4001 I Re-charge to the Jury, (Parker, A. C. J.) I I NOVEMBER I I 7.L 198~ ---Upon resuming at ten o'clock a.m. 5 ---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 10r 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 15 ' ' 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 20 ! 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. 25 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 \ or the inferences from the evidence might do that, then ~ the judge should attempt to clarify it even though he, himsel{, may feel that what he said the first time was l__ perfectly right and that the proper infer~nces could be . 4002 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 5 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 10i 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. 151 I A judge has to do it between when he gets the ' 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 20 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 25 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 \ an impartial ~ry. Mr. Manning suggests that you might get i l_Ol II I L 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 4003 I 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 5 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. 10; 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 15! i 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 20' 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 25 I is his duty -- to tailor the sentence to the offence. my closing remarks I said to you: i \ I I I I "You are not concerned with the consequences of your verdict." of the law and that is the law. In I was conscious I gave it to you. However, 301 \ I iI L it has been suggested that because of Mr. Cooper's remarks and my,comments in respect of them that you may have the c 4004 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, 5 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 10 ! 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 15 Defence. So that you do not draw any wrong or negative inferences, I should explain why I proceeded in that order. 20; 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 25 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 \ Necessity apply. 30 I did not intend you to infer because \ L 9 7 'f '] 6 ) I didn't refer to the cross-examination of the Crown ?5AQ·ll71 \ 4005 I Re-charge to the Jury-- (Parker, A.C.J.) witness that that was not relevant. II I did not think it was particularly relevant to the Defence of conspiracy, i I 5 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 10 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 151 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. 20 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 25 ignore the Defence. Please don't draw any inferences from the remarks I made. It was just a comment I shouldn't have made. \ l I do intend to re-charge you upon the I I \30: general principles of law that apply to the Defence of I L Necessity. I should say that apply both to conspiracy and 4006 ~ Re-charge to the Jury-- (Parker, A.C.J.) I I necessity. I would ask you to accept what I told you previously unless I now say something different, and if I 5 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. i 101 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 i 15: of Section 251 which deals with the charge of abortion and Section 423 which deals with conspiracy. you the whole sections word for word. I I did not read I only picked out those phrases that I thought applied to this case. 201 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. 25 think it was your concern. \Ii I didn't mention either, whether or not she was pregnant because I don't think that ~: \! is any big issue, but I have now read you that Section (1). subsection (1). 1 ' - ~· 0 ·11 71 Subsection (2) reads: 4007 II Re-charge to the Jury-- (Parker, A.C.J.) II I 5 "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." . I didn't read you that because I didn't think any female persons were being charged. We are dealing 10, just with th& accused. 15 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. ( 4) "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, 1 ! I I 20, I I 25 "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, \ 30: ,I I i L \. "(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 4·008 I 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. 5 (5) 10 "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. 151 ( 6) "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; 20 "'approved hospital' means a hospital in a province approved for the purposes of this section by the Minister of Health of that province; 25~ I "'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; \ 30 \ L \ "'Minister of Health' means "(a) in the Provinces of Ontario, Quebec, New Brunswick, Manitoba, Newfoundland and Prince Edward Island, the Minister of Health, 40'09 I 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, 5 "(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; 101 "'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. 15 20 (7) 25 "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. \ 30 \ agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means. \ .AJ<f•Jf' I read to you that conspiracy. is an 7540.1171 I read you that. 40·10 I 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 5 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 ~ne (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 15 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. 20 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, 25 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 30 extra words. So that the first element is that there was I \ : 87 (6;76) L an agreement to do an unlawful act, or a lawful act by unlawful means. 7540·1171 Whenever I refer to it, you should add into 4011 I Re-charge to the Jury-- (Parker, A.C.J.) I it those extra words. I 51 The next objection relates to the evidence I 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. 10 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 15 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 20 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 . . h an exception ' Wh ere th ere 1s w1t as in 251, 25 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 \ ' I 30~ \ I i L he had checked the statutes. He was asked had he looked at the records, and he answered: ' "No." But his reason was t~at he ~ 4'012 I Re-charge to the Jury-- (Parker, A.C.J.) had checked the statutes and it was not approved a public or private hospital. ei~ aa If it had been, it would have 6 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. 10 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 I I 151 I 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 20 ! 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. 25 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 ~0 \ Defence evidence was that the procedure was to ask this question and that Miss Massey hadn't finished the form L_ when the raid took place. \ 87 (6;76) 7540-1171 In other words, there is more - ----- 4013 I I 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 I 51 . 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. l The Crown suggested that the pre-typed forms indicated a trumped up Defence of I 10 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. 15 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 20 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 25 abortions were being performed there. I i 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 \ 30 . i 1 system. \ I I point out to you though, that once again ' L It may go to the element of emergency. \ you should consider all the evidence for and against before 4014 I 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 5 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. 10 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. I 15: What I am going to do is refer to those, ' 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: 20, II I "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." i The next principle, and now we are 25 getting into the question of excuse of the Defence of Necessity: \ 301 \ \ I I L \ "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 4'015 I Re-charge to the Jury-- (Parker, A.C.J.) I "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." 5 That is the type of emergency that we are dealing with that that defence applies to. Then I referred to an example and 10. 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 15 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." I 20: I In other words, by self-preservation. 25 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." \ 30 \ I L \ 4016 I Re-charge to the I i I I s: Ju~y -- (Parker, A.C.J.) 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. I 10. "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. 15, "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. 20 "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. 25: I \I I 30, \II I i L \ "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? 4017 I Re-charge to the Jury-- (Parker, A.C.J.) I "The question to be asked is whether the agent had any real choice. Could he have done otherwise. sl I "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. 10: "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." 15 20 The harm inflicted must be less than the harm sought to be avoided. In dealing with onus of proof, this 25 too, I believe I mentioned more than once: \ 30 \ \ "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 4018 I 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." 5 That is the quotes of law direct from the 10 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. 15 ~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 20 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. 25 I am not so sure that I need to do that. It would take more time. It is only a day or so ago 'I ,I ~L 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): zk 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 ; :J).<?~.~'o~ .. \\ \ _t,~ . 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 ~-~ .. . . . . . . .. \ per ...... 4'~ \ \ .
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