Why doesn’t Canada have a Pre-born Victims of Crime law?

Canada is unique in the democratic world: it is the only country with no legal protection for children before they are born. This means that when a pregnant woman is attacked in Canada and her assailant harms or kills her pre-born child, no charge can be laid in that child’s death even when the attacker purposely intended to harm or kill her child.

This failure in law needs to be corrected. A pre-born victims of crime law would address this injustice by creating an offence for injuring or causing the death of an unborn child during the commission of an offence against the child’s mother.

In 2007 Conservative MP Ken Epp introduced Bill C-484. The bill was called the Unborn Victims of Crime Act. At the time, Mr. Epp said in a statement to the press:

My Unborn Victims of Crime bill is about seeking justice for victims of crime no matter how old they might be. It’s the right thing to do, and the vast majority of Canadians agree. We must repair the gap in law which leaves a pregnant woman completely vulnerable to others who want to harm her baby. Women and their children deserve no less. And as just and compassionate Canadians, we can do no less.[1]

Mr. Epp’s bill passed Second Reading in Parliament but it failed to become law because an election was called in the fall of 2008. (When an election is called, all bills that have not yet been passed into law are cancelled.) However, his bill had cross-party support and there is still majority support for it today. The reality is that when a pregnant woman is attacked and her assailant kills or causes harm to her pre-born child, no charge can be laid in the child’s death. This is fundamentally wrong; this legislative void allows further victimization of women and their children.

Even though there is broad support for addressing this injustice, there are shrill voices from a minority who seek to polarize the debate about pre-born victims of crime. In doing so they also paralyze political leadership to the point where victims’ rights continue to be disrespected and trampled on.

So, what is it they are saying? Why are they so opposed to seeing justice enacted for children taken away from women who have chosen to keep their babies?

“We don’t need a pre-born victims law. We just need stiffer penalties for crimes committed against pregnant women!”

What they are actually saying here is that the pre-born child doesn’t matter. That he or she doesn’t count as a victim. The reality is that a few extra months behind bars is not justice for the pre-born child. If the pre-born child is not recognized as a victim there is no justice for him or her. Mary Talbot’s grandson Lane Jr. was murdered along with his mother Olivia in 2005. Olivia was pregnant with Lane Jr. at the time of her murder. Ms. Talbot, a strong advocate for the passage of Bill C-484, said,

Imagine our amazement when we heard that the killer would not have any consequences for brutally taking the life of our grandson. How could this be possible especially after the man himself, and in his own words during his confession, stated that he took three shots – to get the baby – directly toward her torso to ensure the death of our wee Lane Jr. How in this day and age can anyone actually get away with such a despicable act of violence?[2]

Relatives of pregnant victims of crime want justice for two victims, not just one!

“We don’t need a new law. We need to address the root causes of violence against women.”

A pre-born victims law addresses violence against pregnant women and their children. Awareness and education are important but without a law, the purposes of criminal sentencing cannot be met. Harsh penalties for causing injury to, or the death of, a pre-born child are a much needed deterrent to committing violence against pregnant women. Furthermore, such a law is a societal denunciation of unlawful, heinous conduct. And without a pre-born victims of crime law, our courts cannot fully promote a sense of responsibility in offenders and foster an acknowledgement of the harm done to victims, their families and society. (For more on the purposes of criminal sentencing, see section 718 of the Criminal Code.) As with many injustices affecting Canadians, a combination of addressing root causes coupled with the enactment of laws is required. In fact, the main task of the government is to use the law as a tool to punish and deter violent criminals.

“A pre-born victims of crime law is an attempt to restrict a woman’s right to choose.”

Abortion is legal in Canada throughout the entire nine months of pregnancy for any reason. A pre-born victims law does nothing to change this. A pre-born victims bill modeled after Bill C-484 would not criminalize abortion and could not be interpreted as Parliament restricting a woman’s right to choose to have an abortion. Currently, when a pregnant woman is attacked and her assailant causes harm or kills her pre-born child, no charge can be laid in the death of the woman’s child, even if the sole purpose of the attacker was to kill her child. A pre-born victims law would correct this injustice by creating an offence in law for causing harm to the pre-born child during the perpetration of a violent crime against the child’s mother.

Pre-born victims legislation enhances women’s rights by protecting a pregnant woman’s choice to bring her child to term safely and by protecting the life of that child, through the power of criminal law.

“Pregnant women have been arrested in the United States because of pre-born victims of crime laws.”

This is an alarmist response. It is also misleading. Those who challenge pre-born victims legislation with this objection are clearly grasping at straws. They assert that such a law would be used to police and punish pregnant women. But, as Ken Epp pointed out when Bill C-484 was being debated,

Fetal homicide laws in states such as California, as well as the child abuse/endangerment laws in other states are stand-alone offences, whereas C-484 creates an offence only in the commission of an offence against the pregnant mother. A mother endangering her unborn child through drug or alcohol abuse is not a victim of crime in accordance with the wording of C-484.[3]

Mr. Epp went on to say, “For greater certainty, C-484 explicitly excludes acts or omissions by the pregnant mother, unlike the fetal homicide statutes in the US.”[4]

In other words, a pre-born victims of crime law does not apply to abortion or actions by pregnant women. A pre-born victims of crime law (similar to Bill C-484) would exclude any possibility that a pregnant woman can be penalized in any fashion for any harm done to her pre-born child. Such a law would exclusively and only be directed at third-party perpetrators who knowingly inflict violence against a pregnant woman and her pre-born child.

Considerable attention is given to the issue of intimate partner violence against pregnant women in the book Complications: Abortion’s Impact on Women. A pre-born victims of crime law would, in part, address this serious problem and would be a much needed deterrent to those who would commit violence against pregnant women. A pre-born victims of crime law would send a message that the child is also a victim of the crime if he or she is injured or killed when his or her mother is attacked.

The Supreme Court of Canada has repeatedly said that Parliament has the power to enact laws to protect the pre-born child. Canada needs a pre-born victims of crime law to protect children of women who have chosen to carry them to term.

[1] Ken Epp, MP Edmonton-Sherwood Park Constituency, Press Release dated February 13, 2008

[2] Mary Talbot, Statement by Mary Talbot at Charles Lynch Media Room, February 14, 2008

[3] Ken Epp, MP, Edmonton-Sherwood Park, The truth about Bill C-484: A compassionate and constitutionally valid remedy to current injustice in Canadian criminal law. August 20, 2008

[4] Ibid.