Mr. Speaker, I rise today to speak to Bill C-291, a bill that proposes to amend the Criminal Code to create a new offence of injuring or killing a child before or during its birth while committing an offence against the pregnant mother.
I believe, at its core, the bill is about ensuring that our criminal law strongly condemns and holds fully accountable those who commit violent acts against others, particularly against persons who are more vulnerable to violence. The evidence is clear that pregnant women are more likely to be victims of assault by their partners than other similarly situated women. These objectives are strongly supported by Canadians and, indeed, are reflected in the government's priority of getting tough on crime.
At the outset, I understand and support the message that Bill C-291 seeks to send to would-be offenders. If we are to achieve this important objective, we must seek to do so in a way that is consistent with fundamental principles of criminal law and that conforms with our constitutional law. If we do anything less, if we support legislative reform that does not follow the contours of our Constitution and its conventions, then we in fact fail to provide Canadians with the very protection against violence we seek to provide.
That is why the government cannot support Bill C-291. Although it appreciates the its intent, we believe its proposed reforms are in fact unconstitutional and, as a result, cannot do what it purports to do. It cannot succeed in providing the additional protection against personal violence, which we all agree Canadians want and deserve.
Bill C-291 proposes to create a new criminal offence. Under the bill, a person who injures or kills a child before or during its birth, while committing or attempting to commit an offence against the mother who is pregnant with that child, could be charged with the same offence against the child. Under Bill C-291, an accused could be charged with such an offence without knowledge that the mother was pregnant and without the accused intending to injure or kill the child. Therein lies the problem.
Bill C-291 proposes to create a new offence that would apply even though an accused did not intend to commit a crime. One of the fundamental principles of criminal law is that persons are not punished simply because harm was done, but rather because they are morally culpable for causing that harm. Therefore, a criminal offence may only be committed where there is both a guilty act and a guilty mind. There must be an intention to commit the act, as well as the commission of the act itself.
An offence that does not require a guilty mind and that requires only a guilty act is called an “absolute liability offence”. The Supreme Court of Canada has repeatedly found criminal offences of such a nature to be unconstitutional. The effect of the proposed offence in Bill C-291 is also to clearly prevent an accused from invoking available legal defences. This too raises additional charter concerns under sections 7 and 11(d), namely, the right to a full answer and defence.
Again, the Supreme Court of Canada has consistently held that such grounds of unconstitutionality cannot be saved under the charter. In other words, punishing people who cause harm but who are not morally culpable cannot be said to be “demonstrably justified in a free and democratic society”.
As I said at the outset, while I understand and appreciate the objective of Bill C-291, I believe the bill's proposed reforms are unconstitutional. As a result, the bill cannot achieve its objective of safeguarding Canadians against violence. This does not mean that Canadians are not protected by existing criminal law.
Section 238 of the Criminal Code makes it an indictable offence, with a maximum penalty of life imprisonment, to cause the death of a child while it is being born. As well, section 223 provides that where a person causes injury to a child before or during its birth, as a result of which the child dies after its birth, that person commits the offence of homicide.
Moreover, where an accused kills another person, whether the victim is pregnant or not, the accused may be charged with first degree murder or second degree murder, both of which carry a mandatory penalty of life imprisonment.
The criminal law ensures that the impact of violence perpetrated on victims is reflected by the sentence or penalty imposed in each case. In all cases, a sentencing court must consider aggravating as well as mitigating circumstances.
The specific situation of the victim is always considered. For example, was the victim a victim of spousal abuse? If so, section 718.2 of the Criminal Code requires the sentencing court to consider this as an aggravating circumstance for sentencing purposes. Whether the victim was pregnant or the mother of one or more children will also be considered as an aggravating circumstance. Indeed, under section 722 of the Criminal Code, a sentencing court must consider a victim impact statement that has been prepared in a case that describes the harm done to, or the loss suffered by, the victim arising from the commission of the offence.
The government's commitment to Canadians does not end with merely supporting the existing criminal law. The Speech from the Throne underscores the government's commitment to get tough on crime, to tackle offenders, to bring in tougher sentences for violent and repeat offenders, particularly those involved in weapon-related crimes.
This commitment is directly relevant to Bill C-291, as I understand the bill was motivated by a case that is currently before the courts and which involved the use of a firearm. The government has already delivered on our Speech from the Throne commitment. On May 4, the Minister of Justice tabled Bill C-10, an act to amend the Criminal Code, minimum penalties for offences involving firearms, and to make a consequential amendment to another act. The reforms in Bill C-10 seek to ensure that the use of a firearm in the commission of a serious offence will be subject to a significant sentence.
Further, as the House knows, we brought in Bill C-9, which addresses the serious issue of conditional sentencing. The government is serious about getting tough on crime, about protecting victims and about ensuring that we have a criminal justice system that Canadians can have faith in.
Bill C-291 speaks to the importance of protecting Canadians against violence. It speaks to the need to ensure that our criminal law adequately reflects the serious impact of violence on all of its victims. I believe all members of the House can support these objectives. That said, our duty as parliamentarians is to ensure that we enact legislation that respects fundamental principles of Canadian law.
The government is committed to protecting Canadians and we have already taken strong measures to do so.