This enactment amends the Criminal Code to make it an offence to cause injury or death to a preborn child while committing or attempting to commit an offence against a pregnant woman and to add pregnancy as an aggravating circumstance for the purpose of sentencing.

Preamble

Whereas Cassie Kaake was seven months pregnant and eagerly anticipating the birth of her daughter Molly when she was brutally murdered in Windsor, Ontario, in 2014;

Whereas no charges could be laid for Molly’s death because existing criminal law does not recognize the injury or death caused to a preborn child as a separate offence when a pregnant woman is the victim of a crime, even if the sole purpose of her attacker is to kill her child;

Whereas not being considered a human being under the Criminal Code does not mean that a preborn child does not deserve protection under the law;

Whereas a majority of Canadians support the adoption of legislation that would make it a separate offence to cause injury or death to a preborn child during the commission of an offence against the child’s mother;

Whereas Parliament wishes to address this gap in the law and allow for two charges to be laid in such circumstances;

And whereas Parliament wishes to more strongly denounce violence against pregnant women by explicitly including pregnancy as an aggravating circumstance in sentencing;

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Definition of preborn child

238.‍1 (1) For the purposes of this section, preborn child means a child at any stage of development that has not yet become a human being within the meaning of section 223.

Offence — causing the death of a preborn child while committing an offence

(2) Every person who, while committing or attempting to commit an offence under this Act against a female person that the person knows is pregnant, directly or indirectly causes the death of her preborn child

• (a) is guilty of an indictable offence and liable

  • (i) if the person means to cause injury or death to the preborn child or injury to the mother that the person knows is likely to cause the preborn child’s death, and is reckless as to whether death ensues or not, to imprisonment for life and to a minimum punishment of imprisonment for a term of 10 years,

  • (ii) if the person shows wanton or reckless disregard for the life or safety of the preborn child, to imprisonment for life, or

  • (iii) in any other case, to imprisonment for a term not exceeding 14 years; or

• (b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding 18 months.

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Reduced punishment

(3) An offence that would otherwise be punishable under subparagraph (2)‍(a)‍(i) may be punishable by imprisonment for life if the person who committed the offence did so in the heat of passion caused by sudden provocation as described in section 232.

Offence — injuring a preborn child while committing an offence

(4) Every person who, while committing or attempting to commit an offence under this Act against a female person that the person knows is pregnant, directly or indirectly causes injury to her preborn child

• (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years; or

• (b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding 18 months.

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Separate offence

(5) An offence referred to in this section is not included in any offence committed against the mother of the preborn child.

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  (ii.‍2) evidence that the offender, in committing the offence, abused a person who they knew was pregnant,

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Power of court to delay parole

(1.‍3) Despite section 120 of the Corrections and Conditional Release Act, if an offender receives a sentence of imprisonment, including a sentence of imprisonment for life, on conviction for an offence under subsection 238.‍1(2), the court shall order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or 10 years, whichever is less, unless the court is satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence and the objectives of specific and general deterrence would be adequately served by a period of parole ineligibility determined in accordance with that Act.