This is an old revision of the document!

PBS110H: The Pre-Born Child and Canadian Law

These notes from the first half of André Schouten's 2013 NCLN Symposium talk, A Legal Wasteland: The Pre-Born Child and Canadian Law

  • Now:
    • Abortion totally legal since January 28, 1988
    • Section 223
  • history
    • pre-confederation “quick with child” (first time a mother feels her child move, around 16 weeks child was protected by law)
    • 1869 (first criminal code): abortion a crime at any time, punished by next stiffest penalty after death penalty
    • 1969: Trudeau's omnibus bill, therapeutic abortion committee
    • 1988: R. v. Morgentaler: unconstitutional on procedural grounds, because it unequally applied to Canadian women (in terms of abortion availability)
    • 1991: Bill C-43 fails; died in a tie vote
      • pro-life and pro-choice citizens were united against this bill, it wasn't a great bill
  • what does the criminal law say about the pre-born child?
    • Section 223(1), (2):
      • “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 whether or not (a) it has breathed, (b) it has independent circulation, or © the navel string is severed. (2) A person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being”
        • Does our criminal code refer to children using “it” elsewhere?
    • Section 238.(1)
      • (1) Everyone 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
    • R. v. Drummond, 1996, Ont. Ct. J.
      • 7 months pregnant, shotgun into cervix, pulled the trigger
      • charged with… attempted murder
        • the charge didn't stick; the thing she was attempting to murder wasn't a human being
      • charged and found guilty of: failure to provide the necessities of life
        • not because she shot her child in the head, but because she didn't tell the doctors
    • R. v. Levkovic: FIXME
      • Canadian law is more concerned about dead babies than living pre-born babies

Other notes FIXME integrate

  • History of Abortion Law in Canada
    • 1969 bill
    • R v. Mortgentaler
  • Current Legal Situation in Canada (WNAL)
  • Other Relevant Laws
    • Section 223: Homicide
    • Section 242-243: Neglect in Child-birth and Concealing Dead Body
    • Section 215: Duties Tending to Preservation of Life