpretation of the law and set out those
three tests.
Now, I have given this to you twice and the
reason there may be the odd word here and there different,
but it is because I may have added in an explanation a bit
151
here and there, but what I am going to do is re-read that
and because it is what.I thought was a condensation and set
out the tests.
You may think much of this is repetitious
and it is.
20
I said:
' Necessity.
I will now explain the Defence of
Where an accused believes upon reasonable and
probably grounds that serious harm will befall himself or some
other person he is excused from cornrniting a criminal offence
to avert that harm, if there is such an emergency that no other
course of conduct is reasonably possible in order to prevent
~~
'
that harm.
But this defence does not apply where the offence
commited gives rise to
prevented.
more serious harm than sought to be
The defence does not entitle a person to violate
the law because in that person's view the law conflicted with
some higher social value.
The Defence of Necessity for non-compliance
t
~ with the law is very restrictive.
"7 lh/7&..\
~n
very urgent situations of clear and immediate peril when
ornplianc~
'JCAO
It is available only
1 171
with the law is demonstrably impossible.
s1
4073
In other words, although the accused's
action in breaking the law was wrong, it is excused because
sl
in such circumstances the accused had no viable or reasonable
.choice.
In measuring whether or not the accused really
had a choice, you should exclude conduct attempted to be
justified on the grounds of an ethical duty internal to the
conscience of the accused.
101
Likewise, you should not judge
necessity on the basis of your own views of our abortion law.
Rather, you should
measure the accused's actions on the basis
,
of
societies~
expectations of appropriate and normal resistance
to pressure.
In order to assist your determination of whether
the Defence of Necessity has been made out, I am going to
151
outline three tests:
evidence_ that the
if it is found on the basis of all the
accu~ed
have met the requirements of all
these tests, then the Defence of Necessity can succeed.
If it is found that the accused on the basis
of the evidence have not met the requirements of these tests
then the Defence cannot succeed.
201
Each of the following three requirements must
be met before it can be found that the Defence succeeds.
If the accused have shown to your satisfaction that one of the
tests have been met, but not the other, then the Defence fails.
It must be your conclusion on the basis of the evidence that all
~1
three tests have been met.
Now, for the first test.
The Defence of
Necessity does not apply except in a situation of emergency
when the threatened harm is so immediate and the peril so
imminent that it compels disobedience of the law.
In other words, it must be found that the
~ accused had to act, that in effect, his choice to break the
\
law was no choice at all.
\
(6/76!
u•n·!lll
The emergency must have existed
40,74
at the time the accused agreed -- some of this, I am sorry,
some of this is irr pencil and it gets blurred with aqe -- the
emergency must have existed at the time the accused formed the
Sl agreement to break the law. At a minimum, the situation must
be so emergent and the peril must be so pressing that
normal, human instincts cry out for action and make a counsel
of patience unfeasible.
In other words, can it be said that any
reasonable man would find the situation facing the accused
101
when he made the agreement, so dire and desperate, that immediate action was'demanded?
If you find there was no such emergency,
the Defence of Necessity fails and you go no further.
If
you
find that it is met, then you must go on to consider the second
15 I
test.
Having found that the situation was one in which the
accused had to act, you must still ask yourselves could the
accused,' nevertheless,· have realistically acted to avoid the
peril or prevent the harm without breaking the law?
In other words, was there a legal way out?
The importance of this requirement cannot be over-stressed.
201 The question you ask yourselves is whether the accused had
any real choice.
Could he have done otherwise?
If there was
a reasonable, legal alternative to disobeying the law, then
the Defence of Necessity is not open to them.
If there were options open to the accused
25
other than the option of disobeying the law, then their
actions cannot be found to be necessary in the relevant sense.
If you find that there was a reasonable,
legal alternative to breaking the law, the Defence fails.
If you found that there was no reasonable,
legal alternative then you apply the third test.
The third
~I test is whether the action taken was proportionate. Even if
\
it is found that there was an emergency situation, and the
peril was so imminent that it compelled disobedience of the
\
7540·1171
4075
law and that compliance of the law was impossible, it is still
necessary for you to consider the third test.
assess whether the action was proportionate.
