Law Times

LAW TIMES / JUNE 30 - JULY 7, 2008 Back door abortion law it's perfectly legal. That way Prime Minister Ste- T phen Harper does not have to break the election promise he made not to recriminalize abortion. His backbench Conservative MPs are doing the job for him, with a little help from some Lib- erals. It's a complicated plan, us- ing four members' private bills which would give a fetus the legal status of an "unborn child" — a major step towards going to the Supreme Court with a Charter challenge to ban abortion. The "unborn child" strategy has worked in 37 U.S. states where abortion has been made illegal or severely restricted. Canada is the only major de- veloped country where there is no abortion law. This angers the Christian Right. Conservative MPs have been getting help from U.S. Right to Life groups, the Catholic Church, and evangelical Protestant groups. Since the Harper Conservatives came to power, influential Christian Right groups and "pro-family" lob- bies have sprung up all over town. The strategy starts with bill C-484, the Unborn Victims of Crime Act, sponsored by Con- servative MP Ken Epp, a strong Mennonite Christian. It would create a separate Criminal Code offence for killing or injuring an "unborn child" during an attack on a pregnant woman. A killer of a pregnant woman would be charged with double murder. Women's groups fear it would also be used to charge wom- en who seek illegal abortions with harming their "unborn child." Un- der such laws in the U.S., women using drugs that abused their fetus have been jailed and had their chil- dren taken away. Opponents call the separate of- fence provision useless. Under s. 718 (2) of the Criminal Code, the presence of mitigating circumstances (such as the murder of a fetus) already allows a judge to hand down a heavier sentence. The whole thing is just a pretext, they say, to sneak the "unborn child" wording into the code to use later in a Charter challenge against abortion. The word "fetus" is replaced by "un- born child," and "pregnant woman" by "mother," throughout the bill. Supporters are halfway there. The bill passed second reading 147 to 133 on March 5 and is on its way to committee in the fall. All but four Conservatives voted for the bill, along with 27 Liberals and one New Democrat. The Bloc Québécois and New Democrats voted against, and so did Heritage Minister Josée Verner and Transport Minister Lawrence Cannon. Liberal Leader Stéphane Dion and six other Liberals were absent. Dion came back and said he'd fight all the way for a woman's right to safe, legal abortions. He'll get his chance in the fall. Liberal MP Massimo Pacetti of Laval, Que. said he went along with the bill, thinking he was just doing something nice for women. he Conservatives are bring- ing in anti-abortion legisla- tion by the back door. And The Hill By Richard Cleroux Bill C-338, sponsored by a Liberal MP Paul Steckle, crimi- nalizes abortion after 20 weeks of pregnancy, unless the mother suf- fers from mental problems or the fetus has severe anomalies. This legislation bothers doctors. How to tell when 20 weeks (abortion legal) is not 21 weeks (abortion criminal). Bill C-537, "protection of con- science in the health-care profession" (sounds like freedom), is sponsored by Conservative MP Maurice Vel- lacott. It would allow doctors and nurses to refuse to perform medical acts — including abortions — that are against their religion. Abortion refusal in public hospitals, here we come. But good news for religious Muslim and Orthodox Jewish health professionals. Bill C-543 "abuse of pregnant women" would make attacking a pregnant women an "aggravat- ing" factor. Actually, it's already in the Crim- inal Code. And what about non- pregnant women? MPs who support the legislation meet regularly for a prayer break- fast in a chapel built for religious worship inside the Parliament Buildings. Lately, to their surprise, they've been joined by Muslim and Jewish MPs, who happen to share their views on abortion. The opponents have begun to organize. The Quebec College of Physicians has come out against all four bills. The college fears that criminalizing abortion will criminalize doctors. Yves Robert, the secretary of the college, sent letters to all four party leaders urging them to defeat the legislation. "There is already a Criminal Code definition of a child," said Robert. "A child is a person from the moment of birth until adulthood." Robert says the MPs are using private bills to criminalize abortion without stirring up a public debate "and that's what we denounce." The Quebec National Assem- bly recently passed a motion urg- ing defeat of the federal legislation. It was unanimous. Seventy public groups have voiced opposition including an- ti-violence groups, women's shel- ters, medical organizations, legal associations, drug policy groups, and labor unions. Nineteen of the 20 groups backing the legislation are anti- abortion, religious, or