Kaake case prompts Windsor lawyer to call for change

The law should be changed to allow for two murder charges in the case of someone killing a pregnant woman, says a Windsor, Ont., lawyer weighing in on the death of Cassandra Kaake, who was seven months pregnant when her body was found in a burned out home.

• Matthew Brush charged with murder of Cassandra Kaake

"I would like to see a provision that would allow for a charge of murder when we're dealing with a seven-month pregnant woman. It's clear that the person would have to see that the lady was pregnant," said Laura Joy, who has been practising criminal law for more than 20 years.

Police charged Matthew Brush, 26, from LaSalle with first degree murder in Kaake's death last week, leaving some questioning why he wasn't facing two murder charges.

"Unfortunately, the [Criminal] Code, the way it's presently written, would not allow for a double murder charge," explained Joy on CBC's Windsor Morning. "The reason being is an unborn child is not treated as a human being for the purposes of the Criminal Code."

Kaake was found dead at the scene of a house fire on Benjamin Avenue on Dec. 11.

A post-mortem examination found Kaake died of blood loss caused by severe trauma. Police said the fire was intentionally set.

Changes to the law atouchy debate

Joy said issue is a touchy debate, and making revisions to the law is difficult.

"Nobody wants to get to be stepping on the other legislation that deals with a woman's right to choose," said Joy.

Afetus"does not technically become a human being until there's some type of birth ...so it's very difficult.
The issue becomes in the definition of what a human being is," sheadded.

Joy said there could be a way to draft a law that could differentiate between a woman's right to choose to have an abortion and a violent crime committed by a third party.

In the Kaake case, it would be assumed the 31-year-old would have been intending to have the baby, said Joy.

"As long as it's clear that it doesn't infringe on the right to choose and all the problems that could come if we start playing with those laws, I believe that parliament can table a bill that protects the woman and the baby in this circumstance."

Brush is facing additional charges including of breaking and entering, arson and indecent interference with a dead body.

He is scheduled to appear in court on Wednesday.