House of Commons Committee Rejects Opportunity to Deal with Unborn Victims of Violence
By Carroll Rees

On November 24, 2005, 19-year-old Olivia Talbot who was 27 weeks pregnant, was shot to death in Edmonton. Even though there were two victims, since both Olivia and her unborn child died, the law did not allow police to lay murder charges for the death of Baby Lane since he was not yet born. Mary Talbot, Olivia’s mother, has led the charge to have the law changed so that two charges could be laid in violent crimes involving a pregnant woman. She has spearheaded a national petition campaign asking Parliament to enact new legislation and met with Stephen Harper during the last election campaign. It recently looked like Mrs. Talbot’s efforts might pay off.

Leon Benoit, Member of Parliament for Vegreville-Wainwright introduced Bill C-291, a Private Members Bill which sought to amend the Criminal Code of Canada so that anyone who injures or kills an unborn child while committing an offense against its mother would be guilty of a separate offense. This bill would have allowed police to lay two separate charges in cases where violent crimes were committed against the pregnant woman and resulted in injuries or death to her unborn child. The minute this Bill was introduced in the House of Commons, abortion rights advocates started to object because they were concerned that it would erode access to abortion. Mr. Benoit repeatedly explained that this Bill would apply only in cases where mothers had chosen to carry the child to term. The Bill explicitly states that it would apply only “while committing or attempting to commit an offence against the mother.” Mr. Benoit clearly stated, “This bill is about protecting those children whose mothers have not chosen abortion – mothers who have chosen to carry their children to term.”

Unfortunately, Bill C-291 was deemed non-votable by the Parliamentary Subcommittee on Private Member’s Business because, they said, it “clearly” violates the Constitution including the Canadian Charter of Rights and Freedoms. The subcommittee did not provide any information regarding what section of the Charter was violated, nor what part of the bill was in violation. Mr. Benoit decided to appeal the decision to the Standing Committee on Procedure and House Affairs and had less than five days to prepare for the hearing. This was extremely difficult given the fact that he had no idea on what grounds they had deemed Bill C-291 to be non-votable. Nonetheless Mr. Benoit did a wonderful job of defending his Private Member’s Bill and explaining the reasons why such legislation is important.

Mr. Benoit explained that unborn victims of violence legislation would address the grave injustice of not recognizing the unborn child even when the attacker intended to harm him or her. This was the case in the Talbot case when the mother was shot three times in the abdomen and twice in the head. This was the second such case in 2005. Liana White,  an Edmonton woman, was killed by her husband in the summer of 2005 while pregnant and no charge was laid in the baby’s death. Clearly there are two victims in these cases and the law should recognize the loss of a loved one – even if he or she is not born. Mr. Benoit, in his submission said, “And the grieving families who have lost their loved ones in this type of crime, only too tragically recognize there are two victims – just ask Mary Talbot who is with us here today witnessing these proceedings, how many victims there were when her daughter, Olivia, and her grandson, Baby Lane, died that day. Any pregnant women who survives a violent attack but loses her preborn child – a child she wants and loves – will grieve for that child, and no one can say she grieves for that child any less simply because that child had not yet been born.”

Mr. Benoit asked the committee if Mary Talbot, who had traveled all the way from Edmonton for the hearing, if she could speak for two or three minutes. Sadly, the committee members voted against allowing her to speak. Mrs. Talbot had brought photos of Olivia and Baby Lane for them to see so they could better understand the impact of this legislative vacuum and see for themselves an actual baby who was not recognized as a victim of a violent crime. The photos were left on a table in the committee room but few MPs bothered to take one.

Leon Benoit explained that this Bill is needed to protect pregnant women. Evidence indicates that physical abuse often starts or increases when a woman is pregnant. The Society of Obstetricians and Gynecologists says that physical abuse remains a frequently undetected risk factor in a large number of pregnancies, and that violence begins or increases during pregnancy. (/Violence Against Women./ SOGC Clinical Practice Guidelines Policy Statement, No. 46, 1996.) A 2004 report by the Canadian Perinatal Surveillance System stated that women were four times as likely as other abused women to report having experienced serious violence, including being beaten up, choked, threatened with a gun/knife or sexually assaulted. (“/Physical Abuse During Pregnancy/,” Canadian Perinatal Surveillance System, February 2004; see
http://www.phac-aspc.gc.ca/rhs-ssg/factshts/abuseprg_e.html).  Legislation such as Bill C-291 would offer more protection to women when they are most vulnerable and have an increased risk of attack. Also, legislation may act as a deterrent to anyone who would consider harming a pregnant women and her unborn child.

