What's coming up at the SCC? October crim law hearings on the legalities of birth and maternal responsibility

These struck me as a connected set of cases, although you may well disagree.

On October 10, a case from Ontario,  R. v. Levkovic 2010 ONCA 830 (Canlii). Watt J.A.’s first three paragraphs are a concise explanation of the core issue:

 [1]               Since July 1, 1893, concealing the dead body of a child has been an indictable offence in Canada.  The definition of the offence has always declared it to be immaterial whether the child died before, during or after birth.

[2]               On September 18, 2008, a judge of the Superior Court of Justice decided that the words “died before … birth” in s. 243 of the Criminal Code are unconstitutionally vague.  In the result, he severed the preposition “before” from the section, leaving it to read in its material part “whether the child died during or after birth”.

[3]               The prosecutor acknowledged that he could not establish either the cause or the time of death, thus he offered no evidence in support of the allegation contained in the indictment.  The trial judge acquitted Ms. Levkovic.

Those who have been following the recent debate in Parliament  over motion 312 (ultimately the motion did not pass) calling for a special committee to study the Criminal Code definition of “human being”, may see some resonances in Levkovic. Section 223 contains the definition (“A child becomes a human being within the meaning of this act when it has completely proceeded, in a living state, from the body of its mother whether or not (a) it has breathed, (b) it has an independent circulation, or (c) the navel string is severed.).  This definition is cited in Levkovic (see para 112).  But the conclusion is:

[115]      For the purposes of establishing liability for an offence under s. 243 in cases involving death before birth or those in which the time of death in relation to birth is unclear, a foetus becomes a child when it (the foetus) has reached a stage in its development when, but for some external event or other circumstances, it would likely have been born alive.

[121]      The portion of s. 243 upon which the trial judge focused here cannot be uprooted from its context and subjected to microscopic scrutiny. This offence requires proof of knowledge of the character of the subject-matter disposed of, the dead body of a child, together with a purpose, or ulterior intention, of concealment of the birth. It is one of several offences, fatal offences against the person, that enjoin conduct that causes or contributes to the death of another.  A provision that renders investigation of death less difficult forms an integral part of this statutory scheme.

The Criminal Lawyers Association of Ontario is intervening, along with the AG Canada.

The next day brings R. v. A.D.H. 2011 SKCA 6 (CanLii) by leave from Saskatchewan. The facts involve a precipitous birth in a Walmart washroom.

[17]  The issues in this case are the mens rea required under s. 218 of the Code and whether A.D.H. had a defence of mistake of fact.  Section 218 reads as follows:

Abandoning child

218. Every one who unlawfully abandons or exposes a child who is under the age of ten years, so that its life is or is likely to be endangered or its health is or is likely to be permanently injured,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Finally, on October 16, Rochon c. R., 2011 QCCA 2012 (CanLII), an as of right appeal from the QCCA (no, Wagner was not on the bench) that may strike a certain kind of fear into parents everywhere.  Also reminded me of Regina Austin, 14 Yale J.L. & Feminism 273 (2002)  Step on a Crack, Break Your Mother’s Back: Poor Moms, Myths of Authority, and Drug-Related Evictions from Public Housing – with clear contextual differences. But Austin’s discussion of “maternal authority” is interesting in this context.

The decision is in French, so here’s the summary available on the SCC website (“Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch) for information purposes only.”):

…. Whether complicity by omission under s. 21(1)(b) of Criminal Code requires existence of legal duty to act and whether failure to act by person who omits to exercise authority over another person or property can constitute actus reus of that offence.

Ms. Rochon entrusted her property to her son in her absence. When she returned to her property in the summer, she found that marijuana was being cultivated on her land. She asked her son twice to remove the crop, but she did not want to report him to the authorities. The trier of fact concluded from the evidence that Ms. Rochon had known of the situation and had therefore been obliged to call the police and report what her son was doing.

via Supreme Court of Canada – SCC Case Information – Summary.

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