LN Feature: A Chance to Revisit an Abortion Law



March 21, 2017
On the feature this week, a conversation with ARPA Canada lawyer John Sikkema about a move by the Trudeau government to clean up so-called “zombie laws”. These are laws which are officially still on the books, but which have been ruled unconstitutional and – because of that – are no longer enforceable.

There are a number of them, dealing with everything from water-skiing at night to spreading false news to certain prohibitions against vagrancy. And there’s also a Criminal Code provision covering the provision or procurement of abortion. All of them are proposed to be taken out of the Criminal Code.

LN: So the government has written what’s essentially a piece of housekeeping legislation to remove some of those old laws from the books. One of the things they want to remove from the Criminal Code is a provision that makes it illegal to provide or procure an abortion.

This is the section that was struck down in the Morgentaler decision back in the ’80’s.

Chantal Hébert got our attention last week with a column in the Toronto Star, intimating that the Liberals were actually playing some games here; that this was an effort to create some divisions within the Conservative ranks on this.

Does ARPA have a position on taking this item out of the Criminal Code?

JS: It’s interesting, the article you mention. She makes it an issue for potential division in the Conservative Party and talks about it as a wedge issue. I suppose a more cynical view of this (would) suggest that the Liberal government would like to see the Conservatives become divided on this issue. But I think it’s wiser to just see this as what it is on the surface. It is a housekeeping bill. It would be one thing if this were a bill just to remove that one section (on abortion) when there are other unconstitutional provisions still floating around in the Criminal Code. But it’s not that. So I don’t see it as any kind of affirmation of the Morgentaler decision, although certainly this government – I think – would affirm that decision. But I don’t think it’s wise to read too much into this politically. At the same time, it is a good opportunity for revisiting the issue. You know, a lot of people don’t understand why exactly the provision was struck down. A lot of people don’t remember that the Supreme Court tried to pitch it back to Parliament. I don’t think the Supreme Court even anticipated that there would be this kind of a void if you look at the language of the different opinions of the justices who wrote in that case. So it’s an opportunity to discuss the issue again, but I wouldn’t see the repeal of the unconstitutional section as a statement of Parliament’s view on the issue necessarily.

LN: So you talk about this as an opportunity to reopen the debate in some sense. I know ARPA’s We Need a Law arm has been talking about an “International Standards” abortion law. It’s the old talking point that we’re all familiar with: Canada is the only democracy in the world that doesn’t have any regulation on the matter of abortion. Is this a chance to sort of reopen that discussion somehow, and say “Yeah, OK.  The Supreme Court in Morgentaler ruled that that particular provision is unconstitutional, but can we take this opportunity to reopen the discussion and say that as an alternative, the Supreme Court did tell Parliament to fix it, and maybe here’s how to do that?”

JS: I think it is an opportunity for that. People may recall Stephen Woodworth’s Motion 312 a few years ago. That was to ask that the government study – or a Committee study – the definition of “Human Being” in the Criminal Code. (That) definition… defines a human being as a person who has “been born”, right? Been completely born. And that may seem arbitrary. “Well, are you not human before you’re born?” And I think it’s a reasonable question to ask, and we can look with skepticism on that definition in the Criminal Code. But that definition has been there for a very long time, since the first Criminal Code, I believe. And that definition serves a certain purpose, and that is…a human being is defined in the context of the homicide provisions of the Criminal Code. So it’s saying if you kill someone after they’re born, it’s homicide. And it had always been if you kill someone before they’re born, it was procuring a miscarriage. And that wasn’t because society didn’t see the unborn as human. It’s because – as one judge pointed out in the Winnipeg child decision – when we didn’t have the kind of medical knowledge that we have today, evidentiary concerns necessitated what’s called the “born-alive rule.” And that’s what’s reflected in the definition of “human being.”

So up until the 19th century when our criminal laws started to be formed in Canada, it was known that many children could be born dead. But medical practitioners could not tell for certain – if a woman was pregnant, before she could feel the child move – they could not tell for certain if a child in-utero was actually alive. And so, strictly speaking, to call even an abortion “homicide” would be difficult for reasons of evidence. Was the child alive at the moment that the instruments did their damage? That kind of thing. So it was still a very serious offence, alongside homicide. So you had this kind of pre-birth offence – which was a very serious offence – and then post-birth was the homicide offences. And of course, there’s different kinds of homicide, which depend on circumstances that are unique to those people who are already born. So that I think is why that was there historically.

But now, when we’re taking away the offence completely – now removing it from the Criminal Code – you don’t see that. You don’t see the kind of pre-birth offence and the post-birth offences. And for that reason too, we can say “why did we historically separate the offences; pre-birth and post-birth?” And you can look at that in other areas of law too where…why does the law treat the unborn differently? It recognizes them. They have a certain status with this kind of “born-alive rule”. If a child is injured in the womb, the child can’t be compensated for the injury until the child is born, because we would want to see what harm was actually caused. And we would have to wait until the child is born to see that.

So that’s all kind of part of the historical development of our law in a number of areas. It has to do with limited knowledge of the unborn. And so I think that (brings) us to today, where all these things are worth looking at again. The definition of human being, the way the unborn are treated in other areas of law, and – as you mention – the International Standards law.

That’s kind of where that brings us (to) today. So if we’re going to say “OK, the Criminal Code says human being is those who are born”, let’s talk again about those who are unborn, like all these other countries have. And the International Standards law – while maybe not the law that we would ultimately hope for in the long-term – would start to introduce some Criminal Code protections for the unborn. Not allowing abortion for no reason, not allowing abortion after a certain gestational period except to save the life of the mother; those kinds of things that are in the International Standards bill that ARPA has drafted.

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