The Relevant Case Law
38 The first authority is the Canadian case of R v Sullivan & Lemay (1986) 31 CCC (3d) 62. It went on appeal to the Court of Appeal of British Columbia (R v Sullivan & Lemay (1989) 31 BCLR (2d) 145) and to the Supreme Court of Canada (R v Sullivan & Lemay [1991] 1 SCR 489; (1991) 63 CCC (3d) 97).
39 The case involved alleged offences against two provisions of the Criminal Code of Canada:
"203 Everyone who by criminal negligence causes death to another person is guilty of an indictable offence and is liable to imprisonment for life.
204 Everyone who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and is liable to imprisonment for ten years."
40 The case involved two midwives who had assisted in a home birth. After many hours of labour the head of the baby was delivered but contractions ceased. The midwives were unable to complete the delivery. Emergency services were called but by the time the baby was taken to the hospital and finally delivered by an intern, it showed no signs of life.
41 The trial judge, sitting at first instance without a jury, found that a full term child which was in the process of being born is a "person" within the meaning of s203. Accordingly she convicted on that count. She went on to acquit on count 2. With respect to that count, the Crown did not rely on death of the child as the relevant "bodily harm" for purposes of s204 of the Criminal Code. (See 31 CCC supra at [66].) It was an additional rather than an alternative charge. The trial judge found that the relevant injuries relied upon by the Crown did not constitute bodily harm within the meaning of the provision. She added, however:
"[68] I should comment that, had I reached the opposite conclusion with respect to the 'persons' argument above, then I would have found the accused guilty on this count, because I would have concluded that the child was a part of Jewel Voth at the time of its death."
42 On appeal to the Court of Appeal of British Columbia, the appellate court came to a different conclusion on the first count. It held that a child not completely born was not considered a person in accordance with the common law of Canada. The word "person" in s203 of the Criminal Code did not extend to a foetus which was not fully born. However the Court of Appeal substituted a conviction on the second count.
43 The Court of Appeal applied the logic of its decision for allowing the appeal with respect to count 1 to count 2, when it said at 162:
"From the conclusion that the line of demarcation as a matter of law is live birth, in our opinion, for the purposes of count 2, the child when it is in the birth canal remains part of the mother, as a matter of law."
44 On appeal the Supreme Court of Canada agreed with the Court of Appeal with respect to count 1. The appeal, however, was allowed because there was, in fact, no Crown appeal against the acquittal and, save in certain circumstances identified in Canadian authority, an appellate court should not substitute a conviction for an acquittal on any count, by reason of particular provisions of the Criminal Code of Canada.
45 However, in the course of giving his reasons for reaching this conclusion Chief Justice Lamer said at 506:
"I respectfully disagree with the Crown's assertion that Sullivan and Lemay could not have been convicted on both counts in this case. The trial judge explicitly considered whether Jewel Voth had suffered bodily harm (independent of the death of the foetus) and concluded that she had not. Had the trial judge made a different finding of fact, she may well have convicted Sullivan and Lemay on both counts. Furthermore, even if no independent bodily harm was found to have occurred it will still not be impossible for Sullivan and Lemay to have been convicted on both counts. It would not have been illogical to find that bodily harm was done to Jewel Voth through the death of the foetus which was inside of and connected to her body and, at the same time, to find that the foetus was a person who could be the victim of criminal negligence causing death."
46 In Attorney-General's Reference (No 3 of 1994) the Court of Appeal and the House of Lords had before them a reference on a point of law after a murder accused was acquitted by direction of the trial judge. The facts in that case were that the respondent had stabbed his girlfriend who was, to his knowledge, pregnant with his child. The stab wounds included wounds which penetrated the uterus and the abdomen of the foetus. The injury to the foetus was not detected. The child was born grossly premature and survived for about 120 days. The issue before the court concerned the proceedings against the respondent for murder of the child.
47 In the course of dealing with a submission by defence counsel that an act causing death of the foetus was not itself an unlawful act, such an act being one the elements required to establish murder, Lord Chief Justice Taylor, who delivered the judgment of the Court of Appeal, said at 591G:
"He argues that since the foetus has no separate existence, causing an injury to it is not unlawful unless it comes within the scope of one of the statutory offences such as child destruction or abortion. We reject that submission. In law the foetus is treated as a part of the mother until it has a separate existence of its own. Thus to cause injury to the foetus is just as unlawful as any assault upon any other part of the mother."
