Aims to protect unborn from violence
Tory could reopen abortion debate
May 22, 2006. 01:00 AM

OTTAWA—A Conservative MP has introduced a private member's bill that would make it a separate criminal offence to harm an unborn child in cases where a pregnant mother is assaulted or murdered.

The bill that pro-choice advocates say has implications for the abortion debate in this country "is not an abortion bill," says Alberta Conservative backbencher Leon Benoit, who describes himself as "pro-life."

It is restricted to cases where women are deliberately targeted for violence, he said.

"To me it's all about protecting, especially, pregnant women against violence, and where they've made the choice to keep their child, of protecting that unborn child."

But the bill, C-291, already seems bound to trigger yet another emotional debate over the rights of a fetus, how the unborn are protected and recognized in law. Even Benoit acknowledges he has a big hurdle, since the Supreme Court of Canada has so far refused to recognize a fetus has a separate legal identity as a "person" under the law, requiring separate legal protection.

The unborn child only acquires separate rights and legal protection upon live birth, say legal experts.

But Benoit says this is all about providing more protection for women, especially pregnant women, who statistics suggest are more vulnerable to violence.

Benoit was moved by the brutal murder of 19-year-old Olivia Talbot of Edmonton last fall, and the dogged campaign of her mother, Mary, still grieving the death of Olivia and her unborn grandson. In tabling the bill at the end of last week with a moving statement, Benoit (Vegreville-Wainwright) wrongly stated a former boyfriend was to blame.

An assailant shot Olivia, six months pregnant, once in the head and three times in the belly. A childhood friend, not the father of the child, faces one count of first-degree murder.

Mary Talbot met personally with Prime Minister Stephen Harper during the election campaign to press for just this change.

"I felt that there was something wrong with the law, that the fellow who had murdered my daughter and grandson wasn't being charged with two murders," Talbot, 50, said in a telephone interview.

Though Talbot herself is "pro-choice," she stresses the law should protect the unborn children whose mothers have chosen to carry them to term.

"He was 27 weeks' gestation," said Talbot, who was briefly able to hold her grandson after he was removed from his mother's womb. "He was just barely nicked by a bullet, which was horrible, but he was perfect. He had long black hair and 10 fingers and 10 toes, and everything about him was perfect.

"To me, this person deliberately wanted the two deaths. So I couldn't understand why he wasn't being charged for both."

Talbot said Harper talked to her for about 15 minutes "and kind of explained things" — the lottery process for passing private members' bills.

"He was very helpful," she said, but "careful because he was in the middle of running for prime minister," she said.

"He was sympathetic without committing any statement ... I think the biggest fear of all politicians was that it was going to fall into an abortion issue."

Bill C-291 is the second piece of business on the list of private members' bills to be dealt with after Parliament resumes next Monday after this week's break. It will be voted on by all MPs.

Harper has promised his MPs free votes on such matters, but he has also promised his government would not initiate any legislation on abortion in its first mandate.

The bill says anyone who injures or causes the death of a child before or during its birth while committing an offence against the mother — even if the offender does not know the woman is pregnant, or does not intend to injure or kill the child — would be guilty of a separate crime, and punished for it separately. It is the first time in recent years such a "fetal homicide" bill comes before Parliament, although Conservative MP Maurice Vellacott (Saskatoon-Wanuskewin) in the last Parliament talked about bringing one forward.

In the United States, about 30 states have enacted bills like it, and the high-profile deaths of two other pregnant women, Liana White of Edmonton and Laci Peterson of California, have drawn attention to the issue.

But if Parliament passes the bill, it would eventually lead down the path of arguments for more restrictions on abortions, says Mary Eberts, co-founder of the women's Legal Education and Action Fund, and a Charter equality rights litigator.

"It is quite a change philosophically, or in principle, from the foundation of the common law at the present time," Eberts said.

"I think that any such change is bound to set off ripples in future cases or in other situations."

Eberts agrees with Benoit, who cites studies of a higher rate of abuse toward women who are pregnant. But Eberts says Canada's criminal law already takes aggravating circumstances into account upon sentencing. Charging a separate offence would not necessarily lead to more jail time for a convicted offender since multiple sentences are often served concurrently, or at the same time, she adds.

"There may be a kind of symbolic significance to adding this kind of crime, but I think in practical terms if the perpetrator is charged with first-degree murder or second-degree murder, then you would get a good sentence that should satisfy even the most heartbroken of people, and that should also satisfy the conscience of the country.

"We're not just talking about the bereaved families' wish for accountability. Shooting a woman while she is pregnant — she is particularly vulnerable at that time — I would not be the least bit surprised if there was a substantial sentence, and I can't really see what adding this other crime would do except to be satisfying in a symbolic way."

Mary Ellen Douglas, national organizer for the pro-life advocacy group Campaign Life Coalition, praises the bill as a "common-sense" proposal and says "in the way it's worded, I don't think the Supreme Court would have a problem with this. They shouldn't."

She says it is "not a pro-life bill at all, and I think if people are seeing it that way they are getting a little paranoid.

"I would think pro-abortion women would find this bill something they would absolutely want to bring forward because it relates to the mother and the fact that a mother has accepted this child in that sense."

The parliamentary agenda shows C-291 will be debated for an hour on May 30. Then it falls to the bottom of a list of dozens of private members' bills, before returning for a second hour of debate and a vote, supposedly after 15 business days. It would then go to a Commons committee for study and possible change before returning for a vote on third or final reading.