House of Commons Debates
Monday, May 2, 2016
PRIVATE MEMBERS’ BUSINESS
Protection of Pregnant Women and Their Preborn Children Act (Cassie and Molly’s Law)
Mrs. Cathay Wagantall (Yorkton—Melville, CPC)
moved that Bill C-225, An Act to amend the Criminal Code (injuring or causing the death of a preborn child while committing an offence), be read the second time and referred to a committee.
She said: Mr. Speaker, I am honoured to stand today in support of my private member’s bill, Bill C-225, the protection of pregnant women and their preborn children act, which I will refer to as Cassie and Molly’s law.
I was motivated to bring forward this bill after learning about the very tragic story of Cassie and Molly Kaake from Windsor, Ontario. Cassie was seven months pregnant with Molly when she was brutally attacked and killed in her home in December 2014. Molly’s father, Jeff Durham, has been working tirelessly to bring some good out of this horrific tragedy.
I would like to quote a statement that Jeff Durham made on the day I introduced this bill in the House. He said:
|| Without a shadow of a doubt in my mind, neither Cassie nor any pregnant victim of homicide or violence would want their choice, their babies, to go ignored. Just because they’re not here to say this law is needed, for anyone with a conscience and the power to do something about it, I say for them that this bill is needed.
I would like to explain now exactly what Bill C-225 would do and, just as importantly, what it would not.
This bill would create new offences for injuring or causing the death of a pregnant woman’s preborn child while committing or attempting to commit a criminal offence against the woman—for example, while assaulting or killing a pregnant woman—with the knowledge that she is pregnant. These offences are not stand-alone offences. They would only apply when a person is, which I stress, committing or attempting to commit a criminal offence against a pregnant woman. In addition, it would only be when the offender has the knowledge that she is pregnant. The new offences are called “causing the death of a preborn child while committing an offence” and “injuring a preborn child while committing an offence”.
With this law in effect, two charges can be laid in crimes involving attacks on pregnant women that result in harm or death to their preborn children. One charge would be in relation to the criminal offence against the woman, and the second charge would be in relation to one of the new offences created by the bill, which would be either causing the death of the preborn child or causing injury to her preborn child.
This bill would also add pregnancy to the list of aggravating factors for sentencing purposes. Although judges can already treat pregnancy as an aggravating factor, codifying it in the criminal law is a way to more clearly and strongly denounce violence against pregnant women. We know from researching the case law that it is often unclear to what extent a woman’s pregnancy is considered in sentencing. This bill would send a strong message to the courts that pregnancy must now be considered in the sentencing hearing.
Pregnancy should be a joyful and exciting time, the building of a family and a new generation. Unfortunately, the tragedy of Cassie and Molly, along with too many other Canadian women who were targeted and harmed because of their choice to carry their children to term, reminds us that the safety of women remains threatened.
According to the Canadian perinatal surveillance system, women abused during pregnancy were four times as likely as other abused women to report having experienced very serious violence, including being beaten, choked, threatened with a gun or knife, or sexually assaulted. Cassie and Molly’s law would be a strong deterrent to committing violence against pregnant women because of the severe penalties it would carry for intentionally causing the death of a preborn child.
In existing criminal law, if a pregnant woman is assaulted, not killed, and her child dies, the offender is charged only with assault on the woman, which carries a maximum penalty of 14 years for aggravated assault. Under Cassie and Molly’s law, the offender would be charged not only with the assault on the woman but also with the new offence for causing the death of her fetus. If her attacker’s intention was to kill her preborn child, then that person would be liable to imprisonment for life, with a minimum punishment of 10 years. This is a far stiffer penalty than the offender would get under the simple charge of assaulting the woman.