48 His Lordship repeated this approach when dealing with the element of mens rea for murder when he said at 593G:
"In the eyes of the law the foetus is taken to be a part of the mother until it has an existence independent of the mother. Thus an intention to cause serious bodily injury to the foetus is an intention to cause serious bodily injury to a part of the mother just as an intention to injure her arm or her leg would be so viewed. Thus a consideration of whether a charge of murder can arise where the focus of the defendant's intention is exclusively the foetus falls to be considered under the head of transferred malice as is the case where the intention is focused exclusively or partially upon the mother herself."
49 His Lordship went on to consider the concept of transferred malice. He concluded at 594E-G:
"We can see no reason to hold that malice can only be transferred where the person to whom it is transferred was in existence at the time of the act causing death. It is perhaps pertinent to observe that a sufficient intention may be directed at no individual but rather there may be an indiscriminate intention which will suffice. Thus a defendant who introduces poison into baby food on a supermarket shelf with an intention to kill some wholly unidentified child is clearly guilty of murder if a child later dies from eating the poisoned food. It would be a remarkable state of affairs if such a person was only guilty of murder if a child had already been born at the date when the poison was introduced to the food. If in such cases of general malice, there is no requirement that the child should already been born, it is not easy to see why there should be a distinction drawn when malice is instead transferred from an intended victim to an unintended one."
50 The first question contained in the reference from the Attorney-General was:
"1. Subject to proof by the prosecution of the requisite intent in either case: whether the crimes of murder or manslaughter can be committed where unlawful injury is deliberately inflicted: (i) to a child in utero, (ii) to a mother carrying a child in utero, where the child is subsequently born alive, enjoys an existence independent of the mother, thereafter dies and the injuries inflicted while in utero either caused or made a substantial contribution to the death."
51 The answer given by the Court of Appeal to this question was:
"Yes. Murder or manslaughter can be committed where unlawful injury is deliberately inflicted either to a child in utero or to a mother carrying a child in utero in the circumstances postulated in the question. The requisite intent to be proved in the case of murder is an intention to kill or cause really serious bodily injury to the mother, the foetus before birth being viewed as an integral part of the mother. Such intention is appropriately modified in the case of manslaughter."
52 On appeal to the House of Lords, the House refused to answer that part of the question identified as part (i), i.e. where unlawful injury is deliberately inflicted to a child in utero. It did this because it said that this issue did not arise at the trial (see at 265-266 and 274). The child was not the object of the attack and the accused had no intent to kill, or to do serious harm, to any person other than the pregnant woman. He did not intend to cause any harm to the foetus. The issue that arises in this case was precisely the issue not answered by the House of Lords in Attorney-General's Reference (No 3 of 1994).
53 The judgments in the House of Lords concentrated on the issue of an unlawful injury directed to the mother alone, with the intention of hurting the mother alone (see e.g. at 253B). It was in the course of considering this question that Lord Mustill said at 255C-G:
"The decision of the Court of Appeal found that on the proposition that the foetus is part of the mother, so that an intention to cause really serious bodily injury to the mother is equivalent to the same intent directed towards the foetus … I must dissent from this proposition for I believe it to be wholly unfounded in fact. Obviously, no-one would assert that once M had been delivered of S, the baby and her mother were in any sense 'the same'. Not only were they physically separate, but they were each unique human beings and no doubt with many features of resemblance. The reason for the uniqueness of S was that the development of her own special characteristics has been enabled and bounded by the collection of genes handed down not only by M but also by the natural father. This collection was different from the genes which had enabled and bounded the development of M, for these had been handed down by her own mother and natural father. S and her mother were closely related but, even apart from differing environmental influences, they were not, had not been, and in the future never would be 'the same'. There was, of course, an intimate bond between the foetus and the mother, created by the total dependence of the foetus on the protected physical environment furnished by the mother, and on the supply by the mother through the physical linkage between them of the nutrients, oxygen and other substances essential to foetal life and development. The emotional bond between the mother and her unborn child was also of a very special kind. But the relationship was one of bond, not of identity. The mother and the foetus were two distinct organisms living symbiotically, not a single organism with two aspects. The mother's leg was part of the mother; the foetus was not."
