Sunday, 6 March 2011

INFANTICIDE: Ontario Appeals Court upholds law

Mar 2 2011
Tracey Tyler Legal Affairs Reporter

The Ontario Court of Appeal has ruled that women accused of deliberately killing their newborn children can defend themselves by arguing the crime was infanticide, caused by a mental disturbance such as postpartum depression.
In a 3-0 decision Wednesday, the court dismissed a Crown appeal in the case of a Guelph woman known as L.B., who admitted to smothering her two infant sons but avoided a murder conviction and life sentence after arguing the crime was infanticide.
Although infanticide is punishable by up to five years in prison, L.B. was given credit for pre-trial custody and sentenced to one year in jail.
In appealing her convictions, Ontario’s attorney general, for all practical purposes, sought to abolish infanticide as a partial defence to a murder charge.
The Crown’s motivations were unclear, but appeared to flow from concerns the Criminal Code’s infanticide provisions are based on myths that women can’t control their hormones, and are allowing morally culpable killers to get away with murder.
It defines infanticide as a woman willfully causing the death of a newborn child in circumstances where she hasn’t fully recovered from the effects of childbirth or lactation and her mind is disturbed.
Wednesday’s decision is the first critical analysis of Canada’s infanticide provisions by an appeal court.
Like earlier legislation in Britain, Canada’s infanticide law, enacted in 1948, was a compromised by parliamentarians who knew that juries were often sympathetic to women on trial for the deaths of their children and unwilling to convict them of murder, particularly if it was punishable by execution, said Justice David Doherty, who wrote today’s judgment.
“In the few cases where juries did convict, judges balked at engaging in what was described as a ‘black cap farce,’ requiring judges to pronounce a death penalty knowing that the penalty was a monstrous overreaction to the crime and that it would never be carried out,” he said.
“This ‘solemn mockery’ was said to do nothing other than terrorize the mother on whom it was pronounced as she was probably the only person in the courtroom who did not know that the penalty would never be carried out,” Doherty wrote.
In Canada, 86 women have been charged with infanticide since 1977.
L.B. admitted while undergoing treatment at the Homewood Mental Health Centre that she had suffocated one son in 1998 and the other child in 2002, telling police later that she was “really confused” and “fighting with her thoughts” and that she was trying to help them.
She had grown up in an abusive home, had attempted suicide and was 17 when her first son died.
She was charged with two counts of first-degree murder.
While infanticide is available as a partial defence to murder in other countries, including England, the Crown argued the infanticide provisions in Canada’s Criminal Code operate only as an offence that women can be charged with.
Writing on behalf of Justices Michael Moldaver and Eleanore Cronk, Doherty said Parliament clearly intended to make infanticide a partial defence to murder when it enacted the legislation in 1948 and the proof was in the language.
It said homicides that would normally constitute murder or manslaughter would not be “deemed” as such when a woman’s actions fit the infanticide criteria.
Doherty rejected the Crown’s contention that Parliament removed infanticide as a defence when it rewrote the legislation in 1954, taking out the “deeming provision.”
“It would take strong evidence to satisfy me that parliament intended to abandon the very purpose behind the infanticide legislation less than six years after enacting that legislation,” he said, “and that it intended to give to the prosecutorial authorities, through their charging discretion, the exclusive power to determine whether a mother who killed her newborn child could be convicted of infanticide and not murder.”

No comments:

Post a Comment