Not only that, a judge has discretion on whether to impose consecutive or concurrent sentences. Therefore, in cases where this new law is applied, judges may very well require the offender to serve the sentence for each offence consecutively. In the most tragic case, both the woman and her preborn child die, as was the case with Cassie and Molly. It was also the case with Olivia and Lane Jr., the assailant confessing that his intention was to kill the child, shooting Olivia three times in the abdomen before shooting her twice in the head. In these cases, the judge may impose two life sentences and, at the judge’s discretion, these could be served consecutively.
I want to be very clear about the intent of this bill so that there is no misunderstanding of what it is attempting to do. Cassie and Molly’s law is about protecting pregnant women and their preborn children from the actions of third parties who want to do them harm. It would protect a pregnant woman’s choice to bring her child safely to term.
I have been assured by legal experts that this bill cannot in any way be used to impact a woman’s choice to terminate her pregnancy. Abortion is by definition excluded from the bill, because of the clear wording that makes causing injury or death to the preborn child an offence only if the person does so, and I am quoting from the bill,
||while committing or attempting to commit an offence under this Act against a female person that the person knows is pregnant,
I want to reinforce that these new offences are not stand-alone offences. The new offences in Cassie and Molly’s law address only the situations where a third party harms or kills a woman’s preborn child while committing or attempting to commit a criminal offence against the woman, action which she is clearly not consenting to.
This legislation honours and protects a woman’s right to choose to give birth to her baby free from harm committed by others against her will.
Cassie had chosen to have Molly, and was so looking forward to mothering her. As Molly’s father, Jeff, stated:
|| Before they were killed, Cassie was the happiest anyone had ever seen her. She was happy to have chosen to be having our baby girl. She beamed with excitement and anticipation that was impossible for anyone who knew her not to see.
As the title of Bill C-225 makes clear, this law would protect pregnant women and their preborn children. With respect to preborn children, our health care system already offers them substantial protection, so why not our criminal justice system? In the area of fetal medicine, surgeons are able to perform delicate surgeries while babies are still in the womb, such as treatments for fetuses with spina bifida and life-saving heart interventions.
In the case of a pregnant woman who is rushed to the hospital after sustaining serious injuries in a car accident, physicians will do everything in their power to save the lives of both the woman and her unborn child. Even if the mother tragically dies, the doctors will not give up hope on saving her baby’s life. No one questions these policy decisions because they are common sense. It makes perfect sense to save the baby in utero who is struggling to survive after its mother was harmed or killed in a car accident.
However, in the house across the street, there is another pregnant woman, and she is being beaten and kicked in the abdomen and loses her baby as a result. What does not make sense is that this woman’s child does not matter in the eyes of our justice system, just like Molly, just like Lane Jr. Our justice system says it does not matter that their lives were brutally taken when their mothers were brutally attacked.
Why should women at their most vulnerable not have the backing of our criminal law to help them to protect what is most precious to them? It is simply wrong, and completely incoherent, when compared to the efforts and resources that our health care system puts into improving and saving prenatal life.
No one makes the argument that in order to protect abortion, we should not be performing life-saving surgeries on babies in utero. We allow both types of surgeries to take place in our hospitals, based on a woman’s choice.
Our criminal justice system should do the same. If we can allow abortion to coexist with life-saving fetal surgeries in our health care system, then we can allow legal abortions to coexist with the law in our justice system that makes it a crime for a third party to harm or kill a woman’s preborn child against her will. To do otherwise not only lacks coherence, it lacks compassion.
I turn now to concerns that have been expressed in the past by the medical profession. I understand that several physicians groups feared that a similar bill, Bill C-484, which was debated in Parliament in 2008, could criminalize doctors for performing abortions. I want to assure Canada’s physicians that I have paid close attention to those concerns in the drafting of Cassie and Molly’s law. Provisions in the earlier Bill C-484 explicitly excluded consensual abortion under a “for greater certainty” clause. However, that provision was causing concern amongst some physicians, who thought it would criminalize them for performing abortions. It was not a necessary provision and was only included for greater certainty.
