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

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

Sponsor

Cathay Wagantall  Conservative

Introduced as a private member’s bill. (These don’t often become law.)

Status

Defeated, as of Oct. 19, 2016

Subscribe to a feed (what's a feed?) of speeches and votes in the House related to Bill C-225.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Criminal Code to make it an offence to cause injury or death to a preborn child while committing or attempting to commit an offence against a pregnant woman and to add pregnancy as an aggravating circumstance for the purpose of sentencing.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Votes

Oct. 19, 2016 Failed That the Bill be now read a second time and referred to the Standing Committee on Justice and Human Rights.

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

May 2nd, 2016 / 11:50 a.m.
See context

Liberal

David Graham Liberal Laurentides—Labelle, QC

Mr. Speaker, I very much want to address the private member's bill, Bill C-225, an act to amend the Criminal Code, injuring or causing the death of a preborn child while committing an offence, at second reading.

The sponsor introduced the bill in response to the murder of Cassandra Kaake, who was seven months pregnant with a girl she intended to name Molly.

First, I would like to offer my deepest sympathies to Ms. Kaake's family. Such an incredible loss must cause the deepest of suffering.

Sadly, statistics show that pregnant women often experience violence. According to the Statistics Canada 2009 general social survey, 11% of female spousal violence victims were pregnant during the violent incident, which amounts to about 63,300 pregnant women who were violently victimized by their spouses in the five years preceding 2009.

Police-reported data from the homicide survey also show that pregnancy is not a protective factor in intimate partner homicide. From 2005, the year data first became available on whether a homicide victim was pregnant, to 2010, 12 intimate partner victims were pregnant at the time of their death.

However, as the case of Ms. Kaake shows us, homicide during pregnancy is not limited to intimate partners, as eight pregnant women were killed by someone other than their intimate partner—the source being “Family violence in Canada: A statistical profile, 2010”, a Statistics Canada Juristat article. These numbers are a serious cause for concern.

Bill C-225's objective is to protect pregnant women and their fetuses by making it a separate offence to cause injury or death to the pregnant woman's fetus. The penalties vary, depending upon the mental state of the accused, but range from 18 months' imprisonment to life imprisonment; and where the accused intends to cause injury or a death, a mandatory minimum penalty of 10 years would be imposed.

Other elements of the bill would include non-application of the mandatory minimum if the accused were provoked in committing the offence, within the meaning of the defence of provocation under section 232 of the Criminal Code, and codifying abuse of a pregnant woman as an aggravating factor for sentencing purposes.

Although I appreciate the bill's objectives, I have a number of concerns with its proposed reforms.

First, it does not make sense to make the same conduct both an aggravating factor for sentencing purposes and the subject matter of a separate offence. It should be one or the other. Sentencing judges already consider abuse of a pregnant woman as an aggravating factor, resulting in lengthier sentences for offenders.

In particular, I am concerned that making harm to a fetus the subject matter of a separate offence could actually result in shorter jail time, since a sentence for harm done to the mother and a sentence for harm done to the fetus are likely to be served concurrently, given that they necessarily arise from the same event.

In contrast, if an offender is charged with one offence against the mother and her pregnancy is considered as an aggravating factor, the sentence is likely to be longer than a sentence served concurrently for two separate offences. Serving shorter sentences than are currently imposed under existing law could not be the bill's intended effect, as this would mean less protection for pregnant women.

I am also concerned about the bill's mandatory minimums. Except for the mandatory minimum for murder, 10 years would be the longest mandatory minimum in the Criminal Code.

We are all well aware of the Supreme Court of Canada's 2015 Nur decision, which struck down a three-year mandatory minimum for gun crimes. More recently, the Supreme Court of Canada's decision in the Lloyd case struck down a one-year mandatory minimum for drug trafficking involving repeat offenders.

Indeed, there has been a proliferation of litigation challenging mandatory minimums, with lengthier mandatory minimums and mandatory minimums that apply to a broad range of conduct attracting a higher level of scrutiny.

I wonder whether imposing a mandatory minimum is the most effective way to address the severity of harming pregnant women, especially when judges are already factoring in the severity of that conduct when imposing sentences on offenders.

Another concern is the bill's reference to the provocation defence. Normally, this defence reduces murder to manslaughter where the victim provoked the accused into killing, to allow greater discretion in sentencing. However, the bill proposes to make the defence applicable to an offence that is not murder.

Obviously, a fetus—the proposed victim of the offence—cannot provoke a person; so the intent of the proposed reform must be to remove the application of the 10-year mandatory minimum where the accused's conduct is provoked by the fetus' mother.

In creating a new offence for harm done to the fetus, the bill would treat the fetus as a victim separate from its mother but then, through its provocation defence proposal, the bill would provide less protection to the fetus due to the conduct of its mother. Such an approach seems internally inconsistent.

Moreover, the provocation defence has only ever applied to murder. Expanding the application of the defence to other offences could set an unfortunate precedent, especially since the defence has been invoked by men who killed their current or former female partners after alleging that they were provoked by conduct they perceived as insulting or offensive. Although the defence was recently narrowed, it may still raise some of these same issues.

However, my overarching concern is that the bill treats the fetus as a separate entity from its mother, when in fact the two are indivisible. This creates multiple legal problems, such as the one I described earlier regarding the provocation defence. Also, creating a separate offence for harm done to the fetus gives the fetus a status not currently recognized in law and detracts from the real issue: violence against pregnant women.

The long-standing legal principle that fetuses do not possess rights independent from their mothers until born alive requires the law to focus on this very real and pressing issue. Significantly, this principle is also at the root of a woman's right to choose.

Ever since the Supreme Court of Canada struck down the Criminal Code's abortion provision in 1988, abortion services have been a health care matter because the Supreme Court of Canada found that restricting access to a woman's right to choose implicates women's section 7 charter rights. I would not want us to develop laws or policies that could in any way erode these rights.

