Bill C-291 Rights for Unborn Victims
Mr. Leon Benoit (Vegreville—Wainwright, CPC) moved that C-291, An Act to amend the Criminal Code (injuring or causing the death of a child before or during its birth while committing an offence), be read the second time and referred to a committee.
He said: Mr. Speaker, my private member's bill, Bill C-291, is meant to protect pregnant women from violence and to protect their unborn children in an attack against the mother. In current federal criminal law an unborn child is not recognized as a victim with respect to violent crimes. This gap in federal law gives rise to grave injustices.
In November 2005 Olivia Talbot of Edmonton, who was 27 weeks pregnant with her son Lane Jr., was shot twice in the head and three times in the abdomen by a long time friend. Because Canadian law offers no legal protection for the unborn child today, no charge could be laid in the death of Baby Lane.
Another pregnant Edmonton women, Liana White, was slain by her husband in the summer of 2005. Again, no charges could be laid in the death of her baby.
Many Canadians are shocked to learn that, when an attacker kills a woman's pre-born child, no charge is laid in the death of that child, even when the attacker purposely intended to kill the child. Clearly, there are two victims in such cases, and the public recognizes this.
A Robbins SCE Research poll, conducted in December 2005, found that 78% of Canadians supported a separate homicide charge in the death of an unborn child in such cases. A Calgary Herald poll, conducted on November 30, 2005, showed 82% support.
The grieving families, who have lost their loved ones in this type of crime, only too tragically recognize that there are two victims. Just ask Mary Talbot how many victims there were when her daughter Olivia and her grandson, Baby Lane, died in November of 2005.
Any pregnant woman who survives a violent attack, but loses her pre-born child, a child she wants and loves, will grieve for that child, and no one can say she grieves for that child any less simply because that child has not yet been born.
My private member's bill seeks to address this injustice by making it a separate offence to kill or injure a pre-born child during the commission of an offence against the child's mother. Let me explain how it would do that.
In current federal law a child becomes a human being only after it is born alive, and only then does it receive protection under the law. Because children before they are born are not considered human beings, in today's criminal law they receive no legal protection whatsoever. The amendment to the Criminal Code, which I am proposing with my private member's bill, would change this so legal protection would be given not only to human beings, as defined by the Criminal Code, but also to unborn children who were harmed or killed during the commission of an offence against their mothers.
My private member's bill does not change the definition of a human being. What it does is offer protection to the unborn child, despite the definition of a human being. I believe this will also provide added protection for the pregnant woman.
Note that my bill specifically states that it applies only “while committing or attempting to commit an offence against the mother”. Why is this important? Because this terminology was used precisely so abortions would be excluded. As we have seen from reports by a few extreme media, this issue is being linked to abortion. The media seems to have more concern that it somehow is an attempt to restrict access to abortion than it does about protecting pregnant women and their unborn children. The bill has nothing to do with abortion. In fact, it is the very opposite of abortion. In the case of abortion, the woman chooses the procedure.
The bill is about protecting the children whose mothers have not chosen abortion, mothers who have chosen to carry their child to term. That is why those who truly are pro-choice will support the bill because it respects a woman's right to choose to bring her child to term in a safe environment.
Some people have argued that the Supreme Court will not allow an unborn child to have legal protection under the law because the Supreme Court has said that a fetus is not a person. This is a false interpretation of the court's rulings. It is the existing law which offers no rights to the fetus and the courts have just been applying the existing law when they have made their rulings. However, the law can be changed and that is the responsibility of Parliament, not the courts, as the Supreme Court itself has said in a number of cases.
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For example, in the case of Winnipeg Child and Family Services v. DFG in 1997 involving a glue-sniffing pregnant woman, the issue at hand was whether child protective services could force the pregnant woman into custody in order to protect her unborn child. The Supreme Court said that according to existing law the unborn child has no rights and therefore the woman could not be forced into custody. The court stated, “The law of Canada does not recognize the unborn child as a legal person possessing rights”.
The court went on to ask, “At what stage would a fetus acquire rights?”
The court said that dealing with such “thorny moral and social issues” is “better dealt with by elected legislators than the courts”.
The Supreme Court has clearly stated that the existing law does not offer legal protection for the fetus and that it is not up to the court to change the law in order to offer this protection. That is the job of Parliament.
My private member's bill addresses this issue in one very specific way, by extending protection to the unborn child who is harmed or injured when the mother is the victim of a violent crime, only in those very narrow circumstances.
Violence against women is a serious problem in our society and studies have shown that pregnancy increases the risk that a woman will be abused. When a woman is pregnant she is especially vulnerable because she has not only herself to protect and defend, but also her unborn child.
The Society of Obstetricians and Gynecologists says that physical abuse remains a frequently undetected risk factor in a large number of pregnancies and that violence begins or increases during pregnancy.
Canadian studies estimate that the prevalence of physical abuse during pregnancy is around 6%, which is extremely high, and that 64% of women abused during pregnancy reported increased abuse during pregnancy.
According to the Canadian Perinatal Surveillance System, women abused during pregnancy were four times as likely as other abused women to report having experienced very serious violence, including being beaten up, choked, threatened with a gun or knife, or sexually assaulted.
One Canadian study found that the most common area of a woman's body struck during pregnancy was the abdomen. The literature shows that “severe blunt trauma to a maternal abdomen has been shown to lead to spontaneous abortion, fetal death, placental abruption, preterm labour and delivery, and fetal injuries, such as skull fractures, intracranial hemorrhage and bone fractures”.
It is very disturbing that when a women is at her most vulnerable she is at increased risk of attack. This bill would act as a strong deterrent to perpetrating violence against a pregnant woman.
In testimony at a subcommittee hearing on the U.S. unborn victims of violence act, Tracy Marciniak, who survived a violent attack by her husband who killed her unborn child, said the following, “Before his trial, my attacker said on TV that he would never have hit me if he had thought that he could be charged with the killing of his child”. She went on to say, “If an attacker of a pregnant woman knows that they can get prosecuted for harming or killing that woman's child, they are going to think twice before they do it”. This was said by the victim of a violent attack that killed her unborn child.
What message are we sending to those who physically abuse pregnant women when we allow them to inflict such physical harm and even death on the woman's unborn child with no consequences whatsoever? The perpetrator will simply be charged with the assault on the woman, as if the child simply did not exist.
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What message are we sending to the mother of the child when we refuse to acknowledge that her offspring growing inside of her is worthy of protection? We give more protection to animals.
Before judging that statement as being over the top, I ask members to please consider this. If a person assaulted a woman who was carrying a pet cat or dog and intentionally injured or killed the pet, the person would receive the penalty for assault against the woman plus the penalty for the separate offence against the animal, which in itself could carry a prison sentence of up to six months and a fine of up to $2,000. Does anyone really believe that it is right and just that there should be a penalty for the injury or death of a pet but not for an unborn child?
The type of law that I am proposing in my private member's bill would not only act as a strong deterrent to violence, it would not only send a strong message to society that we will not condone this type of abuse on women when they are most vulnerable, but it would also bring a sense of closure to the surviving family members because it recognizes that there are two victims in such cases. Our current law, which fails to recognize a second victim in these violent attacks on pregnant women, amounts to telling Mary Talbot that she really did not lose a grandson the day that Olivia and baby Lane died. It means that we are saying to Lane Griffith, the father of the baby, that he did not really lose a son that day but baby Lane did exist. He had a name and he was loved.
The Edmonton Journal reported that baby Lane's father talked to the belly of his pregnant fiancé every night that he could and told his unborn son how much daddy loved him. Lane Griffith and his mother, Kathy Scott, held the baby after he was removed from Olivia's womb and Kathy told the Edmonton Journal “The baby was perfect looking. He was just beautiful with nice dark hair”.
I have a photograph with me here today and I challenge everyone to look at the photo and tell me how many victims they see. A beautiful young woman lies in the casket with her baby boy whose short life was ended before he ever saw the light of day, before he ever saw his mother smile and before he ever felt his father's hug.
Our law in Canada today, which gives no recognition to the tragedy that befalls a family when they lose a beloved child prior to its birth, is outdated and heartless. Again, I refer to the testimony of Tracy Marciniak, who knows only too well what it is like to have one's pre-born child killed in a violent attack. This is what she said in her testimony at the subcommittee hearing:
I know that some lawmakers and some groups insist that there is no such thing as an unborn victim, and that crimes like this only have a single victim--but that is callous and it is wrong. Please don’t tell me that my son was not a real victim of a real crime. We were both victims, but only I survived [...] I do not want to think of any surviving mother being told what I was told--that she did not really lose a baby, that nobody really died. I say, no surviving mother, father, or grandparent should ever again be told that their murdered loved one never even existed in the eyes of the law.
I agree.
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Mr. Paul Steckle (Huron—Bruce, Lib.): Mr. Speaker, more than a decade ago when I rose for the first time in this place as a newly minted MP, full of lofty ideals and untested enthusiasm, I verbally underscored my belief that all human life is sacred from the moment of conception to the moment of natural death.
Since that time I have been tested in nearly every conceivable manner. My perceptions and beliefs have been challenged and, in some instances, I have altered my positions in a manner that more accurately reflects evolving constituents' wishes and feedback or in a manner consistent with the ever-changing state of knowledge on a given subject.
That aside, my core beliefs or what I view to be absolute truths have stood the test of time and remain a constant factor in my voting record.
