Criminal Code’s definition of “human being”: Daniel Lerner’s interview with CBC and a legal explanation

A tragic case has taken place in Montreal the other day, but it has led to an interesting legal issue.

A man stabs his pregnant spouse. The baby is delivered alive by C-section. A few hours later, the baby dies. The man is charged with murder of the baby.

Is that correct? Is it murder? CBC’s Mark Gollom asked me that very question. You can read my interview on the subject here.

You can also read below for a breakdown of why in Canadian criminal law it is murder – but why, if the baby had been stillborn, it would not.

In Canada, anytime a person kills another human being, there is a homicide (which is not automatically a crime).

If the death was caused by an illegal act or criminal negligence, it is defined in the Criminal Code of Canada as culpable homicide.

At a minimum, any culpable homicide is the criminal offence of manslaughter.

If the person had an intention to kill, the offence is upgraded to second-degree murder. If certain articulated aggravating factors are present (i.e. the murder was planned and deliberate, the murder was committed in the course of certain other criminal offences, etc.), the charge is upgraded to first-degree murder.

Therefore, all homicide offences involve the death of a “human being”. Although there are various political and philosophical positions out there regarding what is a “human being” and when one becomes a “human being”, the Criminal Code has drawn a clear line in the sand. A baby (or “child” in the Criminal Code) only becomes a “human being” if it has “completely proceeded, in a living state, from the body of its mother, whether or not (a) it has breathed; (b) it has an independent circulation; or (c) the navel string is severed.”

So if the baby is alive at the time of birth and then dies as a result of an earlier criminal act (such as a stabbing) it is a culpable homicide. However, if the baby was stillborn as a result of the injuries, it cannot be a culpable homicide as the baby would never have met the criminal law definition of “human being”. It would still be a very significant aggravating factor on sentencing for the criminal offences against the mother, but it can only be a separate criminal offence if the baby was alive at the time of birth.

What does that mean from a more political point of view? I’ll leave that for the other people interviewed for the article.