51
That is, to
In other words,
it must be found the harm inflicted by breaking the law was
less than the harm sought to be avoided.
Our criminal justice system does not permit
an accused to inflict a greater harm in order to avoid a
lesser evil.
Those are the three tests.
To recapitulate, let me say the Defence of
10! Necessity is not open to an accused to justify conscious law
breaking.
Tha~
is, civil disobedience.
It is only open to
an accused where actions can truly be characterized as bein
in response to an urgent situation of clear and imminent
peril and where there is no reasonable opportunity for an
alternative course of action that does not involve the breach
151
of the law.
As well, the harm inflicted by the violation of
the law, must be less,than the accused sought to avoid.
That is the law that applies to the Defence
of Necessity.
Now, that is what I read to you.
Now, as to onus of proof, you may recall that
~I
when I gave you some principles of general law in opening, I
told you that the onus of proof in this case was upon the Crown
throughout to satisfy you beyond a reasonable doubt that an
offence was committed and that the accused committed it.
is the general law.
Crown.
~I
That
That is the overall onus that is on the
When issues are raised by the Defence such as whether
or not an emergency existed such that the actions of the
accused were involuntary, those issues are determined by you
on a balance of probabilities.
The onus of satisfying you beyond a reasonable
doubt as to each element of the crime charged, such as
'~'conspiracy,
\
remains on the Crown throughout.
overall responsibility.
That is an
The passage just read to you on the onus
\
87 (6/76)
7540·1171
4076
of proof sets out the law and explained why that onus is
applied.
The overall onus is on the Crown.
You have just heard the passage read.
51 you want it again,
I will read it again.
If
You don't need it?
All right.
Now, I hope that explanation of law will be
of assistance.
You may now retire and continue with your
deliberations.
---Jury retires.
10 1
MR. MANNING:
.
. h
Two po1nts,
my 1 or d , f.1rst, w1t
respect to the'onus of proof, your lordship's last comment
that the onus of proof is on the Defence
HIS LORDSHIP: Did I say on the Defence?
MR. MANNING:
Well, where the issue of necessity
15 1
is raised is on a balance of probabilities, seems to be at
odds
HIS LORDSHIP:
Did I say the onus of proof was
on the Defence and the balance -MR. MANNING: Where the Defence raises
HIS LORDSHIP:
I said, when issues are raised by
20 1 the Defence such as whether or not an emergency existed,
such that the actions of the accused were voluntary, those
issues are determined on the balance of probabilities.
MR. MANNING: Yes.
HIS LORDSHIP: Are you suggesting I say
~I
you have to prove them?
MR. MANNING:
is left, I submit.
HIS LORDSHIP:
That seems to be the suggestion that
Your inferences keep disagreeing
with mine.
MR. MANNING:
I know.
HIS LORDSHIP: You see, I didn't say, as you just
'00
\
G 87 (6/161
said -MR. MANNING:
\
7540·1171
But you have said earlier that with
4077
Objections -- Mr. Manning.
respect to exemptions that the onus is on the -- or t:hat they
are -HIS LORDSHIP:
5
MR. MANNING:
All right.
I have got your point.
And it does seem to be at odds with
page 34 of the Perka judgment where the evidence must only be
sufficient to raise an issue that the situation created was so
emergent and that then the Crown must be prepared to meet
that issue and there is no onus of proof on the accused.
101
The other point, my lord -HIS LORDSHIP:
Just pause a moment, will you,
Yes?
please?
MR. MANNING:
The other point might be matter of
my not having heard correctly, in the passage that was read
15 1
by the Court Reporter, right near the beginning, where there
was a reference made, where your lordship had read from what
was page 20 of the Perka judgment, the passage, perhaps I
could read the first part of the passage -- it is one word
but it is an important word.
The passage I am referring to
is the second sentence: " •.. where normal human instincts,
~I
whether of self-preservation or of altruism, overwhelmingly
compel disobedience ... ", that is part of what the court is
dealing with, I thought I heard read, compel "it's obedience'',
I may have missed it.