With the latter in mind, I am on my feet this evening but this time I will frame my remarks within the specific context of Bill C-291.
For many, Bill C-291 represents just another round in the age old abortion debate. It represents a nibbling away at the edges of the perceptions of the 1988 Supreme Court decision on the subject. I would reject any such notions and I challenge those people to lay solid evidence on the table here tonight defending that position, which I would believe to be rooted in specious logic.
First, to be absolutely clear, Bill C-291 is not a bill about abortion. It is a bill about protecting women from violence. To be precise, Bill C-291 is about protecting the choice of a woman to carry a fetus to full term. Surely we can agree that a woman has every right to make that determination.
Many Canadians do not understand that there are no protections in place for viable unborn children who, despite the mother's desire to carry to full term, are harmed or terminated at the hands of those seeking to perpetrate violent crimes. In some cases the said violence is committed in a manner specifically targeting the unborn child. This is astounding to me.
I for nearly 13 years have listened to some of my colleagues speak on the merits of a woman's right to choose but now I learn that some of those same people will not vote to protect the woman's choice if it involves the choice to keep her baby.
When the member of Parliament for Vegreville—Wainwright sought to defend this bill against irrational committee allegations that it was unconstitutional, he cited several instances to the committee where violent and criminal actions were perpetrated upon third party against prospective mothers who had chosen to carry to full term.
An example that has already been cited this evening is the one about Olivia Talbot of Edmonton who was 27 weeks pregnant with her son Lane Jr. In November 2005, Olivia was shot three times in the abdomen and twice in the head. Because we offer no legal protection for unborn children today, no charge could be laid in the death of baby Lane.
Another pregnant Edmonton woman, Liana White, was slain by her husband in the summer of 2005. Again no charges could be laid in her baby's death.
Many of my constituents and, indeed, many Canadians would be shocked to learn that when an attacker kills a woman's unborn child no charges are laid in the death of that child even when the attacker purposefully intended to kill the child.
To use the words of the member for Vegreville—Wainwright, his bill seeks to address this injustice by making it a separate offence to kill or injure a pre-born child during the commission of an offence against the child's mother. That offence would be the offence of which the person would have been found guilty had the injury or death occurred to the mother. In other words, the unborn child would be treated as if it were a human being and the existing legal protection already defined for human beings in the Criminal Code would apply.
The exact offence depends on what existing sections of the Criminal Code would apply under a specified set of circumstances. Just to be clear, Bill C-291 is not seeking to invent new offences. In the same vein I should point out that Bill C-291 actually excludes abortion. The provisions of the legislative proposal would apply only while a perpetrator is committing or attempting to commit an offence against the mother.
Again, Bill C-291 is not about limiting a choice but rather it is about instituting protections for women when they have decided that they wish to carry their child to term.
I also understand that some have objected to Bill C-291 because they have come to believe that the Supreme Court has determined that a fetus cannot be afforded the legal protections of a human being as defined by the Criminal Code. To that I would again say respectfully that notions to this effect would be inaccurate.
Currently, section 223(1) of the Criminal Code of Canada defines a human being as a child that has completely proceeded in a living state from the body of its mother. Furthermore, section 222(1) of Criminal Code of Canada defines a homicide as the act perpetrated by a person when directly or indirectly by any means causes the death of a human being. To me this seems simple enough.
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Currently the Criminal Code of Canada does not consider a fetus to be a human being as defined by the code. This proposal would seek to extend certain legal protections to the fetus in instances when the mother was being victimized in a criminal manner. This would have no impact on other debates involving fetal rights, or the greater issue of abortion in general. It would simply seek to add certain protection to women who might fall victim to violent criminal activities.
Again, while generally speaking I support a pro-life stance on the issue, in this instance I support freedom of choice, that is to say, the freedom to choose to conceive and deliver a child without threat of violence being perpetrated against prospective mothers.
I would also like to take a moment to address this notion of Bill C-291's constitutionality. I happen to believe that the committee is mistaken with respect to the state of the court's notions on the subject. Again while I do not believe that Bill C-291 is unconstitutional and I do not outright accept that it is about abortion, for the purpose of responding to claims to the contrary, I would offer the following.
First, the Supreme Court has consistently ruled that it is incumbent upon Parliament to establish parameters under which an abortion could be permitted. For example, in The Queen v. Morgentaler, Smoling and Scott in 1988, when the Supreme Court struck down the abortion law, it was done for procedural and administrative reasons only. The court clearly did not find a charter right to abortion, but rather articulated that it was up to Parliament to determine what level of protection to afford the unborn child. It said it had to be done in such a way as to balance the rights of the woman with the rights of the fetus. In that instance Chief Justice Dickson said:
I agree that protection of foetal interests by Parliament Is also a valid governmental objective. It follows that balancing these interests, with the lives and health of women a major factor, is clearly an important governmental objective.
Justice Beetz said:
I am of the view that the protection of the foetus is and, as the Court of Appeal observed, always has been, a valid objective in Canadian criminal law...I think s. 1 of the Charter authorizes reasonable limits to be put on a woman's right having regard to the state interest in the protection of the foetus.
These sentiments were echoed again in 1989 by the court in Jean-Guy Tremblay v. Chantale Daigle when the court stated:
The Court is not required to enter the philosophical and theological debates about whether or not a foetus is a person, but, rather, to answer the legal question of whether the Quebec legislature has accorded the foetus personhood....Decisions based upon broad social, political, moral and economic choices are more appropriately left to the legislature.
This was restated in 1997 in Winnipeg Child and Family Services v. G. (D.F.) In this case involving a glue-sniffing pregnant woman, the issue at hand was whether child protective services could force a pregnant woman into custody in order to protect the unborn child. As in the previous case cited, the Supreme Court said that according to the existing law, the unborn child had no rights and therefore the woman could not be forced into custody. The court stated:
The law of Canada does not recognize the unborn child as a legal person possessing rights.
The court went on to ask at what stage would a fetus acquire rights. The court said that such thorny moral and social issues were better dealt with by elected legislators than the courts.
What I am trying to say is that the Supreme Court has consistently called upon Parliament to step up to the plate and to provide the courts with guidelines with respect to fetal rights. I respectfully submit that Bill C-291 was a genuine attempt at just that.
In closing, I would unreservedly underscore my support for Bill C-291 and renew my objection to the logic that has deemed the legislation to be unvotable. I firmly believe that the process was politicized in a manner that ignored legal precedent and continuing requests from the Supreme Court on the subject. I would like to compliment the member for Vegreville—Wainwright for putting this legislation forward in the House.
Hopefully this debate will bring this matter to light in the future so that we can actually deal with the complexities of the issue rather than hide behind the politics of it.
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[Translation]
Mr. Réal Ménard (Hochelaga, BQ): Mr. Speaker, I would also like to add to the debate by saying that all parliamentarians must keep in mind that our colleague's bill is unconstitutional. Regardless of whether one is for or against abortion, at the moment, that is the state of the law. The Supreme Court has handed down decisions and it is not possible—it is not within a parliamentarian's prerogative—to change that through a private member's bill. Of course, our colleague has the right to a debate on his bill, but we must nevertheless keep in mind that this bill is unconstitutional.
Why is it unconstitutional? Because the state of the law indicates that the first rule in right-to-life issues is that a fetus is not a human being until it is out of the womb, has drawn its first breath, and is deemed living and viable. That is the legal situation; that is what the Supreme Court has said. And what the Court has said is in line with the definition in section 223 of the Criminal Code.
Naturally, we can review the history, recall the battles fought. Nevertheless—and I invite all parliamentarians to be seized of this reality—section 223 of the Criminal Code states and declares as follows:
223. (1) A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother,
As an aside, in jurisprudence “proceeded in a living state” means that the first breath has been drawn.
—whether or not (b)it has an independent circulation;
whether or not (c) the navel string is severed.
That is the position of the law. It is not possible for a member of parliament, no matter what his or her beliefs, to table a bill that is not compatible with the provisions of the Criminal Code, which are based on a ruling made after the Canadian Charter of Rights and Freedoms was proclaimed.
Let us look at the history of abortion in Canada. In 1969, the provisions of the Criminal Code were slightly different in their approach. The 1969 provisions criminalized abortion, except in cases where approved by a therapeutic committee comprised of three doctors. There have been provisions dealing with abortion since 1777, even before the Criminal Code came into being. Since the 18th century, we have followed the practices of Great Britain and those found in common law. Since 1777, provisions have protected what we would call today the sacred nature of life.
In 1969, a legislative decision has continued to prohibit abortion, which is punishable—
[English]
Mr. Leon Benoit: Mr. Speaker, I rise on a point of order. I hesitate to interrupt the gentleman from the Bloc, but he is talking about abortion. My private member's bill has nothing to do with abortion. Relevance is an issue here.
The Acting Speaker (Mr. Andrew Scheer): It does seem to be a matter for debate and not a point of order about procedure. The hon. member for Hochelaga will continue on debate.
[Translation]
Mr. Réal Ménard: Mr. Speaker, that was not a point of order, and I hope my colleague will show the courtesy of letting me finish my speech. First of all, his bill is unconstitutional. He should at the very least have the decency to listen to his fellow parliamentarians.
Yes, there are similarities between the infraction he is proposing, which relates to killing an unborn child, and abortion. All the same, I think it is my prerogative in this House to express the point of view I wish to air on behalf of my party.