54 His Lordship went on to say at 256B-D:
"I would therefore, reject the reasoning which assumes that since (in the eyes of English law) the foetus does not have the attributes which make it a 'person' it must be an adjunct of the mother. Eschewing all religious and political debate I would say that the foetus is neither. It is a unique organism. To apply to such an organism the principles of a law evolved in relation to autonomous beings is bound to mislead. I prefer, so far as binding authority permits, to start afresh …"
55 His Lordship went on to determine the appropriate approach, limited to the crime of murder. He referred to the long established rules that an intent to cause grievous bodily harm will found a conviction of murder and the inappropriateness of developing the law in a new direction based on that traditional rule. His Lordship also considered the rule of "transferred malice" but again found reasons for restricting its application. His Lordship concluded at 261-262:
"My Lords, the purpose of this inquiry has been to see whether the existing rules are based on principles sound enough to justify their extension to a case where the defendant acts without an intent to injure either the foetus or the child which it will become. In my opinion they are not. To give an affirmative answer requires a double 'transfer' of intent: first from the mother to the foetus and then from the foetus to the child as yet unborn. Then one would have to deploy the fiction (or at least the doctrine) which converts an intention to commit serious harm into the mens rea of murder. For me, this is too much. If one could find any logic in the rules I would follow it from one fiction to another, but whatever grounds there may once have been have long since disappeared. I am willing to follow old laws until they are overturned, but not to make a new law on a basis for which there is no principle."
56 Lord Hope of Craighead said at 267D-G:
"The Court of Appeal held that a foetus before birth must be taken to be an integral part of the mother, in the same way as her arm or her leg. It was for this reason that they said that the requisite intent to be proved in the case of murder, if a child was subsequently born alive and then died, was an intention to kill or to cause really serious bodily injury to the mother. I am not satisfied that this is the correct approach. The creation of an embryo from which a foetus is developed requires the bringing together of genetic material from the father as well as from the mother. The science of human fertilisation and embryology has now been developed to the point where the embryo may be created outside the mother and then placed inside her as a live embryo. This practice, not now uncommon in cases of infertility … serves to remind us that an embryo is in reality a separate organism from the mother in the moment of its conception. Its individuality is retained by it throughout its development until it achieves an independent existence on being born. So the foetus cannot be regarded as an integral part of the mother in the sense indicated by the Court of Appeal, notwithstanding its dependence upon the mother for its survival until birth."
57 The House of Lords answered the first question, with respect to murder, in the negative, i.e. that the crime of murder was not committed in the circumstances posed in (ii) of the question. However, it answered the question with respect to manslaughter in the opposite way, i.e. that the circumstances were capable of constituting manslaughter.
58 As Lord Hope of Craighead said at 268F-G:
"The mental element which is required to establish the crime of manslaughter is different from that which is required for murder. The difference may be regarded as one of degree where there is only one victim of the criminal act done by the defendant, and he intended to cause harm to the victim. In that case the only issue is whether the crime is that of murder or of manslaughter. But in the present case, where there were two alleged victims - the mother who was stabbed, to whom B intended to cause harm, and the child who was born later and then died, to whom no harm was intended - the question is not simply one of degree. An analysis is needed of the nature of the intention which requires to be established in the case of each of these two crimes."
59 His Lordship concluded that the position with respect to manslaughter was different to that with respect to murder. He noted that the crime of manslaughter can be committed even though a defendant did not intend to injure the deceased. This encompasses death as a result of gross negligence or arising from an unlawful and dangerous act. In this context his Lordship said at 270G-H:
"[I]t is unnecessary to prove that he knew that his act was likely to injure the person who died as a result of it. All that need be proved is that he intentionally did what he did, that the death was caused by it and that, applying an objective test, all sober and reasonable people would recognise the risk that some harm would result."
