On Dec. 11, 2014 Cassandra Kaake, 31, was found bludgeoned to death in her scorched Windsor home by fire fighters. She was seven months pregnant at the time of her death meaning both she and her unborn baby were killed, but only one of them was recognized by Canadian law as being a victim of homicide. The legal rationale is that because her unborn baby wasn’t a living being completely separate from her mother’s body at the time of her death the homicide of a legal human, or “person,” was only done to the mother.
The exact legal language comes from a 1991 case regarding two midwives who accidently killed a preborn baby just as the child was traveling through the mother’s birth canal. The Supreme Court upheld the notion that unborn children have no legal rights, pointing to Section 223 of the Canadian Criminal Code, which states, “A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother.” Similar to Cassandra’s case, the midwives were not criminally charged for killing an unborn child. Even if the baby was born, as in he or she comes out of the mother’s body, if the baby’s umbilical cord wasn’t detached from the mother at the time of their death, according to Sec. 223, the baby still has no legal rights, including, but not limited to, the right to life.
Kaake’s husband, Jeff Durham, created Molly Matters, an organization devoted to changing these types of laws by recognizing unborn children as legal humans so that they too can be treated as victims of crime. Molly was the name of his unborn child who was killed. She wasn’t recognized by Canadian law, but if this incident occurred a few hundred miles south she would have been. The Unborn Victims of Violence Act, 2004, is a United States law which recognizes a child in utero as a legal victim if they are injured or killed during the commission of any of the over 60 listed federal crimes of violence. The law defines “child in utero” as “a member of the species Homo sapiens, at any stage of development, who is carried in the womb.” Although there are people who say this legislation is a pro-life victory, the law explicitly states that it wouldn’t interfere with the practices of abortionists and those seeking for an abortion.
There are a few questions that could be brought up after the making of such a law. For example, are United States lawmakers saying that abortion (a medical produce that ends the life of a human fetus or embryo) is not a violent act or are they saying only abortionists are legally allowed to harm a child in utero to the point of death? By having this law it’s like the US is saying the state approves of certain types of killing, by certain types of people. This is probably why a lot of Canadian lawmakers chose to not get involved in this.
In 2007, Conservative MP Ken Epp introduced a private member’s bill that would allow charges to be laid for the death of an unborn child if the mother is a victim of a crime. For example, if a criminal stabs a pregnant woman in the womb or stomach, which causes the unborn baby to die, the criminal would get more than just assault with a deadly weapon. The bill passed second reading with some support from all parties, perhaps since MPs recognize the life of an unborn child, but other MPs, Liberal and NDP, insisted that this was an attempt to re-impose abortion restrictions. Said then-NDP leader Jack Layton: “It’s plainly the start of the decriminalization of abortion, and that’s why the NDP opposes it.” The bill was scrapped by then-justice minister Rob Nicholson just prior to the 2008 general election.
People like Jeff Durham are not giving up the fight to have unborn children recognized under Canadian law any time soon. “It is hard to imagine that in Canada there is no law against taking the life of an unborn child while committing a violent crime,” said Durham on his Molly Matters Facebook page. “Regardless of the mother’s choice to nurture her child,” he continues, “and regardless of the families that plan for and have love for that life, we need some type of protection for the unborn. Molly Matters is a movement to have the voice of the unborn victim acknowledged and their life made accountable for with law.”
Durham has written to his local MP Jeff Watson asking that the act be re-tabled in the House of Commons. Watson, who supported Epp’s bill and expressed support for Molly Matters, told Durham that “well-organized special interest groups” were responsible to the bill’s failure and that he did not expect to see a similar law brought forward any time soon.