Canada Wrestles With Human Dignity of Child: Does It Depend on Context?

Canadians are wrestling with the ambiguous situational ethics of abortion and infanticide, but have not achieved any clarity as yet.

Mom asks charge of hiding baby's body be dropped
Teens found human remains in March 2007
The Sault Star
by Maria Calabrese

Canada has never come up with a definition of "fetus" or "child," and that is exposing a North Bay mother to a public trial based on evidence that doesn't exist, her lawyer argued Tuesday.

Even the highly charged Henry Morgentaler case that brought abortion rights to the Supreme Court of Canada more than 20 years ago failed to define when the rights of a pregnant woman stop and the rights of the fetus begin, said defence counsel Erin Lainevool.

"We do not put people on trial for doing things we cannot understand, that we frown upon, or that upset us, simply because we want answers," Lainevool told court.

"Public outcry, shock, sadness or the need for answers are not the purview of the criminal justice system unless there is also evidence."

She is representing Tabatha Etches, a 27-year-old North Bay woman linked by DNA to the decomposing remains of an eight-pound, four-ounce baby boy. Two teens found the remains wrapped in a towel in a garbage bag near a walking trail in a wooded area near Laurentian public school March 30, 2007.

A judge acquitted her of infanticide and showing indignity to a human being or human remains, mainly because there is no cause of death or proof the child was born alive.

In Canada, a fetus has no rights and is not legally considered a human being.

That same judge ordered Etches to stand trial for failing to get help with childbirth -- which carries a maximum jail sentence of five years -- and concealing the body of a child -- with a sentence of up to two years imprisonment.

Lainevool asked a higher court to review that ruling, saying the judge overstepped his role by allowing a weak case to go to trial.

Superior Court Justice Paul Rivard will give his decision at a later date whether to acquit Etches on the remaining charges.

While the defence argues the charge of concealing a child's body exposes women to prosecution if they miscarry at home without medical intervention, the Crown says there is other evidence in this case that merits the charges going to trial.

That evidence is currently protected by a publication ban.

Crown attorney Paul Condon refers to the Canadian Labour Code that uses the terms "child" and "fetus" interchangeably, although the defence said that's a different context involving the protection of pregnant women and nursing mothers exposed to hazardous workplaces.

The Crown also refers to the federal Assisted Human Reproduction Act which defines a fetus as a human organism beginning on its 57th day after creation and ending at birth. It does not define "child."

Court heard Ontario's Vital Statistics Act only offers a definition of birth as a live fetus from the mother.

The problem is Canada's Criminal Code is based on English law drawn up centuries before Canada was even a country, Lainevool said.

"We've adopted legislation and simply incorporated it into our system. But the society that existed at that time is very different than the society that exists today in terms of women's rights, in terms of health, in terms of technology, in terms of abortion," she said.