HIS LORDSHIP:
~I
We can check, but it clearly
says "disobedience•. And when I read it -MR. MANNING: It may be my hearing.
HIS LORDSHIP: I will re-read it.
from that passage and the first word is -MR. MANNING:
I was reading
Lastly, my lord, it is my
respectful submission that without a re-reading or reading
'~1
it to the jury of that part of the Perka judgment where the
\ I court
O.G 87 (6/76)
explains what it means by voluntariness or involuntari-
ness, the jury may well be of the view that merely acting is
\
7540·1171
-
4078
Objections -- Mr. Manning.
voluntary and merely not acting is involuntary, whereas the
court does seem to put it on a different basis and puts it
on the basis of
5
HIS LORDSHIP:
Well, they go into drunkenness,
and insanity.
MR. MANNING:
No, I am referring to the page 21,
where they talk of normative or moral involuntariness.
Now,
your lordship did read from the example of the Alpinist and
10 1 then the phrase "realistically, however, his act is not a
voluntary
one
11
~
but the next sentence that your lordship
did not read, which I submit
HIS LORDSHIP:
Purposely. But I will do it.
I
just left out the parts I think, to not make it more difficult
to understand.
"This sort of
~nvoluntariness
15 1 as moral or normative involuntariness."
was
co~only
is often described
I didn't think that
used.
MR. MANNING:
It is not, except it explains the
underlying rationale.
HIS LORDSHIP:
You want that sentence in.
I will
20' put it in.
MR. COOPER:
My lord, I was the one who raised the
point yesterday, not Mr. Manning, about the balance of
probabilities, it gave me concern at the time, as well.
HIS LORDSHIP:
Excuse me.
Just a minute, until
I get Mr. Manning's point down.
~1
MR. COOPER:
My lord, I mentioned yesterday, that
I thought you were saying there was an onus on the balance of
probabilities on the Defence with respect to the production of
evidence sufficient to allow it to go to the jury, if that is
what you were saying, I thought that was incorrect and asked
~~
you to re-charge the jury on that.
You didn't.
If you are
saying today that the onus is on the prosecution, I submit
\
it isn't either, once the Defence satisfied the burden of
\
87 (6/76)
7540·1171
fl
4 0'7 9
Objections -- Mr. Cooper.
adducing evidence then the overall burden of reasonable
doubt -- still beyond a reasonable doubt -- still re=ts on
the prosecution, so that my point is -5
HIS LORDSHIP:
Just a moment, please.
MR. COOPER: Sorry.
HIS LORDSHIP: Once the Defence satisfies the
burden of -MR. COOPER:
ol
1
Of producing sufficient evidence
to allow the Defenc~ to go to the Jury, then the overall
burden is still on the Crown, beyond a reasonable doubt,
;
to establish that the law was broken and there was no necessity. So that the balance of probabilities, in my respectful
submission, has nothing to do with the Defence of Necessity.
151
HIS LORDSHIP:
re-charge them, escuse me.
MR. MANNING:
I will take it out.
I will
If I can respond, perhaps the
safest way, my lord, is to merely repeat what the Supreme
Court has said at page 34.
MR. COOPER:
~I
I think it is important that you
point out, correct what I perceive -MR. MANNING:
If I might finish.
That avoids
the terms burden of proof of any kind on Defence.
HIS LORDSHIP:
They do refer to "burden", that
is what caused me to put the words in, the third line says:
~1
they talk about onus of proof, but they say in the third
line, they talk about burden of proving -MR. MANNING: That is the Crown.
HIS LORDSHIP: Obviously, the Crown.
MR. MANNING: When they deal with the Defence
they very carefully stay away from the word "burden".
30
HIS LORDSHIP:
34, I offered to do it, because I thought it clearly set it
\
,~.
I will re-charge -- read page
7,0-1171
4080
Objections -- Mr. Cooper.
MR. COOPER:
balance of probabilities.
HIS LORDSHIP:
5
And tell them to forget about
The other point, my lord, was
Excuse me, just a minute.
