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Supreme Court reserves judgment on humanity of unborn cases

By 
  • October 15, 2012

OTTAWA - The Supreme Court of Canada has reserved judgment in two cases that involve mothers who abandoned their babies because they believed they were born dead.

On Oct. 10, the court heard the case of Ivana Levkovic who left the corpse of her baby girl on her apartment balcony wrapped in blankets inside a bag. The next day, Canada's highest court heard the case of A.D.H., who gave birth to a baby boy in a toilet at a Wal-Mart in Saskatchewan. Thinking he was dead, she fled the store and left him behind. The baby was discovered and resuscitated.

Both women were acquitted by their respective trial judges. Levkovic told the court she had fallen down, precipitating labour and the baby was born dead. Because the body was so decomposed, the coroner could not tell whether the infant girl, who was near full term, died before birth, so the judge acquitted her.

A.D.H. claimed to be surprised to discover she was pregnant and shocked by the delivery, which took place during a 14-minute visit to the store. Her case hinges on whether one's subjective belief — i.e. that the baby was dead — should override an objective standard of what a reasonable person would do under the circumstances.

Both cases touch on the contentious issue of when a child becomes a human being, since the Criminal Code has sections that seem to contradict each other. MP Stephen Woodworth's Motion 312, recently defeated in the House of Commons, sought to address the definition in Section 223.1 of the code which says the unborn child does not become a human being until the process of birth is completed.

Levkovic was charged under section 243 of the Criminal Code which makes it illegal to conceal a dead child's body whether the "child died before, during or after birth," while A.D.H. was acquitted of child abandonment.

On Oct. 10, Chief Justice Beverley McLachlan wouldn't use the word "child" since the terminology is "under contention." At one point she referred to the unborn child as the "thing" or "object" expelled from the mother's body during the process of delivery.

Attorney Jill Copeland and Delmar Doucette argued the law is too vague and creates too great a "zone of risk" for women who may not know whether they might have violated it simply by having a miscarriage. They also argued the section violates the security of the person and the rights of women to make decisions concerning a failed pregnancy as well as violates her privacy rights by forcing her to disclose that pregnancy. They wanted Levkovic's acquittal recognized.

The Criminal Lawyers' Association of Ontario intervened in the case, arguing that section 243 was criminalizing behaviour that is not a crime.

"The act of having a miscarriage is not illegal," attorney Marie Henein told the court. The right of a woman to control her own body is constitutionally protected and sacrosanct, she said, noting societal norms see these rights as settled.

Many of the questions from the bench concerned issues of viability and how likely an unborn child would be able to live outside the womb.

Arguing for the Attorney General of Ontario, Jamie Klukach argued the section has an investigatory purpose.

"The state has an interest in seeing the child and investigating" the cause of death, Klukach said.

Societal values on proper respect to the dead also apply, she said, noting that proper burial and the duty of dignity to human remains have a long common law history. So does the concept of the sanctity of life and the preservation of life. The state must be notified about deaths, she said, and a body "cannot be concealed at the whim of an individual."

Section 243 compels a woman to disclose the fact of the birth, she said. The conduct it proscribes is the intentional concealment and disposal of a body because it could involve the destruction of evidence, akin to the obstruction of justice.

Intervening on behalf of the Attorney General of Canada, Robert Frater said the law was not too vague, nor did it create too wide a zone of risk.

"A woman has to ask herself, 'If I dispose of a dead body and someone finds it might someone conclude that a crime has taken place?' ” Frater said.

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