Bill C-291 (Historical)

An Act to amend the Criminal Code (injuring or causing the death of a child before or during its birth while committing an offence)

This enactment amends the Criminal Code by imposing, on a person who injures or causes the death of a child before or during its birth while committing or attempting to commit an offence against the mother who is pregnant with the child, the same punishment that the person would have received had the death or injury occurred to the mother.

Protection of Pregnant Women and Their Preborn Children Act (Cassie and Molly's Law)

[Bill Blair, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I rise today to join in the second reading debate of the private member's bill, Bill C-225, an act to amend the Criminal Code, injuring or causing the death of a pre-born child while committing an offence.

I would like to begin by acknowledging the member for Yorkton—Melville for her compassion and sincerity in bringing the bill forward. I also want to assure her that I have listened very carefully to her speech. In addition, I have read her bill very carefully and I have also examined some of the case law and some of the preceding matters brought before the House.

Bill C-225 would make it a separate offence to cause injury or death to a fetus during the commission of an offence against the fetus' mother. Similar reforms, but not identical, have been proposed by two former private members' bills before the House: Bill C-484, An Act to amend the Criminal Code (injuring or causing the death of an unborn child while committing an offence); and Bill 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). Bill C-484 died on the Order Paper in 2008, and Bill C-291 was designated a non-votable item in 2006 because it was deemed not charter compliant.

Unlike these previous private members bills, Bill C-225 seeks to codify abuse of a pregnant woman as an aggravating factor for sentencing purposes. We can all agree that protecting women from violence, including pregnant women, is a pressing objective. I, quite frankly, have spent much of my adult life in attempting to deal with issues of domestic violence and the protection of the most vulnerable citizens in our society, in particular women and pregnant women.

However, I am concerned that most of the proposals in Bill C-225 will not ultimately meet this objective. In order to reach this objective, the focus must be placed upon violence against women and not on the fetus. In fact, by focusing on the fetus, we may have the unintended effect of negatively impacting women, in particular women's right to choose. Please allow me to explain.

First, providing protection from violence to pregnant women would likely involve ensuring longer sentences in these types of cases. However, sentencing an offender for two separate offences in cases involving abuse of a pregnant woman, one for the harm caused to the fetus and the other for harm caused to its mother, will very likely result in not a longer sentence since sentences are generally served concurrently in cases involving two convictions arising out of the same set of facts or series of events. In other words, it is unlikely the convictions for two offences would result in a lengthier sentence than a conviction for one offence under these aggravating circumstances.

Second, the law already protects pregnant women from violence. First and foremost, case law shows that abusing pregnant women in committing an offence is already considered an aggravating factor for sentencing purposes and is punished severely. As an example, in 2015, the Ontario Superior Court of Justice in R. v. Grandine, a 15-year sentence was imposed and the offender convicted of manslaughter in the killing of his 20-week pregnant wife. In that case, the judge very specifically stated, “...I consider the fact that the deceased was pregnant to be an aggravating factor”.

Acts of violence against pregnant women are already addressed by existing criminal law in several ways.

Subsection 223(2) and section 238 of the Criminal Code, which carry a maximum penalty of life in prison, prohibit causing the death of a child, who has not become a human being, in the act of birth under certain circumstances. Subsection 223(1) of that section provides that a child becomes a human being when it has completely proceeded, in a living state, from the body of its mother...”.

The Criminal Code contains comprehensive assault and homicide offences which apply to violent acts against pregnant women, and case law shows that abusing a pregnant woman in committing an offence is considered an aggravating factor for sentencing purposes and is punished severely.

I realize that Bill C-225 would not directly impact a woman's right to choose. However, because its proposed offences apply to a fetus at any stage of its development before birth, which means they could apply from the moment of conception, they give the fetus a status that is not currently recognized in law.

Moreover, unlike Bill C-484, Bill C-225, as the member for Yorkton—Melville has mentioned, does not specify that its proposed offences do not apply to cases involving lawful termination of pregnancy, persons acting in good faith to take steps to preserve the life of the mother or the fetus, or any act of omission by the mother.

The fact that the bill's proposed reforms indirectly implicate women's rights issues is deeply problematic in my view. The possibility of restricting a woman's right to choose was decided by the Supreme Court of Canada in 1988 in the Morgentaler decision, and we have known for quite some time now that any kind of limit on access to abortion implicates women's section 7 charter rights.

A woman is indivisible from her fetus. Protecting her necessarily means protecting her fetus. We must therefore focus on protecting pregnant women from the violence that they experience, and supporting legislative changes that may lead to a loss of a woman's section 7 charter rights is not the answer to the serious problem of violence against pregnant women. Simply put, gender-based violence has no placed in our society.

Our government has committed to addressing violence against women in all of its forms. A federal gender violence strategy and action plan is being developed which will include measures to better protect victims of domestic violence. This approach will include prevention, support for victims and appropriate criminal justice responses. Examining this issue through the violence against women lens is the best way to ensure the protection of pregnant women.

The criminal law already treats abuse of pregnant women very seriously. Judges routinely consider abuse of pregnant women as an aggravating factor for sentencing purposes. While there may be some merit in ensuring that this is clearly stated in the Criminal Code, I am not convinced that Bill C-225 is the right legislative vehicle to effect that, since the bill's main purpose is to protect the fetus by creating separate offences for those who would cause it harm, not to protect pregnant women by codifying a principle already routinely applied by sentencing judges.

I acknowledge the very good intentions of Bill C-225. I acknowledge the compassion and sincerity that the member has demonstrated in bringing this matter forward. However, with great respect, I do not think it would achieve the important objective of protecting pregnant women. Therefore, I will be opposing it for the following reasons.

The criminal law already takes violence against women, including pregnant women, very seriously. The bill fails to address the broader issues of violence against women. In addition, it is very likely in my opinion that the bill would be challenged under the charter.

I would like to thank the sponsor for bringing this important issue forward for debate. Violence against women is a terrible crime and impacts us all. It has no place in our society and I join with the member in condemning it.

Criminal Code

[Leon Benoit, Conservative, Vegreville—Wainwright, AB]

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.

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.

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.

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.

Procedure and House Affairs

[Gary Goodyear, Conservative, Cambridge, ON]

Mr. Speaker, I wish to present the 10th report of the Standing Committee on Procedure and House Affairs.

Pursuant to Standing Order 92(3), the committee recommends that Bill 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 designated a non-votable item.

As well, Mr. Speaker, I have the honour to present the 11th report of the Standing Committee on Procedure and House Affairs regarding the associate membership of committees of the House.

If the House gives its consent, I move that the 11th report of the Standing Committee on Procedures and House Affairs be concurred in.

Criminal Code

[Leon Benoit, Conservative, Vegreville—Wainwright, AB]

moved for leave to introduce Bill 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).

Mr. Speaker, current laws protect women who are victims of violence, or at least they are meant to do that. However, if a woman makes a choice to keep her child, there is no protection under current law for that unborn child.

Olivia Talbot, a young woman from Edmonton with her whole life ahead of her, had chosen to keep her child and raise a family. An ex-boyfriend brutally shot and killed her and then shot and killed her unborn child.

This bill would make it a separate offence to kill or injure an unborn child while committing a violent crime against its mother. I look forward to support from all parties for this bill.

(Motions deemed adopted, bill read the first time and printed)