In the current state of the law, the fetus has no rights while in its mother's womb. That decision was handed down by the Supreme Court of Canada, is reflected in the Criminal Code, and is the state of the law. That means that a parliamentarian cannot question that definition through a private member's bill. I think it would have been interesting if our colleague had provided us with a legal opinion submitted by the Minister of Justice, who acknowledges that the bill is unconstitutional. It is worth noting that the minister has the same background as the member who introduced the bill.
That said, I do not wish to deny our colleague's right to draw the attention of this House to such a question. He is entitled to his point of view, and all of the members of this House have heard it. This is how things should be done in a Parliament like ours.
On the topic of rewriting history on the question of when life begins, with respect to the rights of the unborn and abortion rights, I was saying that, since 1777, there have been provisions that did not appear in the Criminal Code—since the Criminal Code did not exist until the end of the 19th century—but that protected the sanctity of human life. Later, certain changes were made. The most important change was made in 1969. At that time, we maintained criminal sanctions against abortion, except if a therapeutic committee, made up of three doctors, authorized an abortion for health reasons, linked to the mother's health.
As several members have said so far, there were a number of court challenges.
Therefore, in 1969, Parliament made several important amendments to the Criminal Code, at the time referring to section 273, which specified the time when an abortion could legally be performed. Then it could be performed with the recommendation of a therapeutic committee made up of three doctors.
The section set out criminal sanctions for doctors who did not respect the strict rules that I outlined. These rules required authorization from a therapeutic abortion committee at an accredited or approved hospital and that the abortion had to be performed at an accredited or approved hospital.
The therapeutic abortion committees had to consist of at least three doctors, none of whom could be performing abortions. That very year, in 1969, Dr. Henry Morgentaler opened his first clinic in Montreal where he performed abortions without approval from a therapeutic abortion committee. As we all know, this resulted in a legal drama—probably the most famous controversy ever.
Then 1982 saw the advent of the Canadian Charter of Rights and Freedoms, which included an article on the right to physical integrity, the right to life, liberty and, of course, security of the person. This is from article 7 of the charter, which talks about life, liberty and security of the person. This would be the legal recourse by which it would be decided, in a legal manner, that women must have control over their own bodies, and that it is not in keeping with the values in the charter to restrict the right to abortion, as the provisions in 1969 did.
That is why decisions have been handed down, which prompted the lawmaker to define what life is, when a fetus becomes a fetus, and at what point a fetus must be recognized as having rights.
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I will remind the hon. members that neither the Quebec civil code nor the major existing statutes respecting women's health recognize that, as long as it is in the mother's womb, the fetus is not considered a human being. Whether we agree or not, the fact remains that such is the current state of the law.
Our colleague's bill was deemed unconstitutional because clause 2, as amended, states, “It is not a defence” to a person charged with an offence set out in the Criminal Code, namely causing the death or injuring the unborn child of a pregnant woman, “ that (a) the child is not a human being; (b) the accused did not know that the person was pregnant”.
Can hon. members see how profoundly incompatible this bill is with the Criminal Code and the courts of law—
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[English]
The Acting Speaker (Mr. Andrew Scheer): Resuming debate, the hon. member for London--Fanshawe.
Mrs. Irene Mathyssen (London—Fanshawe, NDP): Mr. Speaker, after all this time, and all the debates about a woman's right to choose, and the securing of those rights under the law, here we are again talking about this issue.
Bill C-291 proposes changes to the Criminal Code that are unnecessary and will potentially jeopardize a woman's right to choose. The proposed amendment would have two charges laid against a person who kills a pregnant woman. This would, in effect, give legal rights to a fetus and change the definition of when a fetus becomes a person under the law. Currently, a fetus is not considered a person or a human being until actual live birth.
While I will not argue that harming or murdering a pregnant woman is a particularly abhorrent crime, this bill will in the end do more harm than good for women's rights in Canada.
Some may contend that this bill has nothing to do with abortion and is just about ensuring that someone who murders a pregnant woman will pay doubly for his or her crime. However, this bill is the thin edge of the wedge, as it will change the definition of when a fetus becomes a person. This change will have an effect on the legal status of abortions in Canada.
This is not something that needs to be opened up for debate once again. Canadian women fought long and hard for the right to safe, legal abortions in Canada. Women have been forced to put their private lives under scrutiny in the courts in the fight for the right to choose.
If we take away that right, women in desperate situations will have to take desperate measures, such as a young woman in 1989. While the federal government debated making non-emergency abortions illegal, this young woman bled to death after attempting to perform an abortion on herself.
This bill is nothing but a thinly veiled attempt to make abortions illegal in Canada. I am extremely disappointed that the Conservative government would use the tragic murders of young women to push its abortion agenda.
This bill calls into question a judge's ability to take mitigating circumstances into account. Courts already take aggravating circumstances into account when deciding on sentences for crimes and would most likely consider injury to or death of an unborn child to be a serious aggravating circumstance.
Furthermore, two separate offences would not necessarily equal more jail time. In Canada, unlike the United States, multiple sentences are often served concurrently.
I bring up our neighbour to the south for a reason. As many of my colleagues well know, this type of bill has been passed in several states. This type of bill does have some impact there, as jail sentences are often served consecutively, increasing the time served.
I would also like to note that the United States is the same country where there is an active attempt to ban access to abortion for American women at both the state and the federal level. The supporters of this type of bill are the very same people actively working to ban abortions.
The evidence is clear. To date, the courts across Canada have blocked provincial attempts to substantially regulate the issue of abortion, finding that the pith and substance of such attempts is actually an attempt to recriminalize abortion through the back door.
And recriminalizing through the back door appears to be the intention of this bill. Bill C-291 puts the legal status of an unborn child into question. First, Bill C-291 does not refer to an unborn child in the same manner as other sections of the Criminal Code. Section 223 states that a child becomes a human being when it is born alive, and section 238 refers to “a child that has not become a human being”.
By contrast, Bill C-291 refers to “a child before or during its birth”. Not only is this terminology generally inconsistent with the approach taken to the fetus in the Criminal Code as a whole, but it is also inconsistent with terminology used in section 238 itself, the provision it is amending.
Bill C-291 essentially represents an indirect recognition of an unborn child as a human being. Such an initiative could have significant ramifications in a number of different areas of law.
Recognition of an unborn child as a human being indirectly leads to its recognition as a person with legal status. If an unborn child becomes defined as a person with rights, it opens a Pandora's box in the abortion debate.
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Recognition of an unborn child as a person would also have a significant impact on tort law and other areas of the common law. Numerous cases have been commenced in the past on behalf of unborn children. They have not been successful because the law does not recognize the fetus as a person with legal status. Any change to this status in the criminal law could potentially have wide ranging implications in common law.
The proposed amendment will also have a significant impact on the mens rea or the intent of the accused. Mens rea includes issues such as the accused's perception of the risk or legal consequence of his or her actions.
The amendment states that it is not a defence that the unborn child is not a human being, that the accused did not know that the mother was pregnant, or that the accused did not mean to injure or cause the death of the unborn child.
Bill C-291 essentially eliminates the intention requirement, and the lack of intention defence appears contrary to the fundamental elements of criminal law.
There is a “thin skull rule” in criminal law which already states that a person who inflicts more than trivial bodily harm must take the victim as he or she found the victim; for example, with a medical condition that leads to more serious consequences to that bodily harm. In other words, judges already have the ability to consider a pregnancy.
Bill C-291 goes beyond this to create an entirely separate offence that eliminates the lack of intention defence inherent to all criminal law. While it may be argued that intent to injure the mother fulfills the mens rea requirement for this separate offence, this is a potentially tenuous link that would likely be challenged in the courts.
It is obvious why this bill was ruled non-votable. Not only is it a veiled attempted to make abortions illegal in Canada, but it would make a significant change to our legal system that is neither necessary nor welcome.
The Conservative Party continues to repeat that it is keeping its election promises, yet its members are bringing bills to the House that directly contradict that platform. I would like to quote directly from what the government has said:
A Conservative government will not initiate or support any legislation to regulate abortion.
This bill does exactly that. It initiates legislation that will essentially regulate abortion in Canada by changing the definition of the legal status of a fetus. It opens the door to making abortion illegal in Canada.
A woman's right to choose was hard fought, and it would be detrimental to Canadian women and an international embarrassment to remove that right. The Conservatives are not standing up for Canadian women by tabling bills that will impact on a woman's right to choose.
Taking away a woman's right to choose will not reduce violence and will not make this a better world. It will only remove her freedom. That simply is unacceptable.
Mr. Rob Moore (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, CPC): Mr. Speaker, I rise today to speak to Bill C-291, a bill that proposes to amend the Criminal Code to create a new offence of injuring or killing a child before or during its birth while committing an offence against the pregnant mother.
I believe, at its core, the bill is about ensuring that our criminal law strongly condemns and holds fully accountable those who commit violent acts against others, particularly against persons who are more vulnerable to violence. The evidence is clear that pregnant women are more likely to be victims of assault by their partners than other similarly situated women. These objectives are strongly supported by Canadians and, indeed, are reflected in the government's priority of getting tough on crime.
At the outset, I understand and support the message that Bill C-291 seeks to send to would-be offenders. If we are to achieve this important objective, we must seek to do so in a way that is consistent with fundamental principles of criminal law and that conforms with our constitutional law. If we do anything less, if we support legislative reform that does not follow the contours of our Constitution and its conventions, then we in fact fail to provide Canadians with the very protection against violence we seek to provide.