MR. COOPER: Since Mr. Manning wants to put in the
paragrah he wants, I want you to put in the part I would
like -- this is on page 32 of the Perka judgment.
HIS LORDSHIP:
You asked me about that before.
I ruled against you because that related to negligence on the
10
part -MR.
COOPER:
,
may read
i~,
It still goes to voluntariness, if I
starting at the fifth line:
"If the necessitous situation was clearly
foreseeable to a reasonable observer, if the
actor contemplated or ought to have contemplated
that his actions would likely give rise to an
15
emergen~y
requiring the breaking of the law,
then I doubt whether what confronted the accused
was in the relevant sense an emergency.
His
response was in that sense not 'involuntary'."
20
It goes right to the heart of voluntariness and,
I submit, to be fair, if you are going to put in parts
Mr. Manning wants from what is the law of necessity, then
that ought to be put in too.
HIS LORDSHIP:
Well, you have to go back almost
to the beginning of that, illegality or contributory fault.
MR.COOPER: You don't need to get into those
25
concepts if you just read the passage which I mentioned which
summarizes it all.
HIS LORDSHIP:
But it is in relation to that
particular subject, you have to take the whole paragraph,
in my view.
lo
fault to the availability of necessity. Well, they were
\
\
8.__7 1~
L:l.:...l
The better approach to the relationship of
"UtA.n_,
1 '71
4081
Objections -- Mr. Cooper.
talking about illegality in that case, they were talking about
a crime being committed when the necessity arose.
MR. COOPER:
5
Yes.
HIS LORDSHIP: Well, how does that apply here?
That was my problem before, remember?
MR. COOPER:
There are two distinct concepts:
one is whether they are committing illegal acts when they are
confronted with necessity, or whether there is contributory
10
fault.
I say the contributory fault here as opposed to
illegality is that here was a situation where the accused could
clearly see if'they came to Toronto and set up this
thing, that-might give rise to the emergency by women coming
to their clinic demanding their services.
I am saying that that passage is directly
151
relevant and appropriate and summarizes in a very pithy fashion
what is an applicable principle of fact.
HIS LORDSHIP: Well, you may be right, but I
disagree with you because I think that is confined to fault
and I would rather not put it in if it might hurt the accused.
It might clear the issue, but I think it is in my view
20
referring to a fault situation and in fairness I think I should
not bring that in.
Would you ask the jury to come back, please?
---Jury returned at 10:45 o'clock, a.m.
HIS LORDSHIP:
25
Members of the Jury, in reading
from her notes the Reporter used, and I refer to the passage,
that criminal law cannot hold people to the strict obedience
of laws in emergency situations where normal human instincts,
whetfier of self preservation or of altruism overwhelmingly
impel -- she read "obedience".
Well, that does not make sense.
30
7 (6/76)
that is what I read.
\
7540-1171
I don't think
The word in there is disobed-
4082
e-charge to the Jury-- Parker, A.C.J.
ience.
The first part refers to obedience, the second part
to disobedience.
The correct reading of that is:
"Criminal law cannot hold people to the
strict obedience of laws in an emergency
5
situation where normal human instincts, whether
of self preservation or of altruism overwhelmingly
impel disobedience."
I think it was a mis-reading, but that is the
correct reading.
10
;
Defence
sue~
I said to you when issues are raised by the
as whether or not an emergency existed, such that
the actions of the accused were involuntary, those issues are
determined by you on a balance of probabilities.
I am going to change that, delete that, as
151
to how they are determined, because you might infer from that
I was talking about
o~us.
I didn't say onus, but a clear,
better way to phrase that is:
once the Defence satisfies the
burden of producing evidence as to emergency, then the overall
burden is on the Crown to establish that the law was broken
and that there was no necessity.
There is a distinction. But
2ol so there can be no doubt again, I am going to do what I offered
to do, that is, conclude by re-reading the passage on page 34
that sets it out.
Onus of proof:
"Although necessity is spoken of as a
defence, in the sense that it is raised by the
accused, the Crown always bears the burden of
proving a voluntary act. The prosecution must prove
25
every element of the crime charged.
