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Is infanticide a legitimate defence?
September 23, 2010
Tracey Tyler
Their numbers are few and their tragic stories vary, but women who deliberately kill their newborn children have long had something in
common.
The possibility of being treated more leniently than other killers.
But that could change with an important case starting Thursday in Toronto that could restrict the use of an infanticide provision in the
Criminal Code.
A lawyer for the province’s attorney general will ask the Ontario Court of Appeal to rule that a mother who intentionally kills her child while
mentally disturbed or suffering postpartum depression can’t defend herself by arguing the crime was infanticide, punishable by up to five
years in prison.
Instead, if a woman is anything less than certifiably psychotic at the time of the killing, she would face the prospect of life in prison for
murder.
If the Crown succeeds, it would set Canada apart from other countries, including England, where infanticide operates as a partial defence to
a murder charge.
“I think there is broad international recognition that a killing of this kind is less culpable than murder,” said Isabel Grant, a law professor at
the University of British Columbia who specializes in criminal and mental health law.
“The vast majority of women would risk their lives to save their baby,” she said, “and in these cases something goes terribly wrong.”
The case involves a young woman from Guelph, Ont., who can only be identified as L.B. and admitted to killing her two infant sons in 1998
and 2002 by covering them with blankets and a plastic sheet.
Charged with first degree murder, she was convicted of two counts of infanticide in 2008 after a trial judge accepted psychiatric evidence
that L.B., who had grown up in an abusive home and had attempted suicide, was suffering from a personality disorder and her actions were
likely brought on by the biological and psychological effects of giving birth.
Now 29, she was 17 when her first son died.
The trial judge ordered her to immediately alert child welfare authorities if she becomes pregnant in the next 20 years.
After spending nearly three years in pre-trial custody, L.B. was given another year in jail.
Material filed with the court in conjunction with the Crown’s appeal of her convictions traces the history of infanticide law to 17th century
Stuart England.
Like its British forerunner, Canada’s infanticide legislation was developed as a compromise by Parliamentarians who recognized that juries
were often sympathetic to women on trial for causing the deaths of their children and unwilling to convict them of murder, particularly at a
time when the crime was punishable by death.
Since 1977, 86 women in Canada have been charged with infanticide, according to Statistics Canada, but none since 2006.
Grant said charging practices have changed in recent years, with police more likely to lay first degree murder charges in these cases and
prosecutors less willing to accept pleas to infanticide.
Canada’s Law Reform Commission recommended abolishing the infanticide provisions in 1984. But in 2006, the Law Reform Commission of
the United Kingdom strongly recommended retaining an infanticide law, calling it a “practicable legal solution” to a social problem.
Crown counsel Jennifer Woollcombe argues that when the legislation was enacted in Canada in 1948, there was greater social stigma
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http://www.thestar.com/printarticle/865023surrounding unwed motherhood.
In documents filed with the court, she contends that making an infanticide defence available in cases of intentional killings is bad policy
because it “cheapens” the life of a child and is based on medically unsupported evidence that giving birth can lead to mental disturbances.
In their written material, Tim Breen and James Fleming, lawyers for L.B., say the policy arguments for and against an infanticide defence
would make fascinating reading for a Parliamentary committee, but the only issue in the appeal is whether the Criminal Code provisions
were meant to operate as a defence to what would otherwise be murder.
Woollcombe admits that infanticide was a defence to murder when the legislation was introduced by the Liberal government of Prime
Minister Mackenzie King in 1948, but contends it was removed as a defence when the Criminal Code was rewritten in 1954.
Breen and Fleming say the rewrite was merely an attempt to simplify the language and did nothing as drastic as removing a defence to
murder.
Much of the appeal, which is scheduled to be argued Thursday and Friday, is expected to involve a trip back through the legislative history.
But the three-judge panel is also likely to hear some impassioned arguments in defence of infanticide as a defence. Intervening in the case
is the Women’s Legal Education and Action Fund (LEAF), which argues that the social stigma of pregnancy before marriage continues to be
devastating for many women and that abortion, for religious or cultural reasons, is often not an option.
As a result, social, economic, cultural, religious and psychological factors work together, even today, to create a disturbed state of mind for
many women after childbirth, LEAF lawyers Marie Henein, Joanna Birenbaum and Matthew Gourlay say in their written argument.
Those who commit infanticide, particularly within 24 hours of giving birth, are likely to be unmarried, under 25, socially isolated and have
often hidden their pregnancy from families, friends and even themselves.
They often give birth alone, or in a public washroom, LEAF says.
“They often have no history of mental illness and it is not uncommon for them to be in a state of panic.”
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