That is why the government cannot support Bill C-291. Although it appreciates the its intent, we believe its proposed reforms are in fact unconstitutional and, as a result, cannot do what it purports to do. It cannot succeed in providing the additional protection against personal violence, which we all agree Canadians want and deserve.
Bill C-291 proposes to create a new criminal offence. Under the bill, a person who injures or kills a child before or during its birth, while committing or attempting to commit an offence against the mother who is pregnant with that child, could be charged with the same offence against the child. Under Bill C-291, an accused could be charged with such an offence without knowledge that the mother was pregnant and without the accused intending to injure or kill the child. Therein lies the problem.
Bill C-291 proposes to create a new offence that would apply even though an accused did not intend to commit a crime. One of the fundamental principles of criminal law is that persons are not punished simply because harm was done, but rather because they are morally culpable for causing that harm. Therefore, a criminal offence may only be committed where there is both a guilty act and a guilty mind. There must be an intention to commit the act, as well as the commission of the act itself.
An offence that does not require a guilty mind and that requires only a guilty act is called an “absolute liability offence”. The Supreme Court of Canada has repeatedly found criminal offences of such a nature to be unconstitutional. The effect of the proposed offence in Bill C-291 is also to clearly prevent an accused from invoking available legal defences. This too raises additional charter concerns under sections 7 and 11(d), namely, the right to a full answer and defence.
Again, the Supreme Court of Canada has consistently held that such grounds of unconstitutionality cannot be saved under the charter. In other words, punishing people who cause harm but who are not morally culpable cannot be said to be “demonstrably justified in a free and democratic society”.
As I said at the outset, while I understand and appreciate the objective of Bill C-291, I believe the bill's proposed reforms are unconstitutional. As a result, the bill cannot achieve its objective of safeguarding Canadians against violence. This does not mean that Canadians are not protected by existing criminal law.
Section 238 of the Criminal Code makes it an indictable offence, with a maximum penalty of life imprisonment, to cause the death of a child while it is being born. As well, section 223 provides that where a person causes injury to a child before or during its birth, as a result of which the child dies after its birth, that person commits the offence of homicide.
Moreover, where an accused kills another person, whether the victim is pregnant or not, the accused may be charged with first degree murder or second degree murder, both of which carry a mandatory penalty of life imprisonment.
The criminal law ensures that the impact of violence perpetrated on victims is reflected by the sentence or penalty imposed in each case. In all cases, a sentencing court must consider aggravating as well as mitigating circumstances.
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The specific situation of the victim is always considered. For example, was the victim a victim of spousal abuse? If so, section 718.2 of the Criminal Code requires the sentencing court to consider this as an aggravating circumstance for sentencing purposes. Whether the victim was pregnant or the mother of one or more children will also be considered as an aggravating circumstance. Indeed, under section 722 of the Criminal Code, a sentencing court must consider a victim impact statement that has been prepared in a case that describes the harm done to, or the loss suffered by, the victim arising from the commission of the offence.
The government's commitment to Canadians does not end with merely supporting the existing criminal law. The Speech from the Throne underscores the government's commitment to get tough on crime, to tackle offenders, to bring in tougher sentences for violent and repeat offenders, particularly those involved in weapon-related crimes.
This commitment is directly relevant to Bill C-291, as I understand the bill was motivated by a case that is currently before the courts and which involved the use of a firearm. The government has already delivered on our Speech from the Throne commitment. On May 4, the Minister of Justice tabled Bill C-10, an act to amend the Criminal Code, minimum penalties for offences involving firearms, and to make a consequential amendment to another act. The reforms in Bill C-10 seek to ensure that the use of a firearm in the commission of a serious offence will be subject to a significant sentence.
Further, as the House knows, we brought in Bill C-9, which addresses the serious issue of conditional sentencing. The government is serious about getting tough on crime, about protecting victims and about ensuring that we have a criminal justice system that Canadians can have faith in.
Bill C-291 speaks to the importance of protecting Canadians against violence. It speaks to the need to ensure that our criminal law adequately reflects the serious impact of violence on all of its victims. I believe all members of the House can support these objectives. That said, our duty as parliamentarians is to ensure that we enact legislation that respects fundamental principles of Canadian law.
The government is committed to protecting Canadians and we have already taken strong measures to do so.
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Mr. Paul Szabo (Mississauga South, Lib.): Mr. Speaker, because the time is short, I want to make three points.
I want to thank the member for raising this issue, which deals with some fundamental values. It is important for Canadians to hear this discussion. It is a valid debate and I can see no better place than the Parliament of Canada for holding it.
Currently, under the laws of Canada, the fetus has no rights. It is interesting to note that the U.S. secretary of health and human services amended the regulations, which he oversees, to amend the definition of child. Now the definition of a child is a person under 19 years of age, including the period from conception to birth. The United States did this for one reason. Medical science today is doing a lot of work in terms of rectifying problems detected in a fetus prior to birth. Insurance companies were not going to pay for this because a child was defined as someone who was born. The change in the regulations took into account the fact that real work was being done that should be covered by insurance companies, and the change in the regulations did just that.
Therefore, this is not an entirely irrelevant discussion.
With regard to domestic violence, members should know that the two most prevalent periods for domestic violence are after a breakup or during pregnancy. That is a fact. Bill C-291 would have been votable had it not asked for double jeopardy or two penalties. Had the bill been worded that if the mother were injured or died and the aggressor knew she was pregnant, this would have represented aggravating circumstances, and that would have warranted stiffer penalties than otherwise would have been prescribed under the law. This would have been appropriate here and we would have had a vote.
The member is not totally offside on this issue. However, under the circumstances, it is unfortunate that the House will not have an opportunity this time to talk about these issues. It is very clear that once conception occurs, there is a virtual certainty that a child will be born.
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Mr. Leon Benoit (Vegreville—Wainwright, CPC): Mr. Speaker, I want to very briefly comment on the remarks of the member from the Bloc who tried to make my bill an abortion issue, which it is not. His speech clearly was not relevant to the debate taking place here today.
The member from the NDP tried to do that too, but at least she did bring in some honest debate on the issue. I did not agree with it, but that is fine. We carry on debates and we do not always agree with the positions taken.
Earlier this month my bill was deemed non-votable because it was declared by a committee to be clearly unconstitutional. This is quite extraordinary since at least three lawyers, with experience in criminal law, have said that it is not clear at all that it violates the charter. They were quite surprised at the decision taken by the committee.
Although the justice minister said in his opinion that it was unconstitutional, that standard is not good enough to deem a bill to be non-votable. That is an opinion from the justice minister. We see judges on both sides of a lot of issues with opinions. Therefore, clearly, the bill should not have been deemed non-votable, because it is not clearly unconstitutional. There is reason for debate on that.
The Standing Orders clearly state that in order to be deemed non-votable with respect to constitutionality, it must clearly violate the Constitution, including the charter. The committee provided no proof that my bill met that sense of certainty.
Sadly, what happened is the process was abused and the constitutional criteria was used simply as a convenient excuse when all opposition members collaborated to prevent my bill from coming to a democratic vote in the House. The reason I believe, although who can ever judge for sure, is that some people do not want to deal with this issue because they believe it is a thorny issue for some reason.
Having been through the process of having a private member's bill deemed non-votable for reasons that seem to be, to quote one lawyer's opinion on what happened, “disingenuous”, I am in a far better position than I otherwise would have been to comment on how manifestly unfair the current process is and to suggest possibilities for improvement.
The current process allows five members of the subcommittee on private members' business to decide on the votability of a private member's bill, in secret. They deemed that my bill was clearly unconstitutional without providing any information whatsoever on how the charter would supposedly be violated, nor what part of my bill was in violation. I had to guess. This is like taking someone to court and asking them to defend themselves without telling them with what they are being charged.
I went to the full committee and appealed, not knowing the reason and having no way to find out the reasons for my bill being rejected as a votable bill in the first place. How was I supposed to present any kind of a reasonable defence for what had happened?
However, even changing this is not likely sufficient to present the process from being abused, as we have seen happen with my bill. Because even after I had my chance to defend the bill to the main committee, albeit only in a generic way because I did not know exactly what the problems were supposed to be, the committee upheld the subcommittee decision. All opposition members voted against making my bill votable, in spite of the fact that it clearly was not unconstitutional. This was a sad political process to an end rather than respect the intent of private members' business, which is to have fair and honest debate on private members' bills.
If they had even said that they were unsure if it were unconstitutional, we could have debated it, voted on it and if the vote was passed, it would go to committee and amendments could be made.
I have changed the bill so that, when it comes to the House again by someone else at some time, there will be no constitutional issue whatsoever. I believe at that time it will be supported by most members in the House.
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Let me conclude by saying to Mary Talbot, the grandmother of baby Lane, and to Lane Griffith, the father of baby Lane, that we will not forget him. If there is any good at all that can come from tragedy such as the one that befell Olivia and Lane and Liana and her baby, maybe it is this: that it will encourage all people of goodwill to mobilize together in an effort to bring an end to this abysmal lack of justice that exists in Canada today toward pregnant women and the children they love.
I can see that I am out of time. I appreciate having had this time today. I look forward to a revised version of the bill coming before Parliament. It could happen at any time. Because it was deemed unvotable, it could come up again in this Parliament. I am looking forward to it and I will support the bill.
