There’s an interesting criminal law question in a new charge police have added against the driver involved in a horrific London, Ont., crash that claimed the life of a young girl and, days later, that of her newborn sister.
In July, Danah McKinnon-Bozek, who was eight months pregnant, was with her two daughters at a Costco when a car slammed into the storefront and injured all three of them. One of McKinnon-Bozek’s daughters died of her injuries and after she gave birth through an emergency C-section, the infant, too, passed away days later.
Police have charged the driver on two counts of criminal negligence causing death, but the charge related to the infant raises the question of whether police can lay a charge over the death of someone who wasn’t, for the purposes of the Criminal Code, a person at the time of the incident.
The Crown will likely evoke a little-known subsection in the Criminal Code that deals with cases like this.
Subsection 2 of s. 223 of the Criminal Code reads: “A person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being.”
It’s an extremely time-sensitive and medically dependent section one lawyer calls a “glitch” in the system.
“It highlights a very strange glitch in our criminal law, which is if the child dies before being born, you can’t be charged with the death of a person,” says Howard Rubel of Toronto law firm Heller Rubel.
“I call it a glitch because at some point, it becomes very, very short term temporally as to whether the same action can lead to a homicide-type charge or no charge at all,” he adds. “It’s rather strange that so much legal consequence can be determined just by a fleeting few minutes on whether a child survives birth or not.”
Several Supreme Court of Canada decisions — R. v. Morgentaler, Borowski v. Canada (Attorney General), and Tremblay v. Daigle — have established that a fetus has no legal status as a person in Canada. The decisions have arisen in relation to claims for the right to life and security of fetuses. The Criminal Code is in fact very specific about when it considers a baby to have been born alive.
Section 223 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, whether or not (a) it has breathed; (b) it has an independent circulation; or (c) the navel string is severed.”
The issue raised by the Costco case is a different one as the infant was born and died days after the collision. But lawyer Lorne Sabsay says the Crown will likely have to prove the baby was injured in vitro during the collision.
“If it was the fact that the mother was injured and as a result of the injuries to the mother she couldn’t sustain the life of her unborn child, then I think it’s arguable that the subsection does not apply,” he says.
“If, however, the Crown can show that there were injuries to the actual child itself, which was born alive and subsequently succumbed to those injuries, I think by virtue of s. 223, subsection 2 . . . that they could be successful.”
Criminal lawyer Gary Grill also believes the charge in relation to the infant could have merit.
“I think the point was the fetus was still alive in vitro but then after the C-section it died. If they can establish a causation from the earlier point to that death, then the charge might be sustainable,” says Grill, a certified specialist in criminal law.
“If they can say at the time the person became [a person], so to speak, and on the day of their birth they died as a result of an action even prior to their existence, then perhaps that person is culpable in their death,” he adds.