Monday, February 25, 2008

Bill C-484: I'm so confused.

If I may be so bold as to follow up on LuLu's post, the more I read the basis of Bill C-484, the more legally indefensible it gets. Ignore the fact that the actual text blatantly disagrees with the current Criminal Code of Canada, which is going to cause all kinds of hilarity in the courtroom. No, let's concentrate on the following:

This enactment amends the Criminal Code by making it an offence to injure, cause the death of or attempt to cause the death of a child before or during its birth while committing or attempting to commit an offence against the mother.

Where to even begin? Well, let's start with the obvious question -- what is it that is being made illegal? Ignoring the lesser alleged crime of "attempting" to cause the death of a fetus, let's concentrate on the clearly more serious crime of actually causing the death, shall we? So, once again, we ask, what is being made illegal here?

One might think that it's the actual "killing" of the fetus, but that would be clearly incorrect since, if that was the crime, then abortion itself would have just been criminalized. And since that's not how this is being presented, clearly that isn't the crime. So what is?

Ah, upon closer reading, it is clearly the act of killing the fetus "while committing or attempting to commit an offence against the mother." There's the critical aspect of it -- that the killing happened during the commission of an offence against the mother. So the killing itself isn't the issue -- it's the fact that it happened in a particular context. But that's still going to cause all sorts of legal ambiguity.

Let's say, theoretically, that I could cause the death of a fetus without inflicting any injury of any kind on the mother. Technically, then, I would have committed no "offense" against the mother. Ergo, I'm in the clear -- that much should be obvious from the careful wording of the bill. But the weirdness doesn't end there.

Why should the killing of a fetus be context dependent? Let's say there are two people who both, explicitly and deliberately, set out to kill the fetus of a pregnant woman, and they both succeed. Why should they be treated differently under the law? Since that's exactly what would happen if one of the two was, say, a mugger and the other was an abortion provider. They would be "guilty" of precisely the same "crime," and yet one would be criminally liable and the other would not. How thoroughly confusing.

I'm sure, with a little thought, it would get even stranger, but I believe that's enough to demonstrate just how absurd and self-contradictory this proposed legislation is. We have it proposed that it is now a crime to "kill" someone that, under the Criminal Code of Canada, it is most emphatically not a crime to kill, but it is only a "crime" in a specific context and, in fact, it isn't technically a "crime" at all outside of that context.

Oh, yeah, this is going to be amusing.


Wayne said...

Great post.

Would it not depend on the intent of the killer?

In one version the intent is to kill the fetus without the woman's consent.

The other version is killing the fetus with the woman's consent, which is should be legal.

catnip said...

Which reminds me of this.