One such
element is the voluntariness of the act.
Normally, voluntariness can be presumed, but if
30
the accused places before the Court, through
his own witnesses or. through cross-examination of
\
Crown witnesses, evidence sufficient to raise an
\
issue that'the situation created by external
\
forces was so
4082a
Re-charge to the Jury-- Parker, A.C.J.
"emergent that failure to act could endanger
life or health
and
upon any reasonable view of
the facts, compliance with the law was !mpossible,
then the Crown must be prepared to meet
5
that issue.
There is no onus of proof on the
accused."
The onus of proof remains on the Crown
throughout.
10
Now, one other point, there is a sentence in
here that could,-- I have the page, does anybody know the
page that
MR. MANNING:
21.
HIS LORDSHIP: Twenty-one.
151
Reporter read
You may recall the
you the passage I read, about the example of
the lost mountain climber. There is another sentence after it
that may, help you to understand.
I left it out purposely
because it didn't appear to me that it made any difference.
It said:
"This sort of involuntariness is often
described as moral or normative involuntari-
20
ness."
I don't know if that assists you or not, but
there it is.
Now, I think those are the additions.
You may retire once again.
25'
---Jury retires.
HIS LORDSHIP:
MR. MANNING:
Mr. Manning, anything further?
No, my lord, I know it comes as
a great surprise.
MR. COOPER:
I'd say it was perfect, too, perfect.
---Upon resuming at 11:00 o'clock a.m.
HIS LORDSHIP: You may recall, I mentioned that
JQI
I didn't refer to a particular sentence because I didn't
\
87 (6/76)
think that normally, in the street, they talked about moral
\
7540-1171
i
I
LJ
40B3
or normative involuntariness.
Anyway, the jury have now
asked, can they have a dictionary to look up the meaning of
some words.
5
MR. MANNING:
I have no objection.
HIS LORDSHIP:
that could lead to.
Oh, I do.
I do.
I don't know what
It's like giving them a copy of the
Criminal Code or a judgment.
You don't know the reasoning.
No, they can't have a dictionary, but if they have any words
101
they want explained,. send in a note and we will bring them
back in and refer to the meaning of the word.
I just don't
want them -- any objections?
-MR. COOPER:
No.
I think if you give them the
dictionary we should give them the book on Aristotle as well.
MR. MANNING:
151
HIS LORDSHIP:
along with today.
Oh, I have no objection to that.
You are getting much easier to get
All right.
We will rise and if they have
any special words they·want, we will deal with them at that
time.
---Court rises.
20 ' ---Upon resuming at 11:25 a.m.
---Accused in the dock.
HIS LORDSHIP:
Before the jury get here, better
hold the jury, just a moment, please.
I just want to point out to anybody, I don't
~~
think I need to, looks like there are mostly members of the
press, and they are pretty responsible people and know better,
but I don't want any outburst.
in the Court.
I don't want any disorder
This is not one way or the other.
want you expressing your views.
This is a serious matter
we are dealing with, a legal matter.
30.1
I don't
All right, bring in the
jury.
THE~GISTRAR:
\
Members of the Jury, please answer
to your names as I call them.
\
7 (6/76)
7540·1171
...
4084
---Jury poJled,~ll present.
stand?
THE REGISTRAR: Mr. Foreman, would you please
Will the accused please stand? Mr. Foreman, has the
Sl jury agreed upon a verdict?
THE FOREMAN: Yes, we have, my lord.
THE REGISTRAR: Would you, therefore, state the
verdict of the jury in this case, and first, in the case
of the Queen v. Henry Morgentaler?
THE FO~EMAN: Not guilty as charged.
THE REGISTRAR: Secondly, in the case of Leslie
Frank Smoling? ,
10
15
-THE
THE
Robert Scott?
THE
MR.
HIS
FOREMAN: Not guilty as charged.
REGISTRAR: And, finally, in the case of
FOREMAN: Not guilty as charged.
COOPER: I would like the jury polled,my lord.
LORDSHIP: Would you let the press run loose
for a moment? I will excuse you, although I shouldn't, it's
important. Go ahead.
