Mr. Lee, please.
Evidence of meeting #10 for Procedure and House Affairs in the 39th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was person.
Evidence of meeting #10 for Procedure and House Affairs in the 39th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was person.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Thank you.
Rather than speaking to it, I'll try to draw out some of these points in questions, if that's okay.
Hopefully, Mr. Benoit, you'll regard us as not so much as devils' advocates on this but friends of the court.
I also think this should be regarded as a fresh hearing of the issue, for the reasons that Mr. Benoit has referred to. He wouldn't have been apprised directly of the reasons in the earlier discussion at the subcommittee. We ought to feel free to address this not as overturning a prior decision but as taking a fresh look at the issue of whether or not his item should be votable.
Third, there is a section of the Criminal Code that does address protections for a child, but only during the act of birth, only during birthing. That is section 238, which reads:
Every one who causes the death, in the act of birth, of any child that has not become a human being, in such a manner that, if the child were a human being, he would be guilty of murder, is guilty of an indictable offence and liable to imprisonment for life.
So the code attempts to deal with the birth part of this. Mr. Benoit's proposed bill goes further back. It looks like it actually goes back to the point of conception, as it reads.
Here are the two hard questions. On the mens rea issue, it's been accepted in our law--it's a principle of fundamental justice in Canada--that mens rea is a component of our Criminal Code. I accept the doctrine of transferred intent that Mr. Benoit has referred to. Nevertheless, mens rea is that fundamental component. The charter says, in section 7, that
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
One of those principles of fundamental justice is the mens rea item I've just mentioned. So without bringing a whole busload of lawyers in here to chew over that one, I'll ask you this question.
In the first trimester of a pregnancy, when pregnancy would not be apparent to a third party--or a second party, depending on how many people there are in this scenario—and one were to intentionally push a female who's in the first trimester off the sidewalk into the street, causing her to fall down, seriously hurt herself, and have a miscarriage, is it your belief that the person who committed what starts off as a common assault but ends up causing a miscarriage, and thereby the death of an unborn child....? Is it your view that this section should legitimately have that person charged and convicted of a homicide even when the person couldn't have known the woman was pregnant? It could be a stranger not knowing the woman, not knowing that she's pregnant, having no inkling at all of there being a third person in the scene.
Is it your view that your bill covers that? Because if so, in my view it has charter implications.
Conservative
Leon Benoit Conservative Vegreville—Wainwright, AB
I think the answer is that only if this person intends to kill the mother.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
With respect, that's not what you're.... If the person didn't intend to kill the mother, the person intended to assault the mother, but the assault causes the death of the unborn child, if I can put it that way--
Conservative
Conservative
Leon Benoit Conservative Vegreville—Wainwright, AB
The point is that unless it can be proven that there is intent to kill the unborn child, or an intent to injure the mother, there can't be any charges laid.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
But your bill says it's anyone who “causes the death of a child...while committing or attempting to commit an offence against the mother”. It's as simple as that. The scenario I have outlined appears to be covered by the words you've used in the bill.
Conservative
Leon Benoit Conservative Vegreville—Wainwright, AB
But how could it be murder if...? Because that's covered elsewhere in the Criminal Code.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
I said “homicide”. A couple of elements are missing from a--
Conservative
Leon Benoit Conservative Vegreville—Wainwright, AB
Okay. But how could it be homicide when there still has to be the intent to commit that crime?
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Well, there was an intent to push the mother off the curb.
Conservative
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
At any rate, I have raised that and I have asked you to try to exclude the possibility that the individual would be liable to be charged and convicted of, say, manslaughter in that scenario when he or she would never have known about the existence of the unborn child.
Conservative
Leon Benoit Conservative Vegreville—Wainwright, AB
Yes. And it's my understanding that this in fact would not do that. It wouldn't allow it.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Okay. I read it differently, and we're entitled to that difference--
Conservative
Leon Benoit Conservative Vegreville—Wainwright, AB
But that then is a matter, I think, to be debated when...unless you're saying it's connected to a constitutional issue. Certainly it's murky at best. Again, the standard that has to be met by the committee it that it has to clearly violate the Constitution, and it certainly doesn't.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
And I take the view that it's murky, at the least.
The second question, if I have time, has to do with a related issue. It has to do with the scenario where the mother is consenting, if there's a lack of clarity on the mother's consent. Even involving a situation where the mother submits to a therapeutic abortion, if there are questions about the consent, or in a situation where it's not clear where there's consent--and I'm not talking about therapeutic abortions, I'm talking about just inter-human conduct--we wouldn't allow the mother to consent to an assault on an unborn child, would we? I don't think we would. Yet this new section raises the spectre of a woman, if the unborn child does have Criminal Code protection, consenting to something that would hurt the child.
In my view, that raises a charter issue as well. It all has to do with the intentions of the mother at the time of the--
Conservative
Leon Benoit Conservative Vegreville—Wainwright, AB
I can't see that at all. Again, what this bill says is very narrow, that only in the case where a violent crime is committed against a pregnant mother would this apply.
Liberal
Conservative
The Chair Conservative Gary Goodyear
It would appear that there will be a lot of time for another round.
Are there any other members who wish to ask a question?
Then we'll allow Mr. Lee to go on to the third round.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
No, I tried to bring out some of the reasons why I believe the subcommittee would have focused on charter issues, and Mr. Benoit had an opportunity to put that in context. I can probably pause now.
Conservative
The Chair Conservative Gary Goodyear
Is there any other need for Mr. Benoit?
Mr. Benoit, you are invited to stay at the table, but I will move on to the next part of this, seeing that there are no further discussions or questions for you.