The first-ever conviction was a big deal, but almost no one was in the courtroom

Dec 08, 2020

I was in the courtroom seven years ago this month when the first and only conviction under the Assisted Human Reproduction Act went down. It was different from what I expected.

Read time: 5 minutes, 30 seconds

When news broke in February 2012 that the RCMP had raided a Canadian fertility agency, it was a big deal in my little world. Like everyone who followed fertility matters in Canada, I was familiar with the agency, Canadian Fertility Consulting (CFC). Just six months earlier, I'd interviewed the owner, Leia Picard (now Swanberg) at her house in Brighton, Ontario, the small town of 11,000 where her agency was also headquartered.

I'd never seen the CFC offices, but after the raid I searched the address online. It was located in a commercial building, alongside a pet grooming spa and a cafe. The pet people didn't answer when I called, but the coffee people did. They told me the RCMP had entered with guns drawn and had shouted "get the fuck out" when they'd asked what was going on.

The online forums lit up. "Surrogates and intended parents on other boards are complaining that they are shut down with no explanation about their money," one person posted. Another wrote, "I'm an IP who is working with CFC and my surrogate is pregnant now. She is feeling quite stressed because of CFC shut down..." Also: "I was working with them and now I'm lost. I hope they will reopen soon."

They did reopen. Then months passed with no news.

I probably wouldn't have known about the raid at all if it hadn't been for the dogged reporting of Tom Blackwell at the National Post. He dug into the story right from the start and kept following it. It was also thanks to his reporting that I knew that charges were eventually laid. Almost a full year after the raid, CFC and Picard were formally accused of having paid surrogates, paid egg donors, falsified profiles, and taken finder's fees from an American lawyer who'd been creating third-party babies in Ukraine then selling them to unwitting North American couples for over $100,000 each.

No one had ever been charged under this law and everyone was waiting to see how the courts would respond. Picard set up a legal fund and vowed to fight.

I don't remember anymore how I expected that the case would be resolved, but I'm pretty sure I thought it would go to trial. I'm pretty sure I thought it would be a major event covered by large news outlets and that the verdict — whichever way it went — would be analyzed and unpicked and would alter the legal landscape in a big and immediate way. So I was surprised when I heard that Picard might plead guilty to some of the charges.

I was lucky to have been writing a story about surrogacy and CFC for Toronto Life at that very time and that the protagonist in the story was Cindy Wasser, a lawyer who advised many CFC clients but had also been a client of the agency herself. She hinted that something would be happening — and soon.

The court date was set for December 5, 2013, at Old City Hall, a Romanesque-style landmark in downtown Toronto. I found my way to the courtroom early and waited out front with a friendly RCMP officer involved in the case.

Stories having to do with the law always mess me up. I don't know the lingo or can't find the courthouse or am indignant that the files aren't available to me or forget to stand when the judge does something stand-worthy like enter a room. So nothing twigged for me when the start time came and went and we didn't get to go into the courtroom. The RCMP officer noticed, though; he kept looking at his watch. And soon enough a clerk came up and told us the proceeding had been cancelled because the judge hadn't shown.

That in itself felt impossible to me. It felt like years that I'd been waiting for this clarity, and just like that — cancelled? Then there was the stress of my story deadline fast approaching. If there was no quick resolution, I had to find a new ending for a complex feature.

A new court date was set for the following week — Friday, December the thirteenth. As the day approached, and even as it unfolded, everyone, it seemed, was confused about the room and the time. I worried that it would once again be postponed or that I'd somehow miss it. But it did happen and I was there. My notes tell me we met in courtroom 125 and that it started at 2:20 p.m. Also, that the radiators rattled so loudly that at times it was hard to hear.

Leia Swanberg and her lawyer Frank Addario outside Old City Hall after the verdict was rendered. Photo: Alison Motluk

I didn't note down the time when things concluded, but it didn't take very long. In the end there were three charges and three fines amounting to $60,000. To a lot of us who'd been watching and wondering all those months, these penalties felt light.

But what also struck me that day was the emptiness of the public gallery and the near-invisibility that that seemed to represent. The law had been conceived following a massive public inquiry. Its creation had spanned several parliaments and outlasted multiple health ministers. It had been the subject of deep criticism and even a Supreme Court challenge. And now it was being put to the test for the first time. How was that not big news?

But it was not. There was no Globe and Mail, no CBC news and not even Tom Blackwell. It was not an easy story to keep on top of, especially for newsrooms that had already begun to shrink. The three media who were present — me, my Toronto Life fact-checker and a journalist from Radio Canada — were only there covering this as secondary colour to round out larger pieces. We could easily have missed it. I contacted Blackwell that night to tell him the case had ended. I am not known for being generous or collegial, but I wanted to read what he had to say, and I wanted others to read it too.

It was a big deal, even if almost no one witnessed it. These questions are all big deals. That case led directly — though slowly — to the regulations that came into force in Canada in June this year. Agree with the law or not — and many of us do not — the issues it wrestles with are important ones. They are worth the protracted arguments, the disagreements, the deep contemplation. This is the frontier. When new ground is broken, I hope someone is always there to watch.

HeyReprotech

The first-ever conviction was a big deal, but almost no one was in the courtroom

I was in the courtroom seven years ago this month when the first and only conviction under the Assisted Human Reproduction Act went down. It was different from what I expected.

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