Although Bill C-225 does not directly address a woman's right to choose, its provisions would give fetuses a status in law that is separate from their mothers, despite the fact that, in reality, the two cannot be separated. In my opinion, the best way to protect fetuses is to protect their mothers, and that is what existing law already does.

I am pleased that the government has committed to strengthening Canada's approach to the main issue here, violence against women, including pregnant women. I look forward to the results of the government's criminal justice system review and its implementation of the federal gender violence strategy and action plan, which should provide greater support and protection to women subjected to violence.

Although Bill C-225 raises many concerns, I cannot support this bill given its real-world effects beyond the bill's intended scope. I want to thank the sponsor for giving me the opportunity to speak today and discuss the critical issue of women's safety and well-being. These are pressing issues that require ongoing examination and analysis.

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

May 2nd, 2016 / 11:55 a.m.
See context

NDP

Sheila Malcolmson NDP Nanaimo—Ladysmith, BC

Mr. Speaker, I first want to acknowledge the terrible tragedy that gave rise to this bill. Our hearts go out to Jeff Durham, his family, and his community for such a terrible loss.

Despite the good intentions of the bill's sponsor, this bill has the unintended consequence of reopening Canada's debate on abortion, and New Democrats will not risk jeopardizing a woman's right to choose. There are 36 pro-choice groups across Canada—and if I had time, I would read the really long list—all opposing the passage of this bill, describing it as an interference with a woman's constitutional right to choose.

To make the most women and children safe, my proposal is that the kind of legislation Canada needs is much more broad. The best way to protect the most women and children is to take action on gender-based domestic violence against women. Cassie was killed by a stranger, and she is an exception. Nine in 10 women victims are murdered by someone they knew. Therefore, to have the most impact, let us take action to prevent women from being killed by their partners and acquaintances.

First, Canada needs a national plan to end violence against women. Most other western countries have this. Canada is falling behind. New Democrats have led on this issue over the past sessions of Parliament. NGOs and labour organizations have developed a very strong blueprint that charts the way forward. We urge the government across the aisle to take action early on this, and we will stand together on that.

Second, Canada needs more investment in domestic violence shelters. Imagine a woman making a decision to take her children and leave a violent marriage or relationship and then, when arriving at a domestic violence shelter, being told there is no room for her. This is what last week's release of the “Shelter Voices” survey said. Almost three out of four women are turned away due to lack of capacity. With stable, predictable, multi-year funding, both for building and operating, we could prevent women from having to stay in a violent situation.

Because of the strong actions that Parliament can take to truly make women and their children safer without inadvertently jeopardizing a woman's constitutional right to choose, I will not support this bill, and I urge parliamentarians to work together on what will truly make a difference on the ground in women's safety every day.

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

May 2nd, 2016 / noon
See context

Conservative

Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB

Mr. Speaker, I appreciate the opportunity to address this very important issue and to distill out what is some confusion on the other side of the House. We hear constant efforts by the other side to conflate this very important issue of criminal justice, as the member for St. Albert—Edmonton and the sponsoring member said very ably, with something else, which is the issue of abortion which we know is very contentious and very difficult in this country.

We should be able to have a rational conversation about issues that are different, that are unrelated to abortion, that still touch on justice and still touch on preventing violence against women. It is important that we be able to make these distinctions because when it comes down to these issues, there are two separate questions we can talk about. There is the question about the basic rights of individuals, in this case of preborn children, and then there is the separate question of whether or not the rights of the mother exceed or supersede the rights of that preborn child. What is maybe missed by other hon. members is that these are very clearly two separate questions.

One could come to the conclusion that preborn children should have no rights, should have no acknowledged status as persons, but one could also come to the conclusion that there is clearly some genuine humanity to that preborn child, even if one further concluded that the rights of the mother ought to supersede the rights of the unborn child in that case.

The importance of understanding that these are two separate questions really has been missed by the other side. Members instead infer from the fact that one philosophical conclusion might be drawn in the case of preborn children, that therefore we cannot take this action because it might be inferred to mean something else later on down the road.

The members on our side who have spoken to this issue have already been very clear on that point. They have underlined that we are talking about a particular issue which is addressing violence against women and also recognizing that there is a loss of life involved and that there is a loss of women's choice involved as well.

It is a little disappointing to see members of other parties wanting to stir up these hot button debates when this really should be something on which there is a consensus. I do not think that any member would disagree with the basic philosophical proposition that an unborn human child is in some sense human and can be recognized to be as such without opening up a separate and distinct philosophical question around the rights of women.

The lack of acknowledgement of these separate questions is a problem, and let us be clear that it is a problem with some real practical consequences, with some real implications. Those implications have been laid out well, not only by my colleagues, but by members from other parties who understand the problem of violence against women, who understand the pressing need to address it, to overcome long-standing perhaps cultural ideas that have not addressed this properly in the past. There should be consensus. I look forward to working with members from all sides on this issue.

Before getting elected, I served on the board of an organization called Saffron in my riding which is working to address bullying and violence against women and sexual violence. It is great to see in my community and other communities that this obviously is an issue where there is a consensus across parties and across different political philosophies and perspectives.

From what some other members are saying, it is disappointing because if we do not pass the bill, then we will have missed a very good opportunity. We will have missed an opportunity to do something good. We will have missed an opportunity to make a difference for families who are victims and a difference for potential victims as well. We will have missed this opportunity because instead of confronting an important issue in a concrete, effective way, and members are welcome to propose amendments on some of the specific details that have been mentioned at the committee stage, but by simply rejecting it out of hand, an opportunity will have been missed to make a real positive difference when it comes to something that we should all agree is very important.