Thank you, Mr. Chair.
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. That is important to note, that it's only in the case where an offence has been committed against the child's mother. That offence will be the offence of the person who would have been found guilty had the injury or death occurred to the mother. In other words, the unborn child will 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.
So the exact offence depends on what existing sections of the Criminal Code would apply under specific circumstances--e.g., murder, manslaughter.
I want to make the point that this bill excludes abortion. Note that the bill specifically states that it applies only “while committing or attempting to commit an offence against the mother”. It says that clearly. Why is this important? Because this terminology was used precisely so that abortions would be excluded, and as we have seen from media reports, this issue has already been linked, by a few members of the media, to abortion.
Some people are worried that it somehow is an attempt to restrict access to abortion. But this bill has nothing to do with abortion. In fact, it is the very opposite to abortion. In the case of abortion, the woman chooses the procedure. This bill is about protecting those children whose mothers have not chosen abortion--mothers who have chosen to carry their children to term.
When a woman is pregnant she is especially vulnerable, because she has not only herself to protect and defend but her unborn child as well. The Society of Obstetricians and Gynaecologists says that physical abuse remains a frequently undetected risk factor in a large number of pregnancies, and that violence begins or increases 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 knife or a gun, or sexually assaulted.
It is very disturbing that when a woman is at her most vulnerable, she is at an increased risk of attack. This bill will act as a strong deterrent to perpetrating violence against pregnant women.
Now to the issue of the constitutionality and the charter. Again, I am working with very little information as to why the subcommittee determined that my bill was clearly against the Constitution, and that's the level that is required; it has to be clearly against the Constitution for this bill to be non-votable. I have to do a little bit of guessing here. I'm guessing that it could have something to do with the status of the pre-born child in current law.
I say this simply because whenever the issue of legal protection of the fetus is brought up--for example, in recent media reports on my private member's bill--the issue of personhood is raised. People refer to the fact that the Supreme Court has declared that the fetus is not a person. The court did say this, but that does not make this private member's bill unconstitutional. Let me explain.
We first need to understand how the Criminal Code defines “human being”. Subsection 223(1) says:
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
That is clearly laid out in the Criminal Code, subsection 223(1). This means that in current federal law, the pre-born child is not considered a human being.
The Criminal Code defines homicide, in subsection 222(1), as follows:
A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
So in today’s Criminal Code, legal protection is afforded to the child only once it becomes a “human being”--that is, once it has been born alive. The Criminal Code as it exists today offers no protection to the fetus, because the fetus is not a human being, and only human beings are protected under the Criminal Code as it exists today.
The amendment to the Criminal Code that I am proposing with my private member's bill would change this so that legal protection will be given not only to human beings, as defined by the Criminal Code, but also to unborn children who are harmed or killed during the commission of an offence against their mothers.
Proposed subsection 238.1(2) of my private member's bill states that: It is not a defence to a charge under subsection (1) that(a) the child is not a human being;
This private member's bill does not change the definition of human being. What it does do is offer protection to the unborn child, despite the definition of human being.
If an amendment were made to the Criminal Code that changed the definition of a human being to include unborn children, then that would affect the abortion issue, because then an abortion would be considered homicide under subsection 222(1), cited above. Then that could potentially, under some circumstances, be a violation of a woman’s right to security of person guaranteed under section 7 of the charter--for example, in the case where an abortion was necessary to save the life of a mother.
But that's not what my private member' bill does. It does not redefine human being, and so it does not affect abortion whatsoever. There is no way it can affect a woman’s right to security of person—or any other charter right, for that matter. In fact, this bill, by offering protection to the pre-born child, is effectively offering more protection to the woman.
And that's the reason I brought this bill forth--to offer more protection to a pregnant woman.
I'm now going to talk a bit about Supreme Court rulings regarding fetal rights. One often hears the argument that the Supreme Court would not allow a fetus to have rights because it is said that the fetus is not a person, but that's a false interpretation of the court's rulings. It is the existing law that offers no rights to the fetus, and the courts have just been applying that existing law when they make their rulings. But the law has not changed, and that is the responsibility of Parliament, not the courts, as the Supreme Court itself has said in a number of cases.