The Acting Speaker (Mr. Andrew Scheer): The time provided for the consideration of private members' business has now expired. As the motion has not been designated as a votable item, the order is dropped from the order paper.
He said: Mr. Speaker, my private member's bill, Bill C-291, is meant to protect pregnant women from violence and to protect their unborn children in an attack against the mother. In current federal criminal law an unborn child is not recognized as a victim with respect to violent crimes. This gap in federal law gives rise to grave injustices.
In November 2005 Olivia Talbot of Edmonton, who was 27 weeks pregnant with her son Lane Jr., was shot twice in the head and three times in the abdomen by a long time friend. Because Canadian law offers no legal protection for the unborn child today, no charge could be laid in the death of Baby Lane.
Another pregnant Edmonton women, Liana White, was slain by her husband in the summer of 2005. Again, no charges could be laid in the death of her baby.
Many Canadians are shocked to learn that, when an attacker kills a woman's pre-born child, no charge is laid in the death of that child, even when the attacker purposely intended to kill the child. Clearly, there are two victims in such cases, and the public recognizes this.
A Robbins SCE Research poll, conducted in December 2005, found that 78% of Canadians supported a separate homicide charge in the death of an unborn child in such cases. A Calgary Herald poll, conducted on November 30, 2005, showed 82% support.
The grieving families, who have lost their loved ones in this type of crime, only too tragically recognize that there are two victims. Just ask Mary Talbot how many victims there were when her daughter Olivia and her grandson, Baby Lane, died in November of 2005.
Any pregnant woman who survives a violent attack, but loses her pre-born child, a child she wants and loves, will grieve for that child, and no one can say she grieves for that child any less simply because that child has not yet been born.
My private member's bill seeks to address this injustice by making it a separate offence to kill or injure a pre-born child during the commission of an offence against the child's mother. Let me explain how it would do that.
In current federal law a child becomes a human being only after it is born alive, and only then does it receive protection under the law. Because children before they are born are not considered human beings, in today's criminal law they receive no legal protection whatsoever. The amendment to the Criminal Code, which I am proposing with my private member's bill, would change this so legal protection would be given not only to human beings, as defined by the Criminal Code, but also to unborn children who were harmed or killed during the commission of an offence against their mothers.
My private member's bill does not change the definition of a human being. What it does is offer protection to the unborn child, despite the definition of a human being. I believe this will also provide added protection for the pregnant woman.
Note that my bill specifically states that it applies only “while committing or attempting to commit an offence against the mother”. Why is this important? Because this terminology was used precisely so abortions would be excluded. As we have seen from reports by a few extreme media, this issue is being linked to abortion. The media seems to have more concern that it somehow is an attempt to restrict access to abortion than it does about protecting pregnant women and their unborn children. The bill has nothing to do with abortion. In fact, it is the very opposite of abortion. In the case of abortion, the woman chooses the procedure.
The bill is about protecting the children whose mothers have not chosen abortion, mothers who have chosen to carry their child to term. That is why those who truly are pro-choice will support the bill because it respects a woman's right to choose to bring her child to term in a safe environment.
Some people have argued that the Supreme Court will not allow an unborn child to have legal protection under the law because the Supreme Court has said that a fetus is not a person. This is a false interpretation of the court's rulings. It is the existing law which offers no rights to the fetus and the courts have just been applying the existing law when they have made their rulings. However, the law can be changed and that is the responsibility of Parliament, not the courts, as the Supreme Court itself has said in a number of cases.
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For example, in the case of Winnipeg Child and Family Services v. DFG in 1997 involving a glue-sniffing pregnant woman, the issue at hand was whether child protective services could force the pregnant woman into custody in order to protect her unborn child. The Supreme Court said that according to existing law the unborn child has no rights and therefore the woman could not be forced into custody. The court stated, “The law of Canada does not recognize the unborn child as a legal person possessing rights”.
The court went on to ask, “At what stage would a fetus acquire rights?”
The court said that dealing with such “thorny moral and social issues” is “better dealt with by elected legislators than the courts”.
The Supreme Court has clearly stated that the existing law does not offer legal protection for the fetus and that it is not up to the court to change the law in order to offer this protection. That is the job of Parliament.
My private member's bill addresses this issue in one very specific way, by extending protection to the unborn child who is harmed or injured when the mother is the victim of a violent crime, only in those very narrow circumstances.
Violence against women is a serious problem in our society and studies have shown that pregnancy increases the risk that a woman will be abused. When a woman is pregnant she is especially vulnerable because she has not only herself to protect and defend, but also her unborn child.
The Society of Obstetricians and Gynecologists says that physical abuse remains a frequently undetected risk factor in a large number of pregnancies and that violence begins or increases during pregnancy.
Canadian studies estimate that the prevalence of physical abuse during pregnancy is around 6%, which is extremely high, and that 64% of women abused during pregnancy reported increased abuse during pregnancy.
According to the Canadian Perinatal Surveillance System, women abused during pregnancy were four times as likely as other abused women to report having experienced very serious violence, including being beaten up, choked, threatened with a gun or knife, or sexually assaulted.
One Canadian study found that the most common area of a woman's body struck during pregnancy was the abdomen. The literature shows that “severe blunt trauma to a maternal abdomen has been shown to lead to spontaneous abortion, fetal death, placental abruption, preterm labour and delivery, and fetal injuries, such as skull fractures, intracranial hemorrhage and bone fractures”.
It is very disturbing that when a women is at her most vulnerable she is at increased risk of attack. This bill would act as a strong deterrent to perpetrating violence against a pregnant woman.
In testimony at a subcommittee hearing on the U.S. unborn victims of violence act, Tracy Marciniak, who survived a violent attack by her husband who killed her unborn child, said the following, “Before his trial, my attacker said on TV that he would never have hit me if he had thought that he could be charged with the killing of his child”. She went on to say, “If an attacker of a pregnant woman knows that they can get prosecuted for harming or killing that woman's child, they are going to think twice before they do it”. This was said by the victim of a violent attack that killed her unborn child.
What message are we sending to those who physically abuse pregnant women when we allow them to inflict such physical harm and even death on the woman's unborn child with no consequences whatsoever? The perpetrator will simply be charged with the assault on the woman, as if the child simply did not exist.
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What message are we sending to the mother of the child when we refuse to acknowledge that her offspring growing inside of her is worthy of protection? We give more protection to animals.
Before judging that statement as being over the top, I ask members to please consider this. If a person assaulted a woman who was carrying a pet cat or dog and intentionally injured or killed the pet, the person would receive the penalty for assault against the woman plus the penalty for the separate offence against the animal, which in itself could carry a prison sentence of up to six months and a fine of up to $2,000. Does anyone really believe that it is right and just that there should be a penalty for the injury or death of a pet but not for an unborn child?
The type of law that I am proposing in my private member's bill would not only act as a strong deterrent to violence, it would not only send a strong message to society that we will not condone this type of abuse on women when they are most vulnerable, but it would also bring a sense of closure to the surviving family members because it recognizes that there are two victims in such cases. Our current law, which fails to recognize a second victim in these violent attacks on pregnant women, amounts to telling Mary Talbot that she really did not lose a grandson the day that Olivia and baby Lane died. It means that we are saying to Lane Griffith, the father of the baby, that he did not really lose a son that day but baby Lane did exist. He had a name and he was loved.
The Edmonton Journal reported that baby Lane's father talked to the belly of his pregnant fiancé every night that he could and told his unborn son how much daddy loved him. Lane Griffith and his mother, Kathy Scott, held the baby after he was removed from Olivia's womb and Kathy told the Edmonton Journal “The baby was perfect looking. He was just beautiful with nice dark hair”.
I have a photograph with me here today and I challenge everyone to look at the photo and tell me how many victims they see. A beautiful young woman lies in the casket with her baby boy whose short life was ended before he ever saw the light of day, before he ever saw his mother smile and before he ever felt his father's hug.
Our law in Canada today, which gives no recognition to the tragedy that befalls a family when they lose a beloved child prior to its birth, is outdated and heartless. Again, I refer to the testimony of Tracy Marciniak, who knows only too well what it is like to have one's pre-born child killed in a violent attack. This is what she said in her testimony at the subcommittee hearing:
I know that some lawmakers and some groups insist that there is no such thing as an unborn victim, and that crimes like this only have a single victim--but that is callous and it is wrong. Please don’t tell me that my son was not a real victim of a real crime. We were both victims, but only I survived [...] I do not want to think of any surviving mother being told what I was told--that she did not really lose a baby, that nobody really died. I say, no surviving mother, father, or grandparent should ever again be told that their murdered loved one never even existed in the eyes of the law.
I agree.
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Mr. Paul Steckle (Huron—Bruce, Lib.): Mr. Speaker, more than a decade ago when I rose for the first time in this place as a newly minted MP, full of lofty ideals and untested enthusiasm, I verbally underscored my belief that all human life is sacred from the moment of conception to the moment of natural death.
Since that time I have been tested in nearly every conceivable manner. My perceptions and beliefs have been challenged and, in some instances, I have altered my positions in a manner that more accurately reflects evolving constituents' wishes and feedback or in a manner consistent with the ever-changing state of knowledge on a given subject.
That aside, my core beliefs or what I view to be absolute truths have stood the test of time and remain a constant factor in my voting record.
With the latter in mind, I am on my feet this evening but this time I will frame my remarks within the specific context of Bill C-291.
