Baby delivered by C-section after attack on mother is homicide victim under Canadian law

A baby in Montreal who died shortly after deliveryby caesarean section after the mother was repeatedly stabbed is considered a homicidevictim under Canadian law.

Even though the stabbing occurred while the fetus was in the womb, and not legally considered a human being, the alleged attacker was able to be charged with murder because the baby was born anddied only hours after the birth.

Under Canada'sCriminal Code, "achild becomes a human being when it has completely proceeded, in a living state, from the body of its mother, whether or not (a) ithas breathed;(b) ithasanindependent circulation; or (c) thenavel stringissevered."

"So, if the child was alive, even for a moment, outside the child'smother's body, it wouldbe considered a legal person such that you could be charged with murdering that child if the child didn't survive," said Toronto-based lawyer Daniel Brown, a specialist in criminal law.

DanielLerner, a Toronto-based lawyer and former Ontario Crown prosecutor, said that just because the baby wasn't legally considered a human being when the stabbing occurred doesn't mean that action didn't cause the baby'seventual death.

"If the accused did an illegal act that caused that human being's death, then it's culpable homicide," he said.

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The stabbing of RajaGhazi, who wasseven to eight months pregnant at the time, occurred early Monday in Montreal's Montreal North neighbourhood. Shewas taken to hospital, where her child was delivered by C-section.The baby was initially listed in critical conditionbut died hours later.

Ghazi's husband, Sofiane Ghazi, 37, has been charged withfirst-degree murder of the baby and seven other offences, including the attempted murder of his wife,death threats and car theft.

Cases such as this are rare andforce the courts to have to contendwith the legal definition ofhuman life.

A case similar to the one in Montrealremains outstandingin Toronto.Last May,CandiceRochelleBobbwas fatally shot while in the back seat of a car. Her 24-week-old baby wasdelivered by an emergencyC-sectionbut died three weeks later.

The baby's death was later determined to be a homicide, and Toronto police have said they will lay two murder charges, one for the death of the mother and one for the death of the babyonce the perpetrator has been arrested.

No murder charge for death offetus

The legal situation changes significantly, however, whenafetus doesn't survive inuteroas a result of an act againstthemother.

In those cases, the attacker wouldnot be charged with murder because afetus is not considered a living person andhad not left the body in a living state.

"It would be treated as an aggravatingfeature onsentencing, thatthe motherwas pregnant andlost the fetus as a resultof this," Brown said."But it wouldn'tamount to a separatemurder charge.

"In order to be found guilty of murder, you have to kill someone who was living."

In order for the Criminal Code to be in line with abortionrights and for doctors who perform the procedure to not be at risk of being charged with murder,Canadahad to preciselydefine when human life begins.

"So, the only wayto do it is to createa brightline when a fetus receivessomesort ofrecognition as a living person," Brown said.

Implicationsfor abortion rights

There have been unsuccessful attempts to change the Criminal Code and make the death of a fetus a separate offence. Last year, a private member's bill that would "make it a separate offence to cause injury or death to a pre-born childduring the commission of an offence against the child's mother" was defeated in the House of Commons.

Advocacy groups such asthe Abortion Rights Coalition of Canada have fought against such proposals, arguing they areattempts to weaken women's righttoan abortion.

Joyce Arthur, president of the organization, said she has no problem with how the Criminal Code is applied to those who are charged in the killing of a baby if an attack on apregnantwoman leads to thebaby's deathafter it has emerged from the womb.

"I thinkthe law is fair in that sense," she said.

But Arthur said her group opposes any kind of "fetal homicide law" that would ascribe rights to the fetus. She said if something happens to afetus while it is inside a woman, it should be considered an attack against "her and her alone" because the fetus is not a human being under the law.

"As soon as you ascribe rights to a fetus,it compromises women's rights, so that's what we don't want."