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Chapter 13-17

Morgentaler v Borowski Ch. 13-17.docx

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Department
Political Science
Course
POLS 3130
Professor
Dennis Baker
Semester
Winter

Description
Chapter 13: - February 1983: Letter from Shumiatcher brings good and bad news - GOOD: A trial date is finally set for Borowski for May 9 in the Court of Queen‟s Bench in Regina - BAD: Borowski needs to post a $350,000 guarantee to cover expected costs - He only had $100,000 in the Alliance Against Abortion bank account - Needed the money in the next 60 days - Borowski held a press conference to try and launch an appeal, but only 3 reporters showed up - He went to his friend who was an editor and publisher for The Catholic Register, who ran a front-page story for him - From this article, money began to pour in and he received more money than he needed - He was convinced that it was both a miracle, and the fear and loathing that Morgentaler and his pro-abortion views brought out in pro-life activists - In the days leading up to the trial, Regina was bustling with activists from both sides of the argument- not only from Canada but all over the world - Shumiatcher (Borowski‟s lawyer) was worried that a dry recitation of “the facts” would not be enough to persuade a judge. He called upon viva voce evidence as well- bringing the leading experts from around the world to Regina to testify in person - Another novel element in the Bowoski challenge was the use of the new Charter of Rights and Freedoms - When the claim was first filled in 1978 it was done so under the Bill of Rights - The first matter Schumiatcher address in court was procedural - The Saskatchewan Evidence Act limits a lawyer to only 5 expert witnesses, however he had brought with him 9. He asked for permission to use all 9, and the judge agreed - Schumiatcher‟s basic argument was that modern medicine has discovered that a fetus is a human person, and therefore abortion is in violation of that fetus‟ Section 7 Charter Right to life - Although Section 251 permitted abortion, it was in clear violation of Section 7 of the Charter and was therefore invalid - The argument that the fetus is indeed a human was proven by the 9 expert witnesses - Schumiatcher knew that he needed more than just scientific fact to win the case and have the judge change the constitutional law, thereby overruling Parliament‟s collective decision - He believed that the legal lever he needed could be found in the Persons Case - Woman was told she could not be a member of the Senate because the law only authorized the appointment of “qualified persons” to Senate, and although at the time of the Persons Case women were allowed to vote, they were not before when the law was created and so they were not considered to be “persons”. The judge ruled that women did not qualify as “persons” because the word of the Constitution must be interpreted to mean what they meant at the time of their enactment. - The decision was appealed and taken to the JCPC, who ruled entirely different and said that the constitution is a “living tree” that has a large interpretation - Schumiatcher tries this to Borowski‟s case by arguing that the desire to have a group be considered a „person‟ is the same; the other case with women, this one with unborn children - Schumiatcher‟s first goal was to discredit the present abortion law and to bash the TAC - Had Dr. Carnduff on stand (Dr. for TAC) who he criticized - Testifiers: - Dr. William Liley: New Zealand physician, who spoke about how separate the unborn child and their mother are, and stated how in medical terms there was no such thing as a “potential human being” - Ms. K: woman who was forced to have an abortion at age 16 and has since had 3 miscarriages and claims to be emotionally scarred from it - Judge ruled that the testimony was not at all relevant - Lejeune: Geneticist from Paris who spoke about chromosomes and how they create unique individuals. The purpose of all of this was to prove that the abortion law is out of step with modern, newly-developed science - Dr. Bernard Nathanson: abortion-rights activist with the title as the “Abortion King of America”. He was testifying, however, on the side of Schumiatcher and Borowski. He testified how he and other pro-choice doctors used fake medical reports about their patients to qualify them for abortions, and how TAC in New York was stacked with pro-choice doctors who would rubber-stamp all abortion requests - Dr. Smyth: tried to debunk that alleged “psychological harm” of abortions - Dr. Beirne & Dr. Kudel: testified to the early anatomical development and agility of the fetus Dr. Morris: reinforced earlier testimony as to the “rubber-stamp” character of the TAC process - The Crown, in response, did not call upon any of their own witnesses. They did not argue the accuracy of the plaintiff‟s evidence, only its relevance - Sojonky (Crown Lawyer) introduced into evidence 3 documents, however they were not admitted - Sojonky asked for the proceedings to be adjourned to allow for time to prepare for final argument. His request was granted - In final arguments, Shumiatcher “wed the principles of law with the knowledge of science” - Stressed the primacy of respect for human life - Reminded the judge that medical science has shown that a fetus is biologically and genetically no different from a newborn - Emphasized new technology - Ended his final argument relating back to the Persons Case and the need to extend new rights to the unborn by recognizing that they too are “persons” - Judge Matheson asked prodding questions from both sides, and then adjourned the court, stating that he would reserve judgment. Attention shifted to Winnipeg and then Toronto, where the abortion conflict was soon to reach the boiling point Chapter 14: th - May 5 , 1983: Morgentaler clinic in Winnipeg was set to open its doors after jumping through several legal hurdles with pro-life activists with the help of Greg Brodsky, Morgentaler‟s new lawyer - Morgentaler asked the workers at the clinic to keep extensive details about every client so that- knowing that he would eventually face criminal charges- he could use the “defence of necessity” again - He also advised against any pro-choice rallies or protests outside the building, and wanted the media to see them instead being harassed by pro-life activists - Brodsky was paying the price for associating with Morgentaler. He was receiving threatening calls regularly and someone shot a hole through his sons car and his front door of his house - Borowski and other pro-life activists picketed around the clinic the day of its opening - Morgentalers support from the NDP Attorney General Roland Penner, which he was expecting never came through - Penner and Morgentaler went through many disputes and arguments about the matter - Less than a week after the opening of the clinic, Morgentaler announced that the first abortions had been performed rd - June 3 , 1983: Police raid the clinic and take away 11 people for questioning - Morgentaler was in Montreal at the time of the raid and was NOT arrested - One woman, who was in the process of getting an abortion, had to be taken to hospital - Borowski arrived on scene to congratulate the police on a job well done - For almost a week no charges were laid. Pro-choice people became optimistic and pro-life people feared that Penner was obstructing the laying of charges - June 9 : police charge Morgentaler and 7 others with conspiracy to violate section 251 - 600 Morgentaler supporters protested that night in front of the legislature - Brodsky, in what is presumably the first time in the history of Canadian criminal law, went to police and explained that his client wanted to be arrested and charged with violating the Criminal Code - He said: “if you let me know ten minutes before the raid I‟ll get out whatever you want. We don‟t want any technically tricky defenses. We don‟t want any fooling around. We want to face a direct change head-on and deal with it. We don‟t want to hide anything.” - Brodsky was NOT expecting to then be charged with conspiracy (intention of two or more people to break the law, plus proof of an agreement actually to carry out the planned illegal action) - Brodsky argued that the charges were a mistake, and a day after those who were charged were released and claimed that the clinic was still open and that they were going right back to work - Their “back-to-business” speech was all that was needed to get another search warrant, and two weeks later the police raided the clinic for the second time - Equipment was seized and 6 people were arrested and charged - Morgentaler, who was again not present, was charged as co-conspirator - 5 of the 6 people were in jail for a week because they refused to consent to a judicial order not to return to the clinic - This time the clinic did not re-open - Expensive to get back equipment that was seized and they knew another raid would come anyways - Attention switched from Winnipeg to Toronto where Morgentaler had opened another th clinic on
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