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Defying Common Sense: The Criminal Code and the Being-Born, Newly-Born and Unborn Child

Guest Blogger: André Schutten, Student-at-Law, Former CFPL Intern

In conversation with a friend, the topic of the legality of abortion came up. Although my friend has been a licensed practicing nurse for a few years, he was shocked to find out that in Canada an abortion can be legally procured throughout all three trimesters, up until the moment of birth. It took a few minutes to convince him that I was deadly serious (pardon the pun). I think my friend’s ignorance of the reality that is Canada’s refusal to protect its unborn citizens is indicative of the vast majority of Canadians’ understanding on this point. Perhaps, that “misunderstanding of Canadians” has something to do with our elected leaders’ refusal to “re-open the abortion debate.”

In R v Morgentaler, [1988] 1 S.C.R. 30, the Supreme Court of Canada struck down a section of the Criminal Code that violated a woman’s right to “life, liberty and security of the person” under the Charter of Rights and Freedoms. But, the court was clear that it was striking a specific section with a specific constitutional problem. The court was equally clear that Parliament has the jurisdiction to enact legislation in regard to the unborn.

Since Morgentaler, the Supreme Court has emphasised that the unborn has no “legal” rights - a recognition that Parliament has not passed legislation granting those rights.

In 1991, the Supreme Court heard an appeal of a case where two midwives were charged under ss. 203 and 204 (now ss. 220 and 221) of the Criminal Code, after a child they were attempting to deliver died while still in the birth canal. At trial, they were convicted of criminal negligence causing death of the child (s. 220) but were acquitted of criminal negligence causing bodily harm to the mother (s. 221). However, the Supreme Court determined that a child in the process of being born was not a “person” according to the definition in the Criminal Code. And they were correct. Section 223 of the Code 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…”

As bizarre as that seems, it gets even more convoluted. In 1996, Brenda Drummond, 28, was charged with attempted murder after she shot her nearly full term son with a pellet gun while he was still in utero (R. v. Drummond, [1996] O.J. No. 4597 (Ont.Ct.J.).  Jonathan was born 2 days later, was treated in intensive care and survived. Ms. Drummond was acquitted of attempting to murder baby Jonathan because, according to law, a baby is not a legal “person” worthy of legal protection until it is born and the crime of attempted murder on an unborn child is “an offence not know in law.” She couldn’t be found guilty of attempted murder, nor could she have been found guilty of murder had baby Jonathan died before he was born. But had baby Jonathan died after he was born, then s. 223(2) of the Code would have found Ms. Drummond guilty of homicide. 

Confusing, yes? Let’s examine the relevant Criminal Code sections, bit by bit. Section 223(1) defines when a child becomes a human being. Current Canadian criminal law dictates 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 whether or not (a) it has breathed, (b) it has an independent circulation, or (c) 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.

Aside from the fact that this legal definition is scientifically, logically, philosophically, morally, and medically incorrect and defies all common sense, it seems odd that someone can do something to a child before it becomes a human being. Isn’t a child a human being? Let’s consider a fact scenario:

Imagine a woman goes into labour, but her boyfriend doesn’t want to father the child. Just before the birthing process begins, he convinces his girlfriend to let him terminate the pregnancy. If the father wants to end the life of that fully viable baby without facing charges, then the child must die before it exits the birth canal. There are three potential results:

  1. The boyfriend fails in his attempt to kill the baby, and the baby lives (probably with debilitating handicaps), but he faces no charges as he committed no crime against a human being (see the case discussed above);
  2. The boyfriend succeeds in killing the child before it is fully out of the birth canal, and can’t be charged with murder because murder can only be committed against a human being, and our law says one is not human until the child completely exits the birthing canal. (more on this below);
  3. The boyfriend fails in his attempt to kill the baby during the birth process, but the baby dies soon after birth. He is found guilty of homicide (and, according to s. 235 and 236, liable on conviction to life imprisonment).

If you’re even more flabbergasted now, you’re not the only one. I’m a little blown away too!

Let’s take a look at another section in the Code. Section 238.(1) states:

238.(1) - Every one 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.

In sum: “If you kill a child during its birth, it would be murder, but because we don’t define an unborn child as a human being, we can’t call it murder. So we are going to call this offence the ‘killing an unborn child in the act of birth’ offence and make it punishable up to imprisonment for life. But it’s not murder.”

The only saving grace of this section is that it does make it a crime to kill the child during the birth process. So, a partial birth abortion is a crime, right? Well, it depends. There’s another sub-section that follows:

238.(2) – This section does not apply to a person who, by means that, in good faith, he considers necessary to preserve the life of the mother of a child, causes the death of that child.

Under this exception, one could argue that where a partial-birth abortion is done to save the life of the mother, then that procedure is legal. But think about this one logically: with all of the medical advances over the last century, with the possibilities of Caesarean section deliveries, doesn’t it seem a little strange that a doctor would begin to deliver a baby, and then half-way through the delivery decide that the life of the mother was at risk and that the best way to preserve her life would be to immediately kill the baby? Even with the baby dead, it still has to be delivered. That logic seems bizarre.

To summarize, having considered the above sections of the Criminal Code, the following is true about the current state of protection for the unborn, the being born, and the already born in Canada:

  1. Abortion is permissible up until the moment the birthing process begins.
  2. The killing of a child during the birthing procedure is, unless trying to save the life of the mother, a criminal act but is not termed murder or homicide.
  3. It is impossible in Canadian law to be found guilty of attempted homicide where the attempt is made on an unborn child.
  4. The moment an unborn child is completely outside of his or her mother, any attempt on its life constitutes homicide.

With this in mind, consider the case of Aysun Sesen, whose husband was charged in 2007 with the murder of his wife after repeatedly stabbing her in the abdomen for not having an abortion. She was seven months pregnant. Aysun was rushed to the hospital. Aysun Sesen's fetus still had a heartbeat on the way into the operating room. Doctors working on Sesen performed an emergency caesarean section, but the fetus was stillborn. The fetus apparently succumbed to a lack of blood. The baby’s mother died soon after. Because the baby had died only moments before being delivered, Aysun’s husband was charged only with one count of homicide. There will be no charge against him whatsoever in regard to the baby.

Compare Aysun’s child with the child of Bernice Daniels. She also was stabbed in the abdomen, resulting in the premature birth of her child who lived for 19 minutes before dying from injuries suffered during the attack. Her attacker was eventually convicted of the child's manslaughter. As medical ethicist Margaret Somerville says, "It's pretty bizarre that as long as you make sure the baby is dead in utero there's absolutely no criminal charge, but if you deliver the baby alive [and it dies soon after] then it's murder."

With all of this being said, I have to wonder, why does political rhetoric ban discussion from Parliament on the topic of abortion? Why does the leader of the governing party continue to vow not to open the abortion debate? And why do the three opposition party leaders continue to accuse the governing party of attempting to do so as if such a debate were immoral?

It seems to me that to not discuss this ridiculous reality is itself immoral.

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