Candice Rochelle Bobb's infant son only survived three weeks, but the fact that doctors delivered the boy by C-section after his mother had been shot has important legal implications.
Should investigators arrest someone for the killing of Ms. Bobb, the suspect could also be charged in the death of her newborn, a development that would not have been possible if the boy hadn't been delivered in the emergency ward of Etobicoke General Hospital.
Constable Dave Hopkinson said that police are in the process of speaking with Crown officials to determine whether charges in the baby's death would be feasible.
Police said Sunday evening that the boy died at 7:10 p.m. He had been born prematurely – at five months – on May 15 after his pregnant mother was fatally shot in Toronto's Rexdale neighbourhood.
The person who fired at the car, in which Ms. Bobb was a passenger, remains at large.
Canadian law confers the legal status of human being to a baby who has left its mother's womb – but not to fetuses. Someone who kills a pregnant woman would be charged in connection with her death but not that of her unborn child.
However, if the infant is eventually born, one can be accused of killing that child, even if the injury happened before the birth.
In one notable case, which unfolded in the winter of 1981 in a restaurant in a rough part of Winnipeg's Main Street, a woman named Sandra Prince heard another woman, Bernice Daniels, insult her. Ms. Prince pulled a knife from her boot and stabbed Ms. Daniels, who was 25 weeks pregnant. The stab wound infected Ms. Daniels's amniotic fluid, and she gave birth prematurely. Her baby died 19 minutes later.
Under Section 223 (1) of the Criminal Code, a child becomes a human being when he or she has completely left the body of the mother, even if the newborn has yet to take a breath, has no independent blood circulation or has not had its umbilical cord severed.
Furthermore, Section 223 (2) says a person can be considered to have committed a homicide when causing an injury before birth that results in the child dying after being delivered.
In the Winnipeg case, Ms. Prince said she wasn't aware that Ms. Daniels was pregnant. She was convicted of manslaughter and sentenced to 45 days in jail in addition to the six months she had already served for wounding Ms. Daniels.
In other prominent cases, doctors were not able to deliver the child. In 2007, Aysun Sesen, a pregnant Toronto woman, was stabbed by her common-law husband, Turan Cocelli. An emergency C-section was performed, but the child was stillborn. Mr. Cocelli was convicted of her murder but was not held responsible for the death of the unborn child.
In 2007, Ken Epp, then a Conservative MP, proposed a private bill that would make it a crime to kill or injure an unborn child. Bill C-484, the Unborn Victims of Crime Act, passed second reading in March, 2008, with then-prime minister Stephen Harper among those voting in favour. However, six months later, on the eve of a federal election, the Conservative government abandoned the bill, citing criticism that it could be interpreted as defining fetal rights and criminalizing abortion.
"Our government will not reopen the debate on abortion," then-justice minister Rob Nicholson said in explaining why the government dropped the bill.
"The legal status of the fetus is a really thorny issue, and except for those who have a strong 'fetal rights' perspective, most lawmakers seek to avoid it," Martha Shaffer, an associate professor at the University of Toronto's Faculty of Law, said in an interview.
Another private bill, C-225, proposed by Conservative MP Cathay Wagantall, would create a new offence for injuring or causing the death of child while assaulting or killing a pregnant woman.
In an interview, Ms. Wagantall said her bill is aimed at offenders who intentionally assault or kill a pregnant woman. The bill is drafted in such a way as not to change the definition of a human being and wouldn't have an impact on abortion rights, she said.
With a report from The Canadian Press