Adrian Wyld / The Canadian Press FilesA view of the Supreme Court of Canada from Dec. 10, 2012.
OTTAWA – The Supreme Court will rule on Friday in the case of a woman accused of concealing her newborn baby’s body, a decision which some legal experts say could touch on the politically thorny issue of when a fetus becomes a human being under the law.
Although the case of Ivana Levkovic deals specifically with the law around concealing a child’s body, at least one expert says there’s room for the country’s top court to give a judicial opinion on when human life begins.
“Inevitably there is a legal connection to abortion generally, but that is not to suggest the Supreme Court may themselves make that connection,” said Eugene Meehan, a former executive legal officer of the Supreme Court of Canada who is now a partner at Supreme Advocacy LLP in Ottawa, a law firm specializing in Supreme Court matters.
Levkovic was charged with concealing the dead body of a child in 2006 after a building superintendent found the decomposed remains of a baby in her recently-vacated apartment in Mississauga, Ont.
Levkovic went to police and told them that she fell down at home, went into labour, then put the dead body of the baby girl in a plastic bag and left it on the balcony.
She was charged under section 243 of the Criminal Code, which makes it illegal to conceal a child’s body “whether the child died before, during or after birth.”
The trial judge in the case held that the term “child” in its before-birth application was unconstitutionally vague, and struck the word “before” from the section. Pathologists could not determine whether the baby died before, during or after birth, so Levkovic was acquitted.
The Ontario Court of Appeal, however, said the trial judge erred in his ruling. The court ruled section 243 was not void for vagueness, and ordered a new trial. That trial is on hold pending Friday’s ruling.
Meehan said the Supreme Court has the option of dealing with the case on narrow technical grounds, strictly limited to the wording of section 243. But they could also broaden their ruling.
“They could also go wide, and give a judicial opinion on when human life begins. And that would be in the context of is it or is it not a criminal offence to terminate the life of a child in utero,” he said.
Canada doesn’t have an abortion law on the books; the Supreme Court struck the last one down in 1988 in the landmark Morgentaler case.
The defence, which wants Levkovic’s acquittal recognized, argued at the hearing in October that the law is too vague and violates a woman’s privacy rights in relation to pregnancy. Their factum notes there’s no statutory definition of “child” applicable to section 243.
The Crown argued that the law is not too vague. In documents, they say the meaning of a “child” who died “before birth” is fully substantiated through legislative history, judicial interpretation, and otherwise as having a gestational age of at least seven months. The law’s purpose, they argued, is to facilitate the investigation of infant deaths.
“The state’s ability to investigate suspicious infant deaths is essential to the achievement of a goal directed at the protection of the most vulnerable of victims,” they said.
Intervening in the case, the Criminal Lawyers’ Association of Ontario argued the law criminalizes behaviour that shouldn’t be considered a crime. “The act of having a miscarriage is not illegal,” said lawyer Marie Henein.
The law about concealment dates back to 1893, a time when the legal definition of “child” would have been less contentious and strict anti-abortion laws were in place, experts said.
University of Ottawa Law School associate professor Carissima Mathen, a constitutional law expert, said it would take “mental gymnastics” to turn this case into a discussion about when a child becomes a human being.
“Given the fact that this is a very specific crime about concealment, and not about injuring or harming an unborn child, I wouldn’t expect them to wade into that particular debate,” Mathen said.
But she added that the law on concealment “before birth” can be understood as ancillary legislation to laws that criminalized abortion.
“The concealment applied to a child before birth makes the most sense as a companion crime to an anti-abortion law. When you don’t have an anti-abortion law on the books, it becomes a lot trickier. Why does the state have an interest in knowing?
“In that way, it’s hard to get away from the abortion issue even though if you just strictly look at the law, abortion is not on the table.”