The case of Sullivan and Lemay v. the Queen, 1991, is one example of that. Two midwives were charged with criminal negligence causing death of the child of Jewel Voth. The baby was born dead. At issue in this case was whether a living child, partially born, was a person within the meaning of section 203 of the Criminal Code, which states that everyone who, by criminal negligence, causes death to another person is guilty of an indictable offence and is liable to imprisonment for life.
The Supreme Court ruled that midwives could not be charged under this section, because the child is not considered a person for the purposes of the Criminal Code. Why did the court say this? Because the word “person” is not defined in the Criminal Code, but “human being” is, as previously discussed. The court said there was no reason to assume that person should mean anything different from human being. And since human being is defined as a child who is born alive, then the child before birth, if not a human being, is also not a person.
Chief Justice Lamer said:
Accordingly, I agree with the Court of Appeal that the introduction of the criminal negligence provisions by Parliament in 1954 was not intended to change the meaning of “person” and that the term, as used in section 203 of the Code, is synonymous with the term “human being.” Therefore, according to section 206, the child of Jewel Voth was not a “person” within the meaning of section 203 and Sullivan and Lemay cannot be convicted of criminal negligence causing death to another person.
The Supreme Court was simply basing its ruling on existing criminal law, and nowhere in current law did it say that a fetus is a person. Since the current law does say that the fetus is not a human being, the court interpreted this to mean that section 203 did not apply. It was in no way saying that the law could not be changed to grant some sort of rights to a fetus.
In the case of Winnipeg Child and Family Services, 1997, 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 her unborn child. As in the previous case cited, the Supreme Court said that according to the 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” .
Once again, the Supreme Court is clearly stating 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; it is the job of those elected to Parliament.
My private member's bill addresses this issue in one very specific way only, and that is by extending protection to the unborn child who is harmed or injured when the mother is a victim of violent crime. I know it's the second time I've stated that, but I think it's really important to note, that it applies only when the pregnant mother is the victim of a violent crime.
In 1989, in the case of Chantal Daigle v. Jean-Guy Tremblay, the Supreme Court again said that it was up to Parliament to determine what level of protection to give the unborn child. You have that in front of you.
Finally, in Morgentaler, Smoling, and Scott v. the Queen, in 1988, when the Supreme Court struck down the abortion law--for procedural and administrative reasons only, by the way, not because the judges found a charter right to abortion--the Supreme Court justices made it very clear that it was up to Parliament to determine what level of protection to afford an unborn child. They said it had to be done in such a way as to balance the rights of a woman with the rights of a fetus.
Chief Justice Dickson said: Like Beetz and Wilson JJ., 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.
This balancing of rights would certainly be applicable in the case of an abortion where a woman wants the abortion. What I am proposing in Bill C-291, where we're not even faced with this balancing act, is actually enhancing the rights of both the mother and the child. There's absolutely no infringement here on the woman. The Supreme Court is clearly saying that the state does have an interest in protecting the unborn child. Bill C-291 is attempting to offer such protection in a particular circumstance only, in a very narrow, particular circumstance.
It is clear, from all these cases cited, that the Supreme Court has put the responsibility for granting legal protection to the fetus squarely in our hands, the hands of parliamentarians. My private member's bill attempts to do something that the Supreme Court has clearly stated is within Parliament's power to do. If we are doing something that the Supreme Court has said we have every right to do, then how can this be a violation of the charter? Again, keep in mind that I'm only guessing at what may have been the reasoning behind the subcommittee's declaring this bill to be clearly against the Constitution.
The second possibility is the doctrine of transferred intent. There's another possible reason why some people might think that this bill could be unconstitutional, and that has to do with the offender's intention with respect to harming or killing the pre-born child. This bill would make it a crime for someone to harm or kill a child, regardless of whether or not that person intended to harm or kill a child, as long as there was intent to harm or kill the woman.
My private members' bill states, in proposed paragraphs 238.1(2)(b) and (c), that:
(2) It is not a defence to a charge under subsection (1) that (b) the accused did not know that the person was pregnant; or (c) the accused did not mean to injure or cause the death of the child.
This bill introduces nothing new in this concept, and that's important to note. It is a long-held common-law doctrine, called “transferred intent”, that when a person who intends to harm one person accidentally harms a second person, the law will treat the offender as though he or she intended to harm that second person. That is, the intent to harm the first person is transferred to the second person.