For many, Bill C-291 represents just another round in the age old abortion debate. It represents a nibbling away at the edges of the perceptions of the 1988 Supreme Court decision on the subject. I would reject any such notions and I challenge those people to lay solid evidence on the table here tonight defending that position, which I would believe to be rooted in specious logic.
First, to be absolutely clear, Bill C-291 is not a bill about abortion. It is a bill about protecting women from violence. To be precise, Bill C-291 is about protecting the choice of a woman to carry a fetus to full term. Surely we can agree that a woman has every right to make that determination.
Many Canadians do not understand that there are no protections in place for viable unborn children who, despite the mother's desire to carry to full term, are harmed or terminated at the hands of those seeking to perpetrate violent crimes. In some cases the said violence is committed in a manner specifically targeting the unborn child. This is astounding to me.
I for nearly 13 years have listened to some of my colleagues speak on the merits of a woman's right to choose but now I learn that some of those same people will not vote to protect the woman's choice if it involves the choice to keep her baby.
When the member of Parliament for Vegreville—Wainwright sought to defend this bill against irrational committee allegations that it was unconstitutional, he cited several instances to the committee where violent and criminal actions were perpetrated upon third party against prospective mothers who had chosen to carry to full term.
An example that has already been cited this evening is the one about Olivia Talbot of Edmonton who was 27 weeks pregnant with her son Lane Jr. In November 2005, Olivia was shot three times in the abdomen and twice in the head. Because we offer no legal protection for unborn children today, no charge could be laid in the death of baby Lane.
Another pregnant Edmonton woman, Liana White, was slain by her husband in the summer of 2005. Again no charges could be laid in her baby's death.
Many of my constituents and, indeed, many Canadians would be shocked to learn that when an attacker kills a woman's unborn child no charges are laid in the death of that child even when the attacker purposefully intended to kill the child.
To use the words of the member for Vegreville—Wainwright, his bill seeks to address this injustice by making it a separate offence to kill or injure a pre-born child during the commission of an offence against the child's mother. That offence would be the offence of which the person would have been found guilty had the injury or death occurred to the mother. In other words, the unborn child would be treated as if it were a human being and the existing legal protection already defined for human beings in the Criminal Code would apply.
The exact offence depends on what existing sections of the Criminal Code would apply under a specified set of circumstances. Just to be clear, Bill C-291 is not seeking to invent new offences. In the same vein I should point out that Bill C-291 actually excludes abortion. The provisions of the legislative proposal would apply only while a perpetrator is committing or attempting to commit an offence against the mother.
Again, Bill C-291 is not about limiting a choice but rather it is about instituting protections for women when they have decided that they wish to carry their child to term.
I also understand that some have objected to Bill C-291 because they have come to believe that the Supreme Court has determined that a fetus cannot be afforded the legal protections of a human being as defined by the Criminal Code. To that I would again say respectfully that notions to this effect would be inaccurate.
Currently, section 223(1) of the Criminal Code of Canada defines a human being as a child that has completely proceeded in a living state from the body of its mother. Furthermore, section 222(1) of Criminal Code of Canada defines a homicide as the act perpetrated by a person when directly or indirectly by any means causes the death of a human being. To me this seems simple enough.
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Currently the Criminal Code of Canada does not consider a fetus to be a human being as defined by the code. This proposal would seek to extend certain legal protections to the fetus in instances when the mother was being victimized in a criminal manner. This would have no impact on other debates involving fetal rights, or the greater issue of abortion in general. It would simply seek to add certain protection to women who might fall victim to violent criminal activities.
Again, while generally speaking I support a pro-life stance on the issue, in this instance I support freedom of choice, that is to say, the freedom to choose to conceive and deliver a child without threat of violence being perpetrated against prospective mothers.
I would also like to take a moment to address this notion of Bill C-291's constitutionality. I happen to believe that the committee is mistaken with respect to the state of the court's notions on the subject. Again while I do not believe that Bill C-291 is unconstitutional and I do not outright accept that it is about abortion, for the purpose of responding to claims to the contrary, I would offer the following.
First, the Supreme Court has consistently ruled that it is incumbent upon Parliament to establish parameters under which an abortion could be permitted. For example, in The Queen v. Morgentaler, Smoling and Scott in 1988, when the Supreme Court struck down the abortion law, it was done for procedural and administrative reasons only. The court clearly did not find a charter right to abortion, but rather articulated that it was up to Parliament to determine what level of protection to afford the unborn child. It said it had to be done in such a way as to balance the rights of the woman with the rights of the fetus. In that instance Chief Justice Dickson said:
I agree that protection of foetal interests by Parliament Is also a valid governmental objective. It follows that balancing these interests, with the lives and health of women a major factor, is clearly an important governmental objective.
Justice Beetz said:
I am of the view that the protection of the foetus is and, as the Court of Appeal observed, always has been, a valid objective in Canadian criminal law...I think s. 1 of the Charter authorizes reasonable limits to be put on a woman's right having regard to the state interest in the protection of the foetus.
These sentiments were echoed again in 1989 by the court in Jean-Guy Tremblay v. Chantale Daigle when the court stated:
The Court is not required to enter the philosophical and theological debates about whether or not a foetus is a person, but, rather, to answer the legal question of whether the Quebec legislature has accorded the foetus personhood....Decisions based upon broad social, political, moral and economic choices are more appropriately left to the legislature.
This was restated in 1997 in Winnipeg Child and Family Services v. G. (D.F.) In this case involving a glue-sniffing pregnant woman, the issue at hand was whether child protective services could force a pregnant woman into custody in order to protect the unborn child. As in the previous case cited, the Supreme Court said that according to the existing law, the unborn child had no rights and therefore the woman could not be forced into custody. The court stated:
The law of Canada does not recognize the unborn child as a legal person possessing rights.
The court went on to ask at what stage would a fetus acquire rights. The court said that such thorny moral and social issues were better dealt with by elected legislators than the courts.
What I am trying to say is that the Supreme Court has consistently called upon Parliament to step up to the plate and to provide the courts with guidelines with respect to fetal rights. I respectfully submit that Bill C-291 was a genuine attempt at just that.
In closing, I would unreservedly underscore my support for Bill C-291 and renew my objection to the logic that has deemed the legislation to be unvotable. I firmly believe that the process was politicized in a manner that ignored legal precedent and continuing requests from the Supreme Court on the subject. I would like to compliment the member for Vegreville—Wainwright for putting this legislation forward in the House.
Hopefully this debate will bring this matter to light in the future so that we can actually deal with the complexities of the issue rather than hide behind the politics of it.
» (1755)
[Translation]
Mr. Réal Ménard (Hochelaga, BQ): Mr. Speaker, I would also like to add to the debate by saying that all parliamentarians must keep in mind that our colleague's bill is unconstitutional. Regardless of whether one is for or against abortion, at the moment, that is the state of the law. The Supreme Court has handed down decisions and it is not possible—it is not within a parliamentarian's prerogative—to change that through a private member's bill. Of course, our colleague has the right to a debate on his bill, but we must nevertheless keep in mind that this bill is unconstitutional.
Why is it unconstitutional? Because the state of the law indicates that the first rule in right-to-life issues is that a fetus is not a human being until it is out of the womb, has drawn its first breath, and is deemed living and viable. That is the legal situation; that is what the Supreme Court has said. And what the Court has said is in line with the definition in section 223 of the Criminal Code.
Naturally, we can review the history, recall the battles fought. Nevertheless—and I invite all parliamentarians to be seized of this reality—section 223 of the Criminal Code states and declares as follows:
223. (1) A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother,
As an aside, in jurisprudence “proceeded in a living state” means that the first breath has been drawn.
—whether or not (b)it has an independent circulation;
whether or not (c) the navel string is severed.
That is the position of the law. It is not possible for a member of parliament, no matter what his or her beliefs, to table a bill that is not compatible with the provisions of the Criminal Code, which are based on a ruling made after the Canadian Charter of Rights and Freedoms was proclaimed.
Let us look at the history of abortion in Canada. In 1969, the provisions of the Criminal Code were slightly different in their approach. The 1969 provisions criminalized abortion, except in cases where approved by a therapeutic committee comprised of three doctors. There have been provisions dealing with abortion since 1777, even before the Criminal Code came into being. Since the 18th century, we have followed the practices of Great Britain and those found in common law. Since 1777, provisions have protected what we would call today the sacred nature of life.
In 1969, a legislative decision has continued to prohibit abortion, which is punishable—
[English]
Mr. Leon Benoit: Mr. Speaker, I rise on a point of order. I hesitate to interrupt the gentleman from the Bloc, but he is talking about abortion. My private member's bill has nothing to do with abortion. Relevance is an issue here.
The Acting Speaker (Mr. Andrew Scheer): It does seem to be a matter for debate and not a point of order about procedure. The hon. member for Hochelaga will continue on debate.
[Translation]
Mr. Réal Ménard: Mr. Speaker, that was not a point of order, and I hope my colleague will show the courtesy of letting me finish my speech. First of all, his bill is unconstitutional. He should at the very least have the decency to listen to his fellow parliamentarians.
Yes, there are similarities between the infraction he is proposing, which relates to killing an unborn child, and abortion. All the same, I think it is my prerogative in this House to express the point of view I wish to air on behalf of my party.