Given that it did not have its intended effect, what was to make it clear that abortion would not be criminalized, and on the advice of my legal drafter, I decided not to include that provision in my bill. I have been assured by legal experts that this law cannot be used to criminalize doctors for performing abortions. I am confident this new approach will assuage any concerns that Canadian physicians had with the earlier bill.
The reason the bill does not interfere with the duties of physicians is that a person could only be charged with one of the new offences created in the bill if that person commits or attempts to commit a criminal offence against the pregnant woman. A doctor performing an abortion on a consenting woman is not committing any criminal offence against the woman, since abortion is not regulated by criminal law in Canada, and has not been since 1988.
Therefore, these new offences would not apply. They are not stand-alone offences, meaning that they can only apply while committing or attempting to commit a criminal offence against the woman.
I have also been assured by legal experts that Cassie and Molly’s law cannot be used to prosecute a pregnant woman in Canada for any harm she may cause to her own preborn child. This is because, by definition, the new offences only apply when a person knowingly commits a criminal act against a pregnant woman and thereby harms or kills her preborn child. Simply put, the bill is strictly aimed at third parties who knowingly commit a crime against a pregnant woman and in the process harm or kill her preborn child.
Importantly, Bill C-225 could never act as a precedent for the courts to criminalize the behaviour of pregnant women, because Canada’s criminal justice system does not allow courts to create criminal offences. That is the exclusive jurisdiction of Parliament. There is absolutely no way that Cassie and Molly’s law could now or ever be used to criminalize any act or omission by a pregnant woman with respect to her own pregnancy.
Another point that must be stated clearly to negate any confusion about the bill relates to the definition of “human being” in the Criminal Code. The bill does not change the legal definition of human being or create fetal personhood, as some critics have tried to claim. Because the Criminal Code definition of human being precludes preborn children, the existing criminal offences against human beings, for example, murder, manslaughter, and assault, do not apply when the preborn child is harmed or killed during attacks against the pregnant woman. Instead, the bill creates brand new offences to cover the very narrow circumstances whereby a preborn child is harmed or killed during the commission of an offence against the mother, in spite of the fact that these children are not considered human beings in our criminal law.
The criminal law can be used to protect entities other than what is covered under the Criminal Code’s definition of a human being. For example, the Criminal Code, in section 238, already protects a child during “the act of birth”. It makes it an offence to cause that child’s death in such as way that if the child were a human being it would be murder, even though that child during the act of birth is not a human being under the Criminal Code’s definition.
We have criminal laws to protect animals from cruelty, and against the unlawful killing or injury of animals. There are also criminal law protections against the destruction of private property.
Families are the foundation of our country. The Criminal Code is missing a crucial component to protect Canadian women and their families. The increased penalties under Cassie and Molly’s law create a legal mechanism that will enhance the safety of Canadian women and recognize the safety of their families. This approach is specific and robust. It is a common-sense approach designed to fill a gap in the Criminal Code that renders women and their preborn children vulnerable.
I truly believe that all of my colleagues want to do what they believe is compassionate and just. We should not turn a blind eye to the brutal violation of Cassie’s choice to continue her pregnancy. We should not turn a blind eye to Molly’s death.
We as parliamentarians have the long overdue opportunity to bring something good out of a horrific tragedy that is actually only one of many.
It is my sincere hope that we can put partisanship aside. I am asking all my colleagues to listen to their conscience. I am asking them to listen to everyday Canadians who instinctively know that it is wrong to violate a woman’s pregnancy and cause the death of her yet to be born child against her will.
As legislators, we must hold to our responsibility to protect the innocent, with sound reasoning combined with compassionate and caring instincts.
Let us protect pregnant women. Let us work together to increase the chances that a pregnant woman will be able to continue her pregnancy free from violence. Let us protect the child she longs to bring into her family.
One of the tools we as federal parliamentarians have at our disposal to offer this much-needed protection is the criminal law. It is the 21st century, and the time is right.
Protect pregnant women and their preborn children. Vote for the passage of Cassie and Molly’s law.