Mr. Benoit tried to explain that Bill C-291 would not violate the Canadian Charter of Rights and Freedoms even though he was given no explanation from the Committee of why they claimed it would. He went on to explain that his Bill would not change Section 223 (1) of the Criminal Code which states that “A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state from the body of its mother”. Obviously, this excludes unborn children. To change the Criminal Code definition of human being to include unborn children could restrict access to abortion since the deliberate killing of an unborn child would be considered homicide. This may be interpreted to violate a woman’s right to “security of the person” as guaranteed under section 7, particularly when abortion is required to save the life of the mother. But bill
C-291would not change the Criminal Code definition of a human being but would offer protection where an unborn children dies or is injured as a result of violent acts against the mother /despite/ the definition of human being in the Criminal Code.

The Supreme Court of Canada has repeatedly been called on to rule in cases involving unborn children since the law on abortion was struck down in 1988. In all cases, the Court was bound by the Criminal Code of Canada’s definition of human being and this was reflected in their decisions. In the 1991 case of Sullivan and Lemay v. the Queen, two midwives were charged in the death of a baby who died during childbirth. The Court ruled that the midwives could not be convicted of criminal negligence since the baby was not yet born alive and did not yet exist in law.

Another case, that of Winnipeg Child & Family Services v. DFG, 1997, involved a glue sniffing pregnant woman who was placed in protective custody to save her unborn child from the toxic effect of his mother’s drug habit. The court ruled in this case that that it was not possible to force a woman to accept treatment to protect her unborn child because he/she has no rights according to existing law.

These rulings do not mean that it is not possible to grant status to the child in the womb. The Supreme Court of Canada has consistently said that it is up to Parliament to balance the rights of the mother with the rights of the child and to decide at which point the child in the womb should be protected by law. So, even if Mr. Benoit’s bill had attempted to change the definition of human being it is questionable if it would have violated the Constitution or Canadian Charter of Rights and Freedoms.

The other possible violation of the Charter which Mr. Benoit addressed was the doctrine of “transferred intent” which is well recognized in common law. According to this doctrine, when one person who intends to harm another accidentally harms a second person, the law treats the offender as if he/she intended to harm the second person. That is, the intent to harm is transferred from one person to the other. This is the basis for the Unborn Victims of Violence Act, commonly known as Laci & Connor’s law, which was passed in the U.S. in 2004.  The wording of Bill C-291 is fashioned after the American legislation.  Mr. Benoit gave the criminal code reference (Section 229 (b) for this doctrine and examples of actual court cases where it was used. If the Parliamentary Subcommittee were to deem Bill C-291 as unconstitutional based on this principle it would also be saying that Section 229 of the Criminal Code of Canada violates the Constitution. This seems highly unlikely. Rather, if some committee members had concerns about the validity of the doctrine of “transfer of intent” it would have been much more appropriate to allow this Bill to proceed to the committee stage where it could have been scrutinized and a decision made as to its constitutionality. In the meantime, it cannot be said that this Bill is “clearly” unconstitutional based on the “transfer of intent” since it is a well-established principle in law.

A statement by Vic Toews, Attorney General of Canada, was distributed to committee members during the course of the appeal in which he says that Bill C-291 is unconstitutional in his opinion. Mr. Toews included a brief note which referred to some sections of the Canadian Charter which the Bill may violate but offers no explanation. It seems unfair that he would deliver this statement to the Committee without first taking the time to explain his concerns to Mr. Benoit and give him an opportunity to prepare a response.  Copies of the Attorney General’s submission can be obtained by contacting the Clerk of the Committee, Ms. Lucile McGregor at: «proc@parl.gc.ca» or by calling (613)996-0506.

Once again Parliament is out of step with the views of Canadians. Two polls, both conducted in 2005, found that a great majority of Canadians would support legislation which would make it a separate offence to injure or kill a child in the womb while harming the mother. The Robins Sce Research Poll in December 2005 reported that 78% of Canadians supported such legislation and the November 30, 2005 poll conducted by the Calgary Herald reported a majority support of 82%.

It was obvious from the proceedings that this Bill did not “clearly” violate the Constitution or Charter of Rights and Freedoms. Committee member Mr. Tom Lukiwski, MP for Regina-Lumsden-Lake Centre said, “It appears to me that the point that we are asked to consider, whether this clearly violates the Constitution Act, is not clear at all.” As long as there was any doubt it would have been much more democratic to allow Bill C-291 to proceed to a vote and then debated at the committee stage to ascertain precisely if it was, in fact, unconstitutional. If a certain section or wording was found to be in violation of the Constitution or Charter it could easily have been amended. To deny Mr. Benoit and all the Canadians who support this legislation an opportunity to debate its merit is “clearly” unfair.

Carroll Ress is the Executive Director of LifeCanada.