"should not have to pretend otherwise"

Father Raymond J. DeSouza had a post up at Full Comment (presumably mirrored in the print edition of the National Post) last week which bore the editorial lead-in "Canada’s permissive abortion regime should not prevent laws that address crimes against pregnant women".  What has prompted DeSouza's column is a lacuna in Canadian criminal law which I touched on in Chapter Eight of Under Arrest - Canadian Laws You Won't Believe - namely, that it is not a crime to kill an unborn child.  To take the most egregious example, if someone stabs in the stomach a woman who is eight-and-a-half months pregnant thereby killing her unborn child, the attacker could not be charged with homicide (assuming, of course, that the mother survives the attack).  This is the result of a curious, but deliberate, interplay of various provisions in the Criminal Code: "homicide" only occurs when there has been the death of a human being, and a child only becomes a "human being" once it has "completely proceeded, in a living state, from the body of its mother".  Prior to that "complete procession", there isn't a "human being" which can be killed for purposes of the Criminal Code (there is one minor exception, which requires some pretty odd circumstances to be triggered: section 223(2) provides that if a person has caused an injury to a child before its birth which causes it die after it has already emerged alive from the womb, then a homicide charge can be made out.

This gap in the law, which was recognized as problematic by the Law Reform Commission of Canada in its 1989 Working Paper Crimes Against the Foetus, arose in the 1969 amendments to the Criminal Code.  Prior to that year, the Criminal Code made it a specific crime (section 271(1)) to cause the death of a "child" which had not yet become a "human being".  The 1969 amendments, which sought to replace the previous outright prohibition on abortion with a "therapeutic abortion" mechanism (which involved seeking approval from a committee of doctors), also resulted in the deletion of the earlier quasi-homicide language of section 271(1) - and when, in the Morgentaler decision in 1988, the Supreme Court struck down the therapeutic abortion provisions, the old provisions didn't, of course, magically spring back to life.  And so, we have the result which obtains today: there is no "crime" of killing a fetus, even if such killing occurs against the will of the mother.