Mr. Speaker, after all this time, and all the debates about a woman's right to choose, and the securing of those rights under the law, here we are again talking about this issue.
Bill C-291 proposes changes to the Criminal Code that are unnecessary and will potentially jeopardize a woman's right to choose. The proposed amendment would have two charges laid against a person who kills a pregnant woman. This would, in effect, give legal rights to a fetus and change the definition of when a fetus becomes a person under the law. Currently, a fetus is not considered a person or a human being until actual live birth.
While I will not argue that harming or murdering a pregnant woman is a particularly abhorrent crime, this bill will in the end do more harm than good for women's rights in Canada.
Some may contend that this bill has nothing to do with abortion and is just about ensuring that someone who murders a pregnant woman will pay doubly for his or her crime. However, this bill is the thin edge of the wedge, as it will change the definition of when a fetus becomes a person. This change will have an effect on the legal status of abortions in Canada.
This is not something that needs to be opened up for debate once again. Canadian women fought long and hard for the right to safe, legal abortions in Canada. Women have been forced to put their private lives under scrutiny in the courts in the fight for the right to choose.
If we take away that right, women in desperate situations will have to take desperate measures, such as a young woman in 1989. While the federal government debated making non-emergency abortions illegal, this young woman bled to death after attempting to perform an abortion on herself.
This bill is nothing but a thinly veiled attempt to make abortions illegal in Canada. I am extremely disappointed that the Conservative government would use the tragic murders of young women to push its abortion agenda.
This bill calls into question a judge's ability to take mitigating circumstances into account. Courts already take aggravating circumstances into account when deciding on sentences for crimes and would most likely consider injury to or death of an unborn child to be a serious aggravating circumstance.
Furthermore, two separate offences would not necessarily equal more jail time. In Canada, unlike the United States, multiple sentences are often served concurrently.
I bring up our neighbour to the south for a reason. As many of my colleagues well know, this type of bill has been passed in several states. This type of bill does have some impact there, as jail sentences are often served consecutively, increasing the time served.
I would also like to note that the United States is the same country where there is an active attempt to ban access to abortion for American women at both the state and the federal level. The supporters of this type of bill are the very same people actively working to ban abortions.
The evidence is clear. To date, the courts across Canada have blocked provincial attempts to substantially regulate the issue of abortion, finding that the pith and substance of such attempts is actually an attempt to recriminalize abortion through the back door.
And recriminalizing through the back door appears to be the intention of this bill. Bill C-291 puts the legal status of an unborn child into question. First, Bill C-291 does not refer to an unborn child in the same manner as other sections of the Criminal Code. Section 223 states that a child becomes a human being when it is born alive, and section 238 refers to “a child that has not become a human being”.
By contrast, Bill C-291 refers to “a child before or during its birth”. Not only is this terminology generally inconsistent with the approach taken to the fetus in the Criminal Code as a whole, but it is also inconsistent with terminology used in section 238 itself, the provision it is amending.
Bill C-291 essentially represents an indirect recognition of an unborn child as a human being. Such an initiative could have significant ramifications in a number of different areas of law.
Recognition of an unborn child as a human being indirectly leads to its recognition as a person with legal status. If an unborn child becomes defined as a person with rights, it opens a Pandora's box in the abortion debate.
Recognition of an unborn child as a person would also have a significant impact on tort law and other areas of the common law. Numerous cases have been commenced in the past on behalf of unborn children. They have not been successful because the law does not recognize the fetus as a person with legal status. Any change to this status in the criminal law could potentially have wide ranging implications in common law.
The proposed amendment will also have a significant impact on the mens rea or the intent of the accused. Mens rea includes issues such as the accused's perception of the risk or legal consequence of his or her actions.
The amendment states that it is not a defence that the unborn child is not a human being, that the accused did not know that the mother was pregnant, or that the accused did not mean to injure or cause the death of the unborn child.
Bill C-291 essentially eliminates the intention requirement, and the lack of intention defence appears contrary to the fundamental elements of criminal law.
There is a “thin skull rule” in criminal law which already states that a person who inflicts more than trivial bodily harm must take the victim as he or she found the victim; for example, with a medical condition that leads to more serious consequences to that bodily harm. In other words, judges already have the ability to consider a pregnancy.
Bill C-291 goes beyond this to create an entirely separate offence that eliminates the lack of intention defence inherent to all criminal law. While it may be argued that intent to injure the mother fulfills the mens rea requirement for this separate offence, this is a potentially tenuous link that would likely be challenged in the courts.
It is obvious why this bill was ruled non-votable. Not only is it a veiled attempted to make abortions illegal in Canada, but it would make a significant change to our legal system that is neither necessary nor welcome.
The Conservative Party continues to repeat that it is keeping its election promises, yet its members are bringing bills to the House that directly contradict that platform. I would like to quote directly from what the government has said:
A Conservative government will not initiate or support any legislation to regulate abortion.
This bill does exactly that. It initiates legislation that will essentially regulate abortion in Canada by changing the definition of the legal status of a fetus. It opens the door to making abortion illegal in Canada.
A woman's right to choose was hard fought, and it would be detrimental to Canadian women and an international embarrassment to remove that right. The Conservatives are not standing up for Canadian women by tabling bills that will impact on a woman's right to choose.
Taking away a woman's right to choose will not reduce violence and will not make this a better world. It will only remove her freedom. That simply is unacceptable.