right- wing conservatives. Public opinion polls show that, when asked if they support a law to fight violence against pregnant wom- en, respondents are overwhelmingly in favor of the legislation. Why not? It's a motherhood issue isn't it? LT Richard Cleroux is a freelance re- porter and columnist on Parliament Hill. His e-mail address is richard cleroux@rogers.com. www.lawtimesnews.com ment to the Supreme Court of Canada. But what happened P to the encouraging, al- beit faint, voices about racial and cultural di- versification of the Su- preme Court bench that had begun to be heard before his first appointment in 2006? Then-Liberal minister of justice Irwin Cotler raised for the first time the possibility of appointing an aboriginal per- son to the Supreme Court. The august Canadian Bar Association openly canvassed also for the appointment of a qualified minority candidate. Can you imagine in this day and age and modern era if there were no female judg- es at the Supreme Court? This country would be the judicial laughingstock of the western world. No minister of justice or the CBA has now talked about the appointment of an aboriginal person or a racial minority. Everybody has been re- cruited to only talk about an appointment from either New Brunswick or New- foundland. According to some media reports, it is stated that in terms of practice, it is the turn of New Brunswick. New- foundland has had no justice from there since it joined the Confederation. So, some commentators have stated that it should be Newfound- land's turn this time around. People are not prepared to talk about breaking this historic quota system and start to talk about appointing someone from a community that has had no one in the Supreme Court since Canada Time for SCC to represent diversity BY MUNYONZWE HAMALENGWA For Law Times rime Minister Stephen Harper will soon make his second appoint- was founded in 1867 and which has formed the fabric of this nation — the aborigi- nal community. At least New Brunswick has had judges appointed to the Supreme Court. New- foundland has been repre- sented by the appointment of Speaker's anglophone and white judges from other provinces. Aboriginals and other ra- cial minorities have had no representation of people like them forever. People talk about there being two legal systems — common law brought by the English and civil law brought by the French. How about aboriginal law, which is indigenous to this re- gion of the world? Many of the complex le- gal issues that have plagued Canada engage the aborigi- nal questions of treaties, land claims, residential schools' sexual abuse, fish- ing, hunting, taxation, and other issues peculiar to the existence of and interaction of the larger society with the native communities. For a century or more the aboriginals were short changed in the court deci- sions involving those issues because, among other rea- sons, there were no native justices to decide these is- sues along with their English and French brethren — just like in the U.S., most deci- sions involving blacks were wrongly decided for centu- ries because there were no black justices to paint a dif- ferent stroke. Every person ought to know that the decisions of the courts do not find themselves on paper in a prefabricated fashion. They are woven by sitting judges who incorpo- rate their prejudices, biases, training, experiences, and cultural milieu. Nelson Mandela, as an ac- Corner cused person in 1962, stated the impression represented by the composition of the judiciary and other partici- pants in the administra- tion of justice (should it be injustice?) in the following terms which apply with poignancy to the current Supreme Court bench: "Why is it that in the courtroom I face a white magistrate, am confronted by a white pros- ecutor and escorted into the dock by a white orderly? Can anyone honestly and seri- ously suggest that in this at- mosphere the scales of justice are evenly balanced?" In 1993, Mandela returned to the same theme when he addressed the Law Society of the Transvaal, which was still predominantly white, a few months before he became president of South Africa, again with resonance to Can- ada's judiciary, particularly the Supreme Court. He stated: "Let us look around us. Is this gathering of lawyers representative of the people of South Africa? The judiciary, the bar, the major institutions of society, the attorney's profession is dominated by white [faces]." Sounds like Canada's Su- preme Court. It is time for that court to represent the racial and cul- tural diversity of Canada. Is Prime Minister Harper up to the task? That is the question as we enter the sun- set years of the first decade of the 21st century. LT Munyonzwe Hamelengwa is a lawyer who practises in To- ronto. He also teaches a course in legal process at Osgoode Hall Law School. His web site address is www.munyonzwe hamalengwa.ca. PAGE 7

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