Sunday, 27 March 2011

INFANTICIDE: The Canadian argument that the infanticide law no longer serves its original intent

James Morton, March 21, 2011
James Morton is a Toronto lawyer (presently on circuit in Baker Lake, Nunavut) who teaches at Osgoode Hall Law School of York University.
He is a past president of the Ontario Bar Association. The views herein are solely his own (

L.B. killed two of her children by smothering them shortly after they were born. L.B. was 17 years old at the time she killed her first baby but was an adult at the time of the second killing.
In both cases the killings came to light only after L.B. confessed while she was a patient in a psychiatric facility -the two deaths had been thought accidental. In both cases, L.B. smothered the children shortly after birth and while she suffered from significant mental illness arising, at least in part, from the consequences of childbirth.
L.B. gave a detailed statement to the police admitting that she killed her children. She explained she was "really confused" and "fighting with her thoughts." L.B. insisted that she did not want to hurt her children, but wanted to help them.
L.B. was charged with two counts of first-degree murder. At her trial the judge found L.B.'s thinking suffered a "disturbance" as a result of giving birth. Nevertheless, the court found she did have the mental capacity to understand what she was doing and concluded that L.B. intended to kill her children.
In the end, the judge found that L.B. was guilty of infanticide and not guilty of murder. She was given a sentence of 18 months on top of time served in jail, and probation. The sentence was far less severe than it would have been for murder.
In Canada the killing of a human being is always called homicide. Homicide is divided into two categories -culpable and non-culpable. In almost all cases culpable homicide is murder (where the accused intended to kill or was reckless as to killing) or manslaughter (where the accused didn't intend to kill but did so where there was a clear risk of bodily harm).
In some very rare cases, as with L.B.'s case, there is a third form of culpable homicide -infanticide.
Infanticide entered the law in the United Kingdom (and to Canada) in the 1920s because juries refused to find mothers who killed their newborn children guilty of murder. The penalty for murder was hanging and juries, faced with a mother who had obviously killed her child, refused to convict for murder and acquitted or found against the mother for lesser offences such as concealing a pregnancy.
Infanticide was not brought into law to show clemency to the weakness of mothers but rather as a way to ensure that mothers would be convicted of something in spite of the inclination of juries to acquit.
This last point is significant. The Crown appealed the trial decision in L.B.'s case and said that she should have been convicted of murder, saying that infanticide is just a special case of murder. The Crown said infanticide "rests on discredited medical opinions and assumptions about the plight of young unwed mothers that do not accord with present reality, and constitutes an unacceptable devaluation of the worth of a newborn child."
In fact, far from devaluing the worth of a newborn child, the offence of infanticide was created to ensure there would be some punishment for the killing of a baby.
The rarity of facts justifying charges of infanticide led to real doubt as to what relationship the offence had to other offences such as murder -is infanticide merely a specific example of murder, as the Crown argued in L.B.'s case, or is infanticide a separate offence which offered a defence to a charge of murder? This was the main issue before the Court of Appeal for Ontario.
If the mother can raise infanticide as a partial defence to murder she is liable to a maximum penalty of five years. However, if infanticide is merely a special case of murder, when a mother is convicted of murder she must be sentenced to life imprisonment. The distinction is far from trivial.
The Court of Appeal made its decision largely on statutory interpretation. The Criminal Code provides "culpable homicide is murder or manslaughter or infanticide." That suggests that murder and infanticide are mutually exclusive. Certainly the dramatically different penalties for the offences are consistent with the offences being mutually exclusive -it makes little sense for an accused to be facing either a maximum penalty of five years or a minimum penalty of life imprisonment for the same act depending only on what particular form of charge the Crown employs.
Based on these considerations the Court of Appeal held where infanticide is made out, a conviction for murder is not available and the maximum sentence is five years in jail. Put otherwise, infanticide is a defence to a charge of murder.
The Court of Appeal's decision, while legally sound, leads to an odd policy result. Infanticide was intended to ensure stiffer punishment for the killing of newborn children. The effect of the Court of Appeal's decision that infanticide is a defence is to lessen the penalty that would otherwise follow for murder. The effect has been to make the law on infanticide the reverse of what Parliament intended; rather than increase, it decreases, punishment.
A "law and order" initiative from the 1920s has an unexpected consequence today.

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