Oct. 1, 2004. 06:19 AMNAOMI POWELL
"I don't like this decision at all," said Pamela Cross, legal director for the Ontario Women's Justice Network. "I don't think it's appropriate in terms of protecting this woman's unborn child or her civil rights."
Pamela Prior-Glen and her husband James pleaded guilty Monday to criminal negligence causing the death of their newborn son, Jessie. The infant died May 24, 2003, four days after he was born at home in a toilet. Court was told the couple failed to seek medical help for Jessie, who was born 12 to 16 weeks prematurely, or to tell authorities about his birth because they were worried their nine children would be taken away.
Justice Norman Douglas gave the couple an 18-month conditional sentence of house arrest and three years of probation.
He also ordered Prior-Glen, now five months pregnant with her 11th child, to undergo pregnancy tests for the next 18 months. And for the next 4 1/2 years, the couple must report any pregnancy to Family and Children's Services within 24 hours of learning about it.
In handing down the sentence, Douglas vowed to protect "any future child the couple might have."
The unusual terms were jointly submitted by defence and crown lawyers.
But the court may be "overstepping its limits" in ordering the pregnancy tests, said Bernard Dickens, professor emeritus of health law and policy at the University of Toronto.
Even if Prior-Glen was found negligent, he said, the court can't order an invasive procedure like pregnancy testing.
"The Supreme Court has made it clear that what women do with their bodies is not to be subject to third-party intervention," said Dickens, who has a special interest in reproductive rights. "If they know a woman is pregnant they can't do anything about it until the child is born."
The Supreme Court overturned a 1996 decision by a lower court that allowed Winnipeg Child and Family Services to have a pregnant woman detained against her will.
The agency asked that the woman, who had a severe substance abuse problem, be detained on psychiatric grounds even though psychiatric evidence did not support this conclusion.
"Essentially (the courts) agreed that if she was a danger to the child, it was nevertheless outside the jurisdiction of the court and CFS until the child is born," said Dickens. "To require (Pamela Prior-Glen) to submit to a blood or urine test may go too far, I think. And I'd be particularly concerned if it is blood testing we're talking about."
Although he agrees the court's ruling may be "invasive," Toronto lawyer Clayton Ruby said it appears justifiable.
"I can't say it's normal, but I'm not sure it's unconstitutional given the context," said Ruby. "It does sound justifiable given manslaughter is involved."
Pamela Prior-Glen's defence lawyer, Joseph Pellizzari, said the decision was unusual, but "perfectly legal in these circumstances." Although the ruling is vague in terms of how the pregnancy tests will be performed, he said he is sure the tests will be conducted in the least invasive manner possible.
However, Cross says any invasive procedure infringes on a woman's civil liberties.
"When we start to regulate women's bodies before they give birth, and in this case before the woman is even pregnant, I have serious concerns about her rights," she said.