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

more details here

• 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?

WNAL website

• 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:
  • Canadian law is more concerned about dead babies than living pre-born babies

• 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

Just an introduction to these topics, they'll be dealt with in more depth in 200/300-level topics.

• gendercide
• eugenics (pre-born screening)
• pro-life clubs / campus free speech
• access to information
• infanticide: the 491 from Stats Canada
• AHRA: Assisted Human Reproduction Act (after 15 years to created the law, gutted by Supreme Court)
  • four principles
    • human dignity
    • protection of health and safety
    • non-commodification
    • non-commercialization
  • Quebec wasn't happy that the federal government passed a law dealing with health issues
    • 4 said completely provincial, 4 said completely federal; last one said some sections are provincial, others federal
    • consequences
      • no strong, consistent, national standard (Alberta can go nuts, Quebec has their own law which is actually pretty good)
      • some provinces have no intention of regulating
      • no controls on human embryo experimentation
      • human-animal hybrid experimentation is now allowed
      • no health regulations in place
    • McLachin's Dissent
      • “Parliament has a strong interest in ensuring that basic moral standards govern the creation and destruction of life, as well as their impact on persons like donors and mothers.”
      • Section 11 recognizes…
      • Section 13: The production of human life in clandestine…
      • creating life outside the womb could “transform society and redefine the lives of generations to come” and raise “serious questions about social ethical, legal and health issues”