Still no protection for unborn victims of crime in Canada

By Mike Schouten and Andre Schutten

Editor’s note. This first appeared here and is reprinted with permission.

Cassandra Kaake was found bludgeoned to death. Her baby girl Molly was killed in the attack too.

Cassandra Kaake was found bludgeoned to death. Her baby girl Molly was killed in the attack too.

Media are reporting that Windsor police have made an arrest in the gruesome murder of Cassandra Kaake. Matthew Brush, 26, is charged with one count of murder. The arrest follows less than a week after Windsor police took the extraordinary step of canvassing an entire neighbourhood for voluntary DNA samples to rule neighbors out as a suspects.

While the approach taken raised very serious concerns from a privacy and civil liberties perspective, the dogged determination of the police to find the murderer is notable.

Cassandra Kaake was found bludgeoned to death in a burned-out residence on Benjamin Road on Dec. 11, 2014. Her murder is a tragedy, but she wasn’t the only one who lost a life that night. Her baby girl Molly was killed in the attack too.

Yet her daughter, though recognized as a child, is not recognized as a “human being” under Canadian criminal law because she had not yet exited her mother’s womb. And because of that legal deficiency, no murder charge will ever be laid against the person who took Molly’s life.

Police revealed that Ms. Kaake was seven months pregnant at the time of her death. According to Dr. Greg Hasen, academic director of obstetrics for the Schulich School of Medicine, Ms. Kaake’s pre-born child was fully developed at 30 weeks gestation. Molly was a person, a human being with a unique story. But there will never be justice for Molly. This needs to change.

It was only six years ago that change nearly occurred. In 2008, Member of Parliament Ken Epp introduced Bill C-484, which would have directly addressed the injustice carried out against Ms. Kaake and her daughter Molly. The Unborn Victims of Crime Act, as it was called, would have made it a criminal offence to cause harm to a pre-born child during the perpetration of an offence on the child’s mother.

Bill C-484 passed second reading in the House of Commons. It had broad, multi-party support. But an election was called and the bill never progressed any further.

Today there is still widespread support for a law that would punish offenders who harm a prenatal child in an attack. Such a law would not create a new legal right to abortion, nor would it restrict abortion in any way. It would simply address tragedies like the one the people of Windsor are grappling with now.

In the book “Complications: Abortion’s Impact on Women,” considerable attention is given by the authors to the issue of intimate partner violence against pregnant women. An unborn victims of crime law addresses this issue and is a much-needed deterrent to committing violence against pregnant women. An Unborn Victims of Crime Act would send a message that the child is also a victim of the crime if he or she is injured or killed when his or her mother is attacked.

The Supreme Court of Canada has repeatedly said that Parliament has the power to enact laws to protect the pre-born child. An act like this will protect children of women who have chosen to carry their children to term. Without it, a woman has no meaningful recourse in law should her child sustain injuries or death due to an illegal act perpetrated against her. A pregnant woman could sustain a charge of assault against her, but her child would never receive justice.

This legislative void serves to further victimize women, their children and their families.

The determination and investment of the Windsor police to find Molly’s and Cassandra’s murderer is praiseworthy.

Unfortunately, only one has the potential to receive justice. This national tragedy should be a serious wakeup call to our elected lawmakers. It is time to address this void in our legal system and pass a law that protects and provides justice for Molly’s peers.

Mike Schouten is campaign director for WeNeedaLAW.ca. André Schutten is a lawyer with ARPA Canada.