I've just received this opinion from the Attorney General, as have you. I do have some comments on the whole issue of mens rea, though, which in the third point is what he goes into.
First of all, I would like to point out that I have a great deal of respect, of course, for the Attorney General of Canada. He's an extremely wise man, with a strong background, and I certainly wouldn't argue with his opinion. But the fact that this is an opinion shows that it's not clear. It shows that it doesn't meet the test that the Constitution is clearly violated. And remember, that's the measure or the standard this committee has to meet to deem my bill non-votable. I in no way argue with the opinion of the Attorney General. He's an extremely wise man, with a lot of background in provincial politics and federal politics.
So I don't think this really changes the decision of the committee.
On the one issue that seems to be the key, the third bullet--I'm just going through this now--he deals with the issue of mens rea that reflects the particular nature of the offence.
I want to refer to a document from the American Congress, report 107-42. I'm just going to read three small parts of it that deal specifically with this issue of mens rea.
First of all, I want to show that the bill they were dealing with is--to my great surprise, by the way--very much like the bill that I have. They call it “H.R. 503”, or House of Representatives 503. It says: As a general rule, H.R. 503 provides that when one commits a violent crime against a pregnant woman, with criminal intent, and thereby injures or kills the victim's unborn child, the perpetrator is guilty of an additional offense, the punishment for which is the same as the punishment the defendant would have received had that same injury or death occurred to the unborn child's mother. In accordance with the well-established criminal law doctrine known as “transferred intent,” the criminal intent directed toward the mother “transfers” to the unborn child, and the criminal is liable for the injury or death of the unborn child just as he would have been liable had a born person been injured or killed.
This transferred intent doctrine was recognized in England as early as 1576. It's not something that's been determined just recently.
In this Congress document, they note that one prominent criminal law commentator describes the modern formulation of the doctrine in this fashion....
Actually, I don't think that's really the issue. We'll go to another statement dealing with mens rea. This is again dealing with the issue of transferred intent. It just says that whether the intent is there or not, the prosecution doesn't have to prove that the defendant knew or should have known that the victim was pregnant.
Then we go on to a later section in this similar bill before the American House of Representatives:
H.R. 503 contains one exception to this general rule. In cases in which the prosecution proves that an individual committed one of the predicate violent crimes against a pregnant woman, with the intent to kill the unborn child, that individual shall be punished as provided under Federal law for intentionally killing or attempting to kill a human being. The bill thus ensures that those who engage in violent Federal crimes against pregnant women, with the intent to kill their unborn children, are subject to more severe punishment than those who do not act with the intent to kill the unborn child.
It goes on to say:
In situations in which the defendant kills or injures an unborn child during the commission of a Federal crime of violence against a pregnant woman, the mens rea requirement is satisfied because the criminal intent directed toward the mother transfers to the unborn child.
So they've taken a bill that is virtually identical to what I have and they have determined that the mens rea requirements are satisfied.
Certainly, as I've said, I have no argument at all with the Attorney General's opinion. The issue here is that the one thing that is clear is that we can't clearly say that my bill would violate the charter.