In the current state of the law, the fetus has no rights while in its mother's womb. That decision was handed down by the Supreme Court of Canada, is reflected in the Criminal Code, and is the state of the law. That means that a parliamentarian cannot question that definition through a private member's bill. I think it would have been interesting if our colleague had provided us with a legal opinion submitted by the Minister of Justice, who acknowledges that the bill is unconstitutional. It is worth noting that the minister has the same background as the member who introduced the bill.
That said, I do not wish to deny our colleague's right to draw the attention of this House to such a question. He is entitled to his point of view, and all of the members of this House have heard it. This is how things should be done in a Parliament like ours.
On the topic of rewriting history on the question of when life begins, with respect to the rights of the unborn and abortion rights, I was saying that, since 1777, there have been provisions that did not appear in the Criminal Code—since the Criminal Code did not exist until the end of the 19th century—but that protected the sanctity of human life. Later, certain changes were made. The most important change was made in 1969. At that time, we maintained criminal sanctions against abortion, except if a therapeutic committee, made up of three doctors, authorized an abortion for health reasons, linked to the mother's health.
As several members have said so far, there were a number of court challenges.
Therefore, in 1969, Parliament made several important amendments to the Criminal Code, at the time referring to section 273, which specified the time when an abortion could legally be performed. Then it could be performed with the recommendation of a therapeutic committee made up of three doctors.
The section set out criminal sanctions for doctors who did not respect the strict rules that I outlined. These rules required authorization from a therapeutic abortion committee at an accredited or approved hospital and that the abortion had to be performed at an accredited or approved hospital.
The therapeutic abortion committees had to consist of at least three doctors, none of whom could be performing abortions. That very year, in 1969, Dr. Henry Morgentaler opened his first clinic in Montreal where he performed abortions without approval from a therapeutic abortion committee. As we all know, this resulted in a legal drama—probably the most famous controversy ever.
Then 1982 saw the advent of the Canadian Charter of Rights and Freedoms, which included an article on the right to physical integrity, the right to life, liberty and, of course, security of the person. This is from article 7 of the charter, which talks about life, liberty and security of the person. This would be the legal recourse by which it would be decided, in a legal manner, that women must have control over their own bodies, and that it is not in keeping with the values in the charter to restrict the right to abortion, as the provisions in 1969 did.
That is why decisions have been handed down, which prompted the lawmaker to define what life is, when a fetus becomes a fetus, and at what point a fetus must be recognized as having rights.
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I will remind the hon. members that neither the Quebec civil code nor the major existing statutes respecting women's health recognize that, as long as it is in the mother's womb, the fetus is not considered a human being. Whether we agree or not, the fact remains that such is the current state of the law.
Our colleague's bill was deemed unconstitutional because clause 2, as amended, states, “It is not a defence” to a person charged with an offence set out in the Criminal Code, namely causing the death or injuring the unborn child of a pregnant woman, “ that (a) the child is not a human being; (b) the accused did not know that the person was pregnant”.
Can hon. members see how profoundly incompatible this bill is with the Criminal Code and the courts of law—
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[English]
The Acting Speaker (Mr. Andrew Scheer): Resuming debate, the hon. member for London--Fanshawe.
Mrs. Irene Mathyssen (London—Fanshawe, NDP): Mr. Speaker, after all this time, and all the debates about a woman's right to choose, and the securing of those rights under the law, here we are again talking about this issue.
Bill C-291 proposes changes to the Criminal Code that are unnecessary and will potentially jeopardize a woman's right to choose. The proposed amendment would have two charges laid against a person who kills a pregnant woman. This would, in effect, give legal rights to a fetus and change the definition of when a fetus becomes a person under the law. Currently, a fetus is not considered a person or a human being until actual live birth.
While I will not argue that harming or murdering a pregnant woman is a particularly abhorrent crime, this bill will in the end do more harm than good for women's rights in Canada.
Some may contend that this bill has nothing to do with abortion and is just about ensuring that someone who murders a pregnant woman will pay doubly for his or her crime. However, this bill is the thin edge of the wedge, as it will change the definition of when a fetus becomes a person. This change will have an effect on the legal status of abortions in Canada.
This is not something that needs to be opened up for debate once again. Canadian women fought long and hard for the right to safe, legal abortions in Canada. Women have been forced to put their private lives under scrutiny in the courts in the fight for the right to choose.
If we take away that right, women in desperate situations will have to take desperate measures, such as a young woman in 1989. While the federal government debated making non-emergency abortions illegal, this young woman bled to death after attempting to perform an abortion on herself.
This bill is nothing but a thinly veiled attempt to make abortions illegal in Canada. I am extremely disappointed that the Conservative government would use the tragic murders of young women to push its abortion agenda.
This bill calls into question a judge's ability to take mitigating circumstances into account. Courts already take aggravating circumstances into account when deciding on sentences for crimes and would most likely consider injury to or death of an unborn child to be a serious aggravating circumstance.
Furthermore, two separate offences would not necessarily equal more jail time. In Canada, unlike the United States, multiple sentences are often served concurrently.
I bring up our neighbour to the south for a reason. As many of my colleagues well know, this type of bill has been passed in several states. This type of bill does have some impact there, as jail sentences are often served consecutively, increasing the time served.
I would also like to note that the United States is the same country where there is an active attempt to ban access to abortion for American women at both the state and the federal level. The supporters of this type of bill are the very same people actively working to ban abortions.
The evidence is clear. To date, the courts across Canada have blocked provincial attempts to substantially regulate the issue of abortion, finding that the pith and substance of such attempts is actually an attempt to recriminalize abortion through the back door.
And recriminalizing through the back door appears to be the intention of this bill. Bill C-291 puts the legal status of an unborn child into question. First, Bill C-291 does not refer to an unborn child in the same manner as other sections of the Criminal Code. Section 223 states that a child becomes a human being when it is born alive, and section 238 refers to “a child that has not become a human being”.
By contrast, Bill C-291 refers to “a child before or during its birth”. Not only is this terminology generally inconsistent with the approach taken to the fetus in the Criminal Code as a whole, but it is also inconsistent with terminology used in section 238 itself, the provision it is amending.
Bill C-291 essentially represents an indirect recognition of an unborn child as a human being. Such an initiative could have significant ramifications in a number of different areas of law.
Recognition of an unborn child as a human being indirectly leads to its recognition as a person with legal status. If an unborn child becomes defined as a person with rights, it opens a Pandora's box in the abortion debate.
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Recognition of an unborn child as a person would also have a significant impact on tort law and other areas of the common law. Numerous cases have been commenced in the past on behalf of unborn children. They have not been successful because the law does not recognize the fetus as a person with legal status. Any change to this status in the criminal law could potentially have wide ranging implications in common law.
The proposed amendment will also have a significant impact on the mens rea or the intent of the accused. Mens rea includes issues such as the accused's perception of the risk or legal consequence of his or her actions.
The amendment states that it is not a defence that the unborn child is not a human being, that the accused did not know that the mother was pregnant, or that the accused did not mean to injure or cause the death of the unborn child.
Bill C-291 essentially eliminates the intention requirement, and the lack of intention defence appears contrary to the fundamental elements of criminal law.
There is a “thin skull rule” in criminal law which already states that a person who inflicts more than trivial bodily harm must take the victim as he or she found the victim; for example, with a medical condition that leads to more serious consequences to that bodily harm. In other words, judges already have the ability to consider a pregnancy.
Bill C-291 goes beyond this to create an entirely separate offence that eliminates the lack of intention defence inherent to all criminal law. While it may be argued that intent to injure the mother fulfills the mens rea requirement for this separate offence, this is a potentially tenuous link that would likely be challenged in the courts.
It is obvious why this bill was ruled non-votable. Not only is it a veiled attempted to make abortions illegal in Canada, but it would make a significant change to our legal system that is neither necessary nor welcome.
The Conservative Party continues to repeat that it is keeping its election promises, yet its members are bringing bills to the House that directly contradict that platform. I would like to quote directly from what the government has said:
A Conservative government will not initiate or support any legislation to regulate abortion.
This bill does exactly that. It initiates legislation that will essentially regulate abortion in Canada by changing the definition of the legal status of a fetus. It opens the door to making abortion illegal in Canada.
A woman's right to choose was hard fought, and it would be detrimental to Canadian women and an international embarrassment to remove that right. The Conservatives are not standing up for Canadian women by tabling bills that will impact on a woman's right to choose.
Taking away a woman's right to choose will not reduce violence and will not make this a better world. It will only remove her freedom. That simply is unacceptable.
Mr. Rob Moore (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, CPC): Mr. Speaker, I rise today to speak to Bill C-291, a bill that proposes to amend the Criminal Code to create a new offence of injuring or killing a child before or during its birth while committing an offence against the pregnant mother.
I believe, at its core, the bill is about ensuring that our criminal law strongly condemns and holds fully accountable those who commit violent acts against others, particularly against persons who are more vulnerable to violence. The evidence is clear that pregnant women are more likely to be victims of assault by their partners than other similarly situated women. These objectives are strongly supported by Canadians and, indeed, are reflected in the government's priority of getting tough on crime.
At the outset, I understand and support the message that Bill C-291 seeks to send to would-be offenders. If we are to achieve this important objective, we must seek to do so in a way that is consistent with fundamental principles of criminal law and that conforms with our constitutional law. If we do anything less, if we support legislative reform that does not follow the contours of our Constitution and its conventions, then we in fact fail to provide Canadians with the very protection against violence we seek to provide.