The doctrine of transferred intent is incorporated in the Criminal Code under paragraph 229(b), which states:
Culpable homicide is murder (b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being;
A case example can be found in Droste v. the Queen ,1984, where a man intending to kill his wife by staging a car accident in fact ended up killing his two children, who at the time were in the car with his wife. He was indicted on two charges--namely, first-degree murder of each child, even though he had not planned to kill the children.
As the court said,
The requirement of planning and deliberation is a requirement relating to the intention to take a human life and not to the identity of the victim….Causing death by accident normally results in acquittal or, at most, a conviction for manslaughter. When such a killing is accompanied by an intention to cause death to another human being s. 212(b)
--which is currently paragraph 229(b)--
dictates that the homicide is not manslaughter but murder, i.e., intentional killing.
This doctrine is applied not only in the case of murder but other offences as well. In the case of R. v. Deakin, 1974, the accused was “…convicted of assault causing bodily harm when, in an attempt to strike another person, he caused bodily harm to a bystander.”
How can Bill C-291 be “clearly unconstitutional” if it is incorporating a doctrine that is already used in today’s criminal law? Is the Subcommittee on Private Members’ Business saying that paragraph 229(b) of the Criminal Code is “clearly unconstitutional”? I don't think so.
It has been told to me by two lawyers who deal with criminal law that this doctrine of transferred intent is a murky area, and the judges in Droste do indicate that it is a controversial doctrine. If it is controversial, maybe there are charter implications, but if Supreme Court judges say it's controversial, then how can it be clear to a committee of five members who do not have the same constitutional and criminal law background, one would think, as do these judges? What this tells me is that this transferred intent doctrine should be the basis of serious discussion during the committee stage, where we can call experts to advise us on this complex issue. In other words, if this bill is deemed votable, we could go through the debate. If, and only if, it passes a vote in the House and goes to committee, then at that time the committee should discuss this issue, which is murky regarding the Constitution. Again, the requirement is clear. For this bill to be deemed non-votable, it has to clearly contravene the Constitution.
Finally, one might argue that the term “child” should be defined. The Criminal Code currently uses the term child to refer to the woman’s offspring before or during birth, but it does not define it. If this is deemed problematic, then, again, this can be discussed at committee stage. If it's deemed necessary to define the term more precisely, then it can be done through an amendment, but again, this is not a charter issue. This is simply a matter of perfecting the wording of the bill to make it more precise. And I repeat, this is what committees do when they analyze bills; otherwise, why do we bother having committees? They deal with the wording and with the content of bills, and they can amend. They could amend this bill should it be deemed votable and should it make it to the committee stage.
In conclusion, we Canadians are privileged to be living in a democratic country. Let us use our democratic process the way it was intended to be used. Let us give all members of Parliament, elected to represent the Canadian people, the chance to be heard on this important issue of social justice.
The law I am proposing would act as a strong deterrent against violence that is perpetrated on women at the time when they're most vulnerable. We must, I think, send a strong signal to society that violence against pregnant women is not to be tolerated.
Bill C-291 is almost certainly in conformity with the Canadian Constitution, including the charter, as I have shown today. The one thing that is clear, I think, is that it does not “clearly” violate the charter. So I would ask this committee to actually do what's necessary to reverse the decision of the subcommittee and make my bill votable.
I would like to take a minute to talk about the process, because I think some of you have seen some of the problems with it. I mean, here I am before you and I don't even know why my bill was declared by the subcommittee to have somehow contravened the charter. That clearly isn't acceptable.
What I would propose to the committee and to the subcommittee is that absolutely, meet behind closed doors, in camera; most bills will be deemed votable. Not a problem, because those bills then go before the House, are debated, and either passed or shot down. But in a case where the subcommittee is considering deeming a bill non-votable, surely the committee--and nothing prevents them from doing this--could call the member whose bill it is to explain the case in front of the subcommittee before a final decision is made. I would ask this committee to seriously consider that procedure.
A private member's bill is one of the few meaningful rights an individual member of Parliament has. It's important. This bill is important to me. It's important to Mary Talbot, it's important to her husband, it's important to people across the country, as the polling has shown.
I would ask you to seriously consider that change for the future. It isn't going to help me in this case, but it certainly is important to me.
I'd now like to open it up to any questions the committee might have.
