Appeal court scolds judge for telling activist ‘God is wrong,’ reduces sentence

An Ontario judge who told an anti-abortion activist “Your God is wrong” and jailed her for six months has been admonished by an appeal court colleague, who called the comments “ill-advised and inappropriate” and reduced the sentence.

Superior Court Justice Kenneth L. Campbell said the trial judge imposed a “manifestly unfit” term on Mary Wagner — 92 days in jail plus three months probation — instead of accepting a “reasonable” joint submission of 88 days time served since her arrest in a Toronto abortion clinic last November.

He cut Ms. Wagner’s sentence to time served, even though the abortion clinic protester — who was found guilty of one count of mischief and two counts of breach of probation — had already spent the time in jail.

“In my view, the trial judge ought not to have engaged in a predictably unproductive debate with a boisterous courtroom spectator during the sentencing hearing. Nor should the trial judge have then spontaneously cross-examined the accused on her understanding of the law. Finally, a number of comments made by the trial judge during the course of the sentencing hearing in this case were ill-advised and inappropriate.”

Ms. Wagner, had also argued that Justice S.F. Clements — who said during the hearing that he would like to “have somebody in her face every day, go and rattle her door, how would she like that” — may have left the impression he was biased against her.

This appellate decision, amongst other things, sends a message to the legal community that all accused — even pro-life activists found guilty of mischief — should be treated equally and respectfully under the law .

“If you think that you have some higher moral authority that allows you to break [the] rule of law, that allows you to go to that clinic, to allow you to disregard the rights of other people to use that clinic, to disrespect those people, then you are wrong, and your God is wrong, because no God would tolerate that,” Judge Clements said during the hearing last March.

The comments, among others, led defence lawyers to accuse Judge Clements of launching a “conditional attack on the Christian God” in the courtroom. Peter Boushy and Russell Browne said in arguments filed with the appeal judge that Ms. Wagner did not inject her religious faith into the hearing before Judge Clements brought it up.

“I think that spoke to the judge’s perception of potential bias there,” Mr. Boushy said.

But instead of focusing on the bias argument in his decision, Judge Campbell pinned it all on the length of the sentence and Judge Clements’ decision not to accept the “reasonable” joint submission of the Crown and defence.

“In my view, in effectively imposing a six-month term of imprisonment upon the appellant, the trial judge, with respect, erred in principle and imposed a manifestly unfit sentence,” he wrote in his decision, released Thursday. “More particularly, in my opinion, the trial judge erred in failing to accede to the joint submission advanced by the parties.” While the trial judge said the joint submission was not in the public interest and would bring the justice system into disrepute, he didn’t explain why, Judge Campbell wrote.

Judge Campbell did use surprisingly strong language for an appellate judge in criticism of a colleague, Mr. Boushy said.   “This appellate decision, amongst other things, sends a message to the legal community that all accused — even pro-life activists found guilty of mischief — should be treated equally and respectfully under the law,” he said.

The decision also means the next time Ms. Wagner is sentenced to jail for a similar crime (she had pledged to continue visiting abortion clinics — which further frustrated Judge Clements and, in part, influenced his decision to refuse the joint submission), the court will use 88 days in jail as a benchmark instead of 180 days, which is the precedent she had after the March sentencing.

This, of course, is good news to her legal team since Ms. Wagner is in jail once again. She was arrested on Aug. 15 after allegedly walking into an abortion clinic with five others to offer “counselling and roses,” according to

She was charged with two counts of breach of probation (even the appeal judge upheld the three-year probation order with the condition she stay away from all abortion clinics) and mischief and is scheduled to appear in court for a bail hearing Oct. 9.

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