A Chance to Revisit an Abortion Law

21 Mar 2017 A Chance to Revisit an Abortion Law

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Feature: The Trudeau government is cleaning up the Criminal Code, removing provisions that have been deemed unconstitutional. This includes the old restrictions on abortion. On the feature today, ARPA lawyer John Sikkema, on how this could be an opportunity to re-open the discussion on introducing an “International Standards” abortion law.

Government-sponsored porn in Alberta schools? The Alberta government is in hot water for posting links to pornography on a government-sponsored website for young students.

Québec doctors killing more of their patients: Some troubling new numbers from Quebec.

Normalizing and professionalizing euthanasia: Plans have been finalized for the first-ever professional gathering of doctors who provide “Medical Assistance in Dying”.

Manitoba’s legislature debates access to porn: An update on a private member’s resolution in the Manitoba legislature on access to pornography.

Alberta government caught in porn controversy

Theresa Ng
Theresa Ng

The Alberta government is in hot water for posting links to pornography from a government-sponsored website. The issue was uncovered by blogger Theresa Ng, who runs a site called “Informed Albertans”. Last Monday, Ng was surfing the Alberta government’s Gay-Straight Alliance Network website, a site she says is “funded and recommended” by the Alberta government. The site is organized by the “Institute for Sexual Minority Studies and Services (iSMSS)” from the University of Alberta. Ng was shocked at what she discovered. “There’s a section called ‘community supports’ intended to help kids with their GSA – their Gay-Straight Alliance. I started clicking on a few of (the links), and they led to Facebook pages, and these Facebook pages were posting articles that featured extremely sexually explicit and graphic materials, including BDSM and links to advice to pay for pornography and to visit sex clubs.” She says she published the information on her blog, and just a few days after that post, most of the links had been taken down.

However, Ng says, there’s a deeper concern at play here, because Alberta is undergoing a “massive rewrite” of the curriculum. “There’s been a lot of secrecy about who’s at the helm of that curriculum rewrite, and there’s strong reasons to suspect that iSMSS and its director, Christopher Wells, are very involved in that curriculum rewrite.” She says the concerns don’t end with “the removal of a few links.” The real question, she says, is “who is the government trusting with the care of K-12 children in the province?” Ng has started an online petition, asking Education Minister David Eggen for assurances that iSMSS won’t be involved in the curriculum rewrite.

The issue also prompted a request for a full and formal police investigation on how the web links might violate Sections 152 and 153 of the Criminal Code, which pertain to counseling minors on how to engage in sexual activity. That complaint was filed by Donna Trimble with the group “Parents for Choice in Education.”

Québec doctors killing more of their patients

Sean Murphy, Conscience Protection Project
Sean Murphy, Conscience Protection Project

The Québec government has released new statistics on the incidence of euthanasia in the province. The numbers show that, in total, 449 people in Québec had their lives ended with the help of a doctor last year. Euthanasia was legalized in Québec in December of 2015; last year was the first full calendar year in which so-called “medical assistance in dying” (MAiD) was legal in that province.

The numbers also show that the rate of doctor assisted death grew as the year progressed. In the last six months of calendar 2016, the number of those deaths almost doubled from the first half of the year. Sean Murphy with the Conscience Protection Project has looked at the rates of euthanasia in Québec, both per 100,000 of population, and as a percentage of total deaths. On both counts, he says, after just one year of legal euthanasia in Québec, the numbers are well ahead of the early statistics from Belgium, which was one of the first countries to legalize doctor-assisted suicide. “The numbers in Québec – after one year of operation – are at the level that Belgium reached after 5 years, and if that rate continues throughout 2017, then it’ll exceed what Belgium reached after 9 years.”

Murphy’s organization is dedicated to preserving the conscience rights of doctors and others to not have to provide these kinds of services, and he says there’s a worrying trend behind the Québec numbers. “If you have a dramatic increase in the volume of demand for the service, that can put pressure on people who don’t want to be involved.”

Normalizing and Professionalizing Euthanasia

Alex Schadenberg, Executive Director, Euthanasia Prevention Coalition
Alex Schadenberg, Executive Director, Euthanasia Prevention Coalition

A disturbing conference in Victoria, BC is slated to kick off in early June. It’s called the “Medical Assistance in Dying” conference, the first of its kind for medical professionals in Canada. Alex Schadenberg with the Euthanasia Prevention Coalition, says the whole idea is troubling. “I’m very concerned about the drift toward acceptance of more and more killing for more and more reasons; the cultural shift that appears to be going on.” Schadenberg says the purpose of the conference is also questionable, because it will “give physicians who are killing their patients a speciality to say ‘I’m part of this special group, and I’ve received training, and now we have better rules about how we’re going to do it.”

Schadenberg says it appears that what they’re trying to do is normalize “what has always been considered homicide.” He also says it would be very interesting to find out if the event is underwritten with federal funds; so far he hasn’t been able to determine that.

Manitoba Legislature debates pornography access resolution

MLA James Teitsma
MLA James Teitsma

The Manitoba legislature debated a Private Members Resolution on pornography last week. The resolution mirrored Member of Parliament Arnold Viersen’s Motion 47, asking the federal government to look at the health impacts of easily-accessible online pornography.

The Manitoba resolution was sponsored by Radisson MLA James Teitsma. He says at the end of the day, the NDP used a procedural tactic to ensure the motion would not be able to come to a vote; essentially, they filibustered it. “A lot of the comments that NDP members made when they spoke about the resolution were positive, but they also played what they considered to be a political card by exercising their right to stretch out the discussion so that it wouldn’t come to a vote.”

Teitsma says it’s difficult to understand why the NDP would actually do this, but it’s part of the culture in the Manitoba legislature right now. “The NDP is divided amongst themselves, and have lost the trust of voters. I had (actually) hoped they had learned their lesson because back in the fall, we had a Member bring forward a Bill that would recognize September as ‘Childhood Cancer Awareness Month.’ There was no reason to oppose it whatsoever, but (the NDP) chose to talk that one out as well, and boy, were they ever surprised when the Facebook page of the House Leader got plastered with stories of parents whose children had had cancer or had even died from cancer.”

The motion cannot be brought back for reconsideration, but Teitsma says the fact that he had good support in the gallery during the debate means his message definitely got out there. “I had over 60 people come, including families who had struggled with this sort of thing.” He says their presence in the gallery “really changed the tone and the tenor of the debate. By being there, the debate was more respectful, and certainly there’s a sense of accountability that the NDP members now have. They know that I don’t stand alone.”

LN Feature: A Chance to Revisit an Abortion Law

ARPA Canada lawyer, John Sikkema
ARPA Canada lawyer, John Sikkema

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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