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.