60 His Lordship concluded at 274D-G:
"I think, then, that the position can be summarised in this way. The intention which must be discovered is an intention to do an act which is unlawful and dangerous. In this case the act which had to be shown to be an unlawful and dangerous act was the stabbing of the child's mother. There can be no doubt that all sober and reasonable people would regard that act, within the appropriate meaning of this term, as dangerous. It is plain that it was unlawful as it was done with the intention of causing her injury. As B intended to commit that act, all the ingredients necessary for mens rea in regard to a crime of manslaughter were established, irrespective of who was the ultimate victim of it. The fact that the child whom the mother was carrying at the time was born alive and then died as a result of the stabbing is all that was needed for the offence of manslaughter when actus reus for that crime was completed by the child's death. The question, once all the other elements are satisfied, is simply one of causation. The defendant must accept all the consequences of his act, so long as the jury are satisfied that he did what he did intentionally, that what he did was unlawful and that, applying the correct test, it was also dangerous. The death of the child was unintentional, but the nature and quality of the act which caused it was such that it was criminal and therefore punishable. In my opinion that is sufficient for the offence of manslaughter. There is no need to look to the doctrine of transferred malice for a solution to the problem raised by this case so far as manslaughter is concerned."
61 In R v F this Court considered a question of law submitted by the Director of Public Prosecutions pursuant to s5A(2)(a) of the Criminal Appeal Act 1912. That question was:
"Is a child in utero who is injured through impact with a motor vehicle or through impact with any object of a motor vehicle in or on which that child in utero was being conveyed, is subsequently born, lives independently and then dies as a result of the injuries sustained, a person for the purposes of s52A of the Crimes Act 1900?"
62 The basic factual situation can be seen to be similar to that considered in Attorney-General's Reference (No 3 of 1994). A distinctive feature was that s52A of the Crimes Act did not require an intent to inflict death or grievous bodily harm. The introductory words, relevantly for present purposes, of s52A(1) are: "where the death of, or grievous bodily harm to, any person is occasioned through … impact etc." The trial judge had held that a child, whose pregnant mother was injured in the accident and who was subsequently born but died as a result of injuries sustained in the motor vehicle accident, was not a "person" within the meaning of this provision.
63 In its reasons for deciding that the question posed for its consideration should be answered in the affirmative, the Court relied on the line of authority at common law to the effect that where an unborn child receives injuries, is born alive but dies of those antenatal injuries, the perpetrator may be found guilty of homicide (see at 247C-G). It is in the context of accepting that common law principle that the judgment of Grove J, with whom McInerney and Hulme JJ agreed, referred to the Court of Appeal decision in Attorney-General's Reference (No 3 of 1994). By the application of this line of authority, Grove J concluded at 248B-C that, subject to the condition that the baby in utero is born alive, the baby is a "person" within the meaning of s52A(1)(a).
64 It should be noted that the offence under s52A is committed when either death or grievous bodily harm is occasioned to "any person". This is the same formula as is contained in s33 of the Act. However, the reasoning in R v F is not directed to the issue now before the Court, i.e. whether the foetus is part of the "person" of the mother at the time of the injury.
65 The Supreme Court of Canada returned to the issue of the relationship of a foetus and a mother in a civil legal context in Winnipeg Child & Family Services (Northwest Area) v G [1997] 3 SCR 925. The issue was whether the law of torts or the parens patriae jurisdiction of the court permit an order detaining a pregnant woman against her will, to protect her unborn child from conduct that may harm the child (see at [9]).
66 McLachlin J, as her Ladyship then was, delivered the judgment of the majority. Her Ladyship indicated at [12]:
"[T]he issue is not one of biological status, nor indeed spiritual status, but of legal status."
67 She went on to quote at [12] from the decision of the Supreme Court of Canada in Tremblay v Daigle [1989] 2 SCR 530:
"The task of properly classifying a foetus in law and in science are different pursuits. Ascribing personhood to a foetus in law is a fundamentally normative task. It results in the recognition of rights and duties - a matter which falls outside the concerns of scientific classification. In short, this court's task is a legal one. Decisions based upon broad social, political, moral and economic choices are more appropriately left to the legislature."
68 McLachlin J went on to note the line of authority in Canada which had acknowledged that injury to a foetus was actionable in negligence, but that the right to sue did not arise until the infant was born (at [13]). Her Ladyship also referred to Australian cases to the same effect (Watt v Rama [1972] VR 353).
69 In the course of her reasoning her Ladyship said at [27]:
"Before birth the mother and unborn child are one in the sense that 'the life of the foetus is intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman'."