PREGNANT CRACK DEALER AGREES TO JAIL TO PROTECT FETUS

A pregnant crack dealer has accepted a prosecutor's deal to stay in jail
until her baby is born to protect the fetus from the ravages of her addiction.

The strange tale of Heather Asquith, who agreed in a courtroom in London,
Ont., this week to delay her sentencing for several months, is another
example of the divisive issue of unborn babies' rights.

Ms. Asquith, 34, pleaded guilty to drug charges but agreed to delay her
sentencing until March, guaranteeing she will stay behind bars for the
duration of her pregnancy.

"We don't want a crack baby," Crown attorney Bill Buchner told the judge,
arguing that Ms. Asquith must remain in jail to make sure "the baby isn't
subjected to more crack cocaine."

Ms. Asquith, who has 40 previous convictions, is due to give birth March
15. Under the deal, she will remain in the Elgin-Middlesex Detention Centre
until March 19, then be sentenced to a single day in jail.

Ms. Asquith's pregnancy and her long history of drug offences created an
ethical dilemma for Mr. Justice Ross Webster. If she were allowed to remain
on the street, as she had requested, there was the possibility her unborn
baby would be hurt by substance abuse. If she were jailed for a lengthy
period, she would be separated from her child after it was born.

"It was an unusual situation," said Peter Behr, a London lawyer who
represented Ms. Asquith. "If she hadn't been pregnant, this alternative
wouldn't have been offered."

Ms. Asquith, who also has a two-year-old child, was arrested in September
after setting up a drug deal with a London undercover police officer in a
sting operation. She was five months pregnant at the time. Her pregnancy
soon became a central issue in her case.

After pleading guilty, Ms. Asquith argued that the court should consider
her pregnancy and give her a conditional sentence, which would have allowed
her to remain free under supervision.

Mr. Buchner told the court Ms. Asquith's offence and long list of previous
convictions called for a jail term, but agreed that her pregnancy should be
taken into consideration.

Mr. Buchner suggested the delayed-sentencing deal as a practical
alternative that would protect Ms. Asquith's unborn baby, but ensure that
she and the baby could be together after she gave birth.

Legal sources said a typical sentence for someone with Ms. Asquith's record
and charges would range from nine to 12 months.

On its surface, Judge Webster's ruling to postpone the sentencing appears
to flout a Supreme Court of Canada decision handed down last year.

That case involved a pregnant Winnipeg woman who was forced into a detox
centre because she was addicted to sniffing solvents. Child-welfare
officials got a court order after arguing that her fetus had to be protected.

But the Supreme Court disagreed. In a ruling that pitted the rights of a
women against those of her fetus, the court found that a woman's right to
liberty took precedence over the rights of her unborn child.

Although both involve pregnant women, there are sharp distinctions between
that case and Ms. Asquith's. While the Winnipeg woman was held against her
will without being criminally charged, Ms. Asquith agreed to her
incarceration after pleading guilty to drug trafficking and breaching her
parole.

"The idea of locking up a woman to protect her fetus is something the
Supreme Court specifically rejected," said Hersh Wolch, a criminal lawyer
in Winnipeg. "But in the Winnipeg case, there was no criminal conviction.
It was a very different situation to this one."

While the case of Ms. Asquith is all about protecting her fetus, it appears
the judge has not overstepped his bounds in arriving at the decision to
delay her sentencing.

"If the sentence ought to be a custodial sentence, then postponing the
sentence is not improper," said Bernard Dickens, a medical law professor at
the University of Toronto. "Judges playing around with the rules is nothing
new."

Checked-by: Pat Dolan