MR. MORGENTALER:
My lord, may I address the
201 jury?
HIS LORDSHIP: No, you may not. Just be quiet.
THE REGISTRAR: Members of the jury, hearken to
your verdict as the court hath recorded it.
You say the
accused as follows: Henry Morgentaler, not guilty as
charged; Leslie Frank Smoling, not guilty as charged, Robert
1
~ scott, not guilty as charged. So say you all?
THE FOREMAN: We do.
---Jury polled.
MR. COOPER: My lord, there are two other charges
which I think I explained at the outset. I never had any
~~intention
of proceeding. They are duplicate charges since
the conspiracy was laid. I wonder if the accused can be
1
\ arraigned and the jury directed to acquit?
\
87 (6/76)
7540·1171
..
40'85
HIS LORDSHIP:
You may recall at the opening I
only gave you the one charge.
There were two others, but
as the Crown has told you they are not pressing the others
sl
now that their main charge is dealt with.
THE REGISTRAR:
Dr. Morgentaler is not named on
these two.
MR. COOPER:
We will let him go.
HIS LORDSHIP:
101
speeches, just sit down.
T~E
Robert
Hughe~
REGISTRAR:
Mr. Manning, is that the accused,
Scott?
MR. MANNING: Yes, it is.
THE REGISTRAR:
(Reads indictment) .
MR. COOPER:
151
You may step outside, but no
Again, I ask, maybe the press could
be refrained from publishing the names of the women, my lord.
I hope they will follow the practice.
'
'
HIS LORDSHIP: Those that are here.
MR. COOPER: And I am offering no evidence on
these charges.
HIS LORDSHIP:
20
All right. There is no evidence
offered by the Crown on these cases, so I can direct you to
bring in a verdict of not guilty because there is no evidence
against them.
Just a moment.
MR. COOPER: I take it -THE REGISTRAR: Mr. Foreman, will you please stand?
~~
Has the jury reached a verdict?
THE FOREMAN: Yes, we have, my lord.
THE REGISTRAR: Would you state the verdict of the
in the case of Leslie Frank Smoling and
jury as follows:
Count Number 1?
THE FOREMAN:
3d
THE REGISTRAR:
\
THE FOREMAN:
\
7 (6/76)
7540·1171
THE REGISTRAR:
Not guilty as charged.
Count number 2?
Not guilty as charged.
In the case of Robert Hughes Scott,
4086
Count Number 1?
THE FOREMAN:
Not guilty as charged.
THE REGISTRAR: Count Number 2?
THE FOREMAN: Not guilty as charged.
MR. MANNING: Thank you, my lord. There being no
5
other proceedings against these three accused, I would ask
they be discharged.
HIS LORDSHIP: All right. They are discharged.
Members of the jury, that completes this case,
10
and I want to thank you on behalf of your community for
carrying out your duties. It was your decision. The
responsibility of guilty or not guilty is yours and you have
rendered your verdict.
So thank you for the time that you
have spent here and thank you for the trouble you went to.
151
I
make no comment on the decision because that is not my
responsibility. It is yours. And so, having said that, you are
discharged and your services are completed and thank you once
again.
---Jury withdraws.
---Court adjourned.
20
CERTIFIED CORRECT (pages 1000 to 1672):
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Eve
!uk-J-dJ,·s.c.o.
hroch-shahi, C.S.R.;
25
30
\
57 (6/76)
\
7540·1171
........__
~
4087
In the Supreme Court of Ontario
(Short
style of
cause)
HER MAJESTY THE QUEEN VS. MORGENTALER ET AL
CERTIFICATE re APPEAL TRANSCRIPT
Date ORDERED
;
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.
Date COMPLETED
and ordering
party advised
~kn•P:-!j .. \ ~.l.l H~~
Date PICKED UP
by ordering
party
.. ~-b rv.o.</ j . .I.~ ; .I.~~£":
REMARKS:
R. Cuthbert
Chief Supreme Court Reporter
~-~
.. . . . . . . ..
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per ...... 4'~
\
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.
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