That is why the government cannot support Bill C-291. Although it appreciates the its intent, we believe its proposed reforms are in fact unconstitutional and, as a result, cannot do what it purports to do. It cannot succeed in providing the additional protection against personal violence, which we all agree Canadians want and deserve.
Bill C-291 proposes to create a new criminal offence. Under the bill, a person who injures or kills a child before or during its birth, while committing or attempting to commit an offence against the mother who is pregnant with that child, could be charged with the same offence against the child. Under Bill C-291, an accused could be charged with such an offence without knowledge that the mother was pregnant and without the accused intending to injure or kill the child. Therein lies the problem.
Bill C-291 proposes to create a new offence that would apply even though an accused did not intend to commit a crime. One of the fundamental principles of criminal law is that persons are not punished simply because harm was done, but rather because they are morally culpable for causing that harm. Therefore, a criminal offence may only be committed where there is both a guilty act and a guilty mind. There must be an intention to commit the act, as well as the commission of the act itself.
An offence that does not require a guilty mind and that requires only a guilty act is called an “absolute liability offence”. The Supreme Court of Canada has repeatedly found criminal offences of such a nature to be unconstitutional. The effect of the proposed offence in Bill C-291 is also to clearly prevent an accused from invoking available legal defences. This too raises additional charter concerns under sections 7 and 11(d), namely, the right to a full answer and defence.
Again, the Supreme Court of Canada has consistently held that such grounds of unconstitutionality cannot be saved under the charter. In other words, punishing people who cause harm but who are not morally culpable cannot be said to be “demonstrably justified in a free and democratic society”.
As I said at the outset, while I understand and appreciate the objective of Bill C-291, I believe the bill's proposed reforms are unconstitutional. As a result, the bill cannot achieve its objective of safeguarding Canadians against violence. This does not mean that Canadians are not protected by existing criminal law.
Section 238 of the Criminal Code makes it an indictable offence, with a maximum penalty of life imprisonment, to cause the death of a child while it is being born. As well, section 223 provides that where a person causes injury to a child before or during its birth, as a result of which the child dies after its birth, that person commits the offence of homicide.
Moreover, where an accused kills another person, whether the victim is pregnant or not, the accused may be charged with first degree murder or second degree murder, both of which carry a mandatory penalty of life imprisonment.
The criminal law ensures that the impact of violence perpetrated on victims is reflected by the sentence or penalty imposed in each case. In all cases, a sentencing court must consider aggravating as well as mitigating circumstances.
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The specific situation of the victim is always considered. For example, was the victim a victim of spousal abuse? If so, section 718.2 of the Criminal Code requires the sentencing court to consider this as an aggravating circumstance for sentencing purposes. Whether the victim was pregnant or the mother of one or more children will also be considered as an aggravating circumstance. Indeed, under section 722 of the Criminal Code, a sentencing court must consider a victim impact statement that has been prepared in a case that describes the harm done to, or the loss suffered by, the victim arising from the commission of the offence.
The government's commitment to Canadians does not end with merely supporting the existing criminal law. The Speech from the Throne underscores the government's commitment to get tough on crime, to tackle offenders, to bring in tougher sentences for violent and repeat offenders, particularly those involved in weapon-related crimes.
This commitment is directly relevant to Bill C-291, as I understand the bill was motivated by a case that is currently before the courts and which involved the use of a firearm. The government has already delivered on our Speech from the Throne commitment. On May 4, the Minister of Justice tabled Bill C-10, an act to amend the Criminal Code, minimum penalties for offences involving firearms, and to make a consequential amendment to another act. The reforms in Bill C-10 seek to ensure that the use of a firearm in the commission of a serious offence will be subject to a significant sentence.
Further, as the House knows, we brought in Bill C-9, which addresses the serious issue of conditional sentencing. The government is serious about getting tough on crime, about protecting victims and about ensuring that we have a criminal justice system that Canadians can have faith in.
Bill C-291 speaks to the importance of protecting Canadians against violence. It speaks to the need to ensure that our criminal law adequately reflects the serious impact of violence on all of its victims. I believe all members of the House can support these objectives. That said, our duty as parliamentarians is to ensure that we enact legislation that respects fundamental principles of Canadian law.
The government is committed to protecting Canadians and we have already taken strong measures to do so.
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Mr. Paul Szabo (Mississauga South, Lib.): Mr. Speaker, because the time is short, I want to make three points.
I want to thank the member for raising this issue, which deals with some fundamental values. It is important for Canadians to hear this discussion. It is a valid debate and I can see no better place than the Parliament of Canada for holding it.
Currently, under the laws of Canada, the fetus has no rights. It is interesting to note that the U.S. secretary of health and human services amended the regulations, which he oversees, to amend the definition of child. Now the definition of a child is a person under 19 years of age, including the period from conception to birth. The United States did this for one reason. Medical science today is doing a lot of work in terms of rectifying problems detected in a fetus prior to birth. Insurance companies were not going to pay for this because a child was defined as someone who was born. The change in the regulations took into account the fact that real work was being done that should be covered by insurance companies, and the change in the regulations did just that.
Therefore, this is not an entirely irrelevant discussion.
With regard to domestic violence, members should know that the two most prevalent periods for domestic violence are after a breakup or during pregnancy. That is a fact. Bill C-291 would have been votable had it not asked for double jeopardy or two penalties. Had the bill been worded that if the mother were injured or died and the aggressor knew she was pregnant, this would have represented aggravating circumstances, and that would have warranted stiffer penalties than otherwise would have been prescribed under the law. This would have been appropriate here and we would have had a vote.
The member is not totally offside on this issue. However, under the circumstances, it is unfortunate that the House will not have an opportunity this time to talk about these issues. It is very clear that once conception occurs, there is a virtual certainty that a child will be born.
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Mr. Leon Benoit (Vegreville—Wainwright, CPC): Mr. Speaker, I want to very briefly comment on the remarks of the member from the Bloc who tried to make my bill an abortion issue, which it is not. His speech clearly was not relevant to the debate taking place here today.
The member from the NDP tried to do that too, but at least she did bring in some honest debate on the issue. I did not agree with it, but that is fine. We carry on debates and we do not always agree with the positions taken.
Earlier this month my bill was deemed non-votable because it was declared by a committee to be clearly unconstitutional. This is quite extraordinary since at least three lawyers, with experience in criminal law, have said that it is not clear at all that it violates the charter. They were quite surprised at the decision taken by the committee.
Although the justice minister said in his opinion that it was unconstitutional, that standard is not good enough to deem a bill to be non-votable. That is an opinion from the justice minister. We see judges on both sides of a lot of issues with opinions. Therefore, clearly, the bill should not have been deemed non-votable, because it is not clearly unconstitutional. There is reason for debate on that.
The Standing Orders clearly state that in order to be deemed non-votable with respect to constitutionality, it must clearly violate the Constitution, including the charter. The committee provided no proof that my bill met that sense of certainty.
Sadly, what happened is the process was abused and the constitutional criteria was used simply as a convenient excuse when all opposition members collaborated to prevent my bill from coming to a democratic vote in the House. The reason I believe, although who can ever judge for sure, is that some people do not want to deal with this issue because they believe it is a thorny issue for some reason.
Having been through the process of having a private member's bill deemed non-votable for reasons that seem to be, to quote one lawyer's opinion on what happened, “disingenuous”, I am in a far better position than I otherwise would have been to comment on how manifestly unfair the current process is and to suggest possibilities for improvement.
The current process allows five members of the subcommittee on private members' business to decide on the votability of a private member's bill, in secret. They deemed that my bill was clearly unconstitutional without providing any information whatsoever on how the charter would supposedly be violated, nor what part of my bill was in violation. I had to guess. This is like taking someone to court and asking them to defend themselves without telling them with what they are being charged.
I went to the full committee and appealed, not knowing the reason and having no way to find out the reasons for my bill being rejected as a votable bill in the first place. How was I supposed to present any kind of a reasonable defence for what had happened?
However, even changing this is not likely sufficient to present the process from being abused, as we have seen happen with my bill. Because even after I had my chance to defend the bill to the main committee, albeit only in a generic way because I did not know exactly what the problems were supposed to be, the committee upheld the subcommittee decision. All opposition members voted against making my bill votable, in spite of the fact that it clearly was not unconstitutional. This was a sad political process to an end rather than respect the intent of private members' business, which is to have fair and honest debate on private members' bills.
If they had even said that they were unsure if it were unconstitutional, we could have debated it, voted on it and if the vote was passed, it would go to committee and amendments could be made.
I have changed the bill so that, when it comes to the House again by someone else at some time, there will be no constitutional issue whatsoever. I believe at that time it will be supported by most members in the House.
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Let me conclude by saying to Mary Talbot, the grandmother of baby Lane, and to Lane Griffith, the father of baby Lane, that we will not forget him. If there is any good at all that can come from tragedy such as the one that befell Olivia and Lane and Liana and her baby, maybe it is this: that it will encourage all people of goodwill to mobilize together in an effort to bring an end to this abysmal lack of justice that exists in Canada today toward pregnant women and the children they love.
I can see that I am out of time. I appreciate having had this time today. I look forward to a revised version of the bill coming before Parliament. It could happen at any time. Because it was deemed unvotable, it could come up again in this Parliament. I am looking forward to it and I will support the bill.
The Acting Speaker (Mr. Andrew Scheer): The time provided for the consideration of private members' business has now expired. As the motion has not been designated as a votable item, the order is dropped from the order paper.
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