COVER

A major risk earns a stunning victory

ROBERT BLOCK November 19 1984
COVER

A major risk earns a stunning victory

ROBERT BLOCK November 19 1984

A major risk earns a stunning victory

COVER

Before Associate Chief Justice William Parker of the Ontario Supreme Court sent the jury out last week to decide the fate of Dr. Henry Morgentaler and his colleagues Robert Scott and Leslie Smoling on charges of conspiring to produce a miscarriage, he spent four hours summing up the case. Then, Morris Manning, the doctors’ lawyer, objected that Judge Parker’s statement was “tantamount to a charge to convict.” In the jury’s absence, he added that the judge had failed to make it clear that the jurors had the right to

reach any verdict they wished, regardless of what they had heard in open court. The next day Parker addressed the jury again for three hours, but Manning clung to his contention that the thrust of the judge’s charge was that the six men and six women must find the defendants guilty if the three doctors had broken the letter of the law. In the end, the jury behaved as independently as Manning and his clients could possibly have hoped.

Wrong: Manning achieved his victory by taking a major risk. Intead of basing his case on the argument that Morgentaler and his colleagues had not broken the law, he argued that it was necessary for them to break the law and that they were justified in so doing. Manning said that Ontario’s current procedure for obtaining legal abortions, requiring applicants to win approval from hospitalappointed committees, imperilled the

health and even the lives of pregnant women. In what Manning called “the great Ontario telephone lottery,” women had to work their way through the Yellow Pages under HOSPITALS trying to obtain an abortion. Often they failed. The three defendants may have broken the law, said Manning, but they did so to prevent a greater wrong. Declared Manning: “These jurors are entitled to send a message to the legislators to say, ‘We will not convict on this law.’ ”

In his summation Parker clearly dis-

agreed. He attacked Manning’s use of “the defence of necessity” and instructed the jurors that it applied only to emergencies in which compliance with the law is impossible. He said that the peril to women forced to wait for abortions did not justify the doctors’ actions and he added that Manning’s advice to the jury to ignore the present law was “improper.” Parker told the jurors: “Your duty is to decide the facts and then apply the law. You are not here to judge the law and you have no right to do so.”

The men and women listening to those arguments attracted national attention not only because of the notoriety of the trial—and the decision they eventually reached—but also because of the process that had brought them together. In rejecting 34 potential jurors, Manning had the help of two Washington-based consultants, Marjorie Fargo,

a sociologist, and Katharyn Marks, a lawyer, who had helped to select the California jury that acquitted businessman John DeLorean on cocaine conspiracy charges last August. After the Morgentaler trial Fargo revealed that she and her colleague had advised Manning not to select anyone he suspected might be a regular churchgoer-even though the judge did not allow lawyers to question jurors about religion. Generally, they were looking for independent people rather than dependent or domineering individuals.

Candidates who referred to Morgentaler as “Mister” instead of “Doctor” were also ruled out.

‘Chopped’: After the acquittal, anti-abortionists reacted furiously to what they called the jury’s biassed opinion. Said Laura McArthur, president of the Torontobased Right to Life Association: “I do not have faith in a system in which 12 people are picked that do not represent the people. There are people in this country who have religious and moral views on abortion, whom they simply ¡0 chopped out.” Manning |í replied that the Crown had an equal right to re“ ject candidates for any reason.

The Toronto jury followed the example of the three Quebec juries that acquitted Morgentaler on similar charges in the 1970s. Now, Ontario Attorney General Roy McMurtry must decide whether the province will appeal Morgentaler’s latest victory. But according to the so-called Morgentaler Amendment to the Criminal Code, arising out of the abortion crusader’s earlier court battles in Quebec, a Court of Appeal judge can no longer overturn a jury’s decision. McMurtry can only request that an Appeal Court order a new jury trial. Morgentaler has pledged to reopen his clinic within the next two weeks regardless of the attorney general’s decision. At week’s end, Morgentaler declared, “We have achieved a moral victory and I hope it will resound across the country.” To that end, he gave every indication that he was prepared to break the law again.

-ROBERT BLOCK