Dr. Dawg

Will the Harper Court re-criminalize abortion?

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Hoo, boy. Looks like my idle speculation of a few days ago may be borne out much more quickly than I had realized.

Some court proceedings fly under the radar. I, for one, had been completely unaware of R. v. Levkovic, 2010 ONCA 830. Here is the Ontario Appeal Court decision. Perhaps the issue at hand—the alleged concealment of a deceased child, a crime under the Criminal Code—seemed somewhat removed from the abortion question at the time. But after all the M312 nonsense, I, for one, can report that I am now fully awake.

Those parliamentary hi-jinks—there’s another motion coming up—do little concretely except to re-open the debate that Stephen Harper promised he wouldn’t re-open, and encourage his red meat social-conservative base. But the Supreme Court is another matter entirely.

We may now call it Harper’s Court. Harper has appointed five of the nine sitting justices. We have no idea where they stand on the abortion issue.

Add to that coterie Mr. Justice Louis LeBel. We know very well where he stands. As an appeal court judge in Quebec, he sided with the violent bully Jean-Guy Tremblay in Tremblay v. Daigle. It took the Supreme Court of the day to quash that judicial outrage.

The case now before them deals specifically with the undefined term “child” in the Criminal Code. The antiquated law against concealing the dead body of a child was passed well before abortion ceased to be a crime.

From the case summary:

Section 243 of the Criminal Code makes it an offence to dispose of the dead body of a child, with intent to conceal the fact that its mother has been delivered of it, whether the child died before, during or after birth. The word “child” is not defined in the Criminal Code. The remains of a human foetus were found in a garbage bag left on the balcony of the applicant’s recently vacated apartment. The applicant admitted to the police that the child was hers, the child was born in the apartment after a fall, she put the child in the bag, and she left the bag on the balcony. A pathologist could not determine the cause of death or whether the child died before, during or after birth and the Crown has not argued that the child was born alive. [emphases added]

The trial judge had struck out the word “before,” as unconstitutionally vague. The Ontario Court of Appeal reversed Levkovic’s acquittal in a unanimous ruling, and ordered a new trial. The Supreme Court has now permitted an appeal against that judgement.

The fat is now in the fire.

If the SCC rules that the term “child” includes a foetus, it is a very short hop, skip and jump to give force and effect to the invidious notion of “foetal rights.” Such a ruling would immediately begin to ripple through the jurisprudence. Effectively, the first serious blow will have been struck against a woman’s right to choose. Abortion would be well on its way to becoming re-criminalized.

In my mind’s eye,I can see chess player Stephen Harper’s slow, satisfied smile.

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This page contains a single entry by Dr. Dawg published on October 3, 2012 11:15 AM.

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