This article inspired the poem “The C…. On The Balcony!”
A Supreme Court of Canada comment by ARPA’s Legal Counsel, André Schutten
On October 10, 2012, the Supreme Court of Canada heard the case of Ivana Levkovic v. Her Majesty the Queen. This case potentially has broad implications for which human lives are protected by law and how they are protected. I had the privilege of attending in person to observe the oral arguments. The case involves questions of how to deal with the body of a baby that has died after or before birth and thus immediately raises other questions and issues. These questions and issues are all the more significant in light of the recent decision by Parliament refusing to investigate our current definition of human being (click here for more on that). So, what was this case all about?
Ms. Levkovic was charged after a building superintendent found a badly decomposed human baby in her apartment. Ms. Levkovic later told police that she had fallen, went into labour, and then put the dead body of the baby girl in a plastic bag and left it on the balcony. A pathologist could not determine whether the baby had died before the labour or afterward.
Ms. Levkovic was charged under Section 243 of the Criminal Code, which outlaws the concealing of the body of a dead child regardless of whether the “child died before, during or after birth.” But the word “child” is not defined in the Criminal Code, and the original trial judge could not come up with a clear definition for the term in cases where a death occurs before birth. Does the term child then include a human fetus? Or only a late-term, more fully developed fetus? Does it include a human embryo? Does it matter how old the fetus is before birth or how likely it will survive after birth?
The trial judge decided that the words “child died … before birth” were “unconstitutionally vague.” In his ruling, he struck the word “before” from section 243 and acquitted Ms. Levkovic because the Crown could not establish the time of death as being during or after birth. However, the Court of Appeal held that s. 243 is not unconstitutionally vague. It allowed the appeal, set aside the acquittal and ordered a new trial.
At issue before the Supreme Court is whether the words “child died before . . . birth” are vague and therefore whether s. 243 breaches s. 7 of the Canadian Charter of Rights and Freedoms. Section 7 is the right to not be deprived of liberty except in accordance with the principles of fundamental justice (of which one principle is that a vague law cannot be a just law).
At the Supreme Court, the appellants (the lawyers for Ms. Levkovic) opened by stating that indeed Parliament does have the authority to legislate on the preborn. This is true and consistent with the infamous Morgentaler case of 1988 and it was wise for the appellants to admit this right away. However, they quickly focused in on the issue of vagueness, and argued that certain scenarios were conceivable in which this section surely shouldn’t apply, and yet, could apply on a simple reading of the text. For example, a miscarriage in which an embryo is “delivered” could be included here. However, the intention or purpose of the section would preclude these types of deliveries; the privacy interest of the mother trumps the State’s interest in recording or investigating this type of dead body. In reality, many miscarriages result in private burials in backyards or even in being flushed down toilets. So what’s the standard for section 243? The Crown prosecutor at trial argued that the point where this section begins to apply is at 20 weeks gestation. The Court of Appeal suggested the test was not a gestational question but a viability question: whether the child “was likely to have been born alive”. However, that court sometimes referred to an older standard of “might have been born alive” which are two very different tests.
Justice Abella at the Supreme Court then suggested that perhaps the section is not about the age of the child but rather about the birth itself: just as section 243 implies that the death of a child after birth would necessarily be immediately after birth (weeks or months later would activate different sections on infanticide or homicide charges), should we not, she argued, read the clause ‘before birth’ as meaning immediately before birth? The appellants rejected this approach as well because, depending on when the birth happens, an accused may face the same issue and problem as a gestational approach.
Another argument made against the section (this time by the Criminal Lawyers Association as interveners) was that section 243 does not give fair notice to those women who might fall foul of the law. How will a woman know whether or not she is incurring criminal liability when she unexpectedly gives birth and delivers a dead child? How does she know in that moment whether or not she is “in the zone” of being able to keep the issue private, or whether she must report to a doctor, a hospital or the police? What about women who don’t know they are pregnant. In the shock of the moment, will they know what to do with the body?
In response, the government argued that we have to understand section 243’s purpose. Why is it in the Criminal Code? The purpose is investigative. This section exists to send the message that to conceal a dead body is wrong because the State has an interest in investigating other crimes and the dead body in necessary for the investigation of those other crimes (section 237, 238, 223(2), 242 – infanticide, killing unborn child in act of birth, killing child, neglecting to obtain assistance in child-birth).
The Crown also argued that this section underlines the importance of the treatment of the dead, a societal value. Thus, “the inherently unnatural response of hiding the body of the child itself puts a woman on notice” and gives her fair warning that what she is doing could incur criminal liability. The Attorney General of Canada (an intervener on the respondent side) argued that the question the person with the dead baby should ask is, “If I dispose of this body, and someone finds it, will they be suspicious of criminal activity?” Although this test too has limitations, I think it is a fair test to use, the so-called objective test of the reasonable person, a test used in many other criminal trials.
It was most interesting to see the seven judges of the Court and the lawyers struggle with the issue of what to do with the body of a baby who died before birth when our law and too many in our society don’t give any regard for, and certainly no protection to, the preborn child until the moment of complete birth. In their body language, in their wrestling with phrases and words, it was abundantly obvious that, with few exceptions, they were uncomfortable with our legal vacuum. Why should we respect a dead baby that dies before birth if there is no protection for it when it is living before birth? It would certainly have been much easier for the judges and lawyers alike if there existed a law that protected (at a minimum) the preborn child at 20 weeks gestation and further.
Thus, a gestational limit on late term abortions would help bridge a gap here because if there is no protection for a fetus from 20 weeks to 40 weeks gestation anyway, why bother investigating if the fetus dies and is delivered? That seems somewhat contradictory. But we, as a society, recognize that there is something seriously significant about a still-birth: “the complete expulsion or extraction from the mother after at least 20 weeks pregnancy or after attaining a weight of at least 500 grams of a [child where] there is no breathing, beating of the heart…” And a majority of Canadians recognize as immoral the killing of a late-term baby. At any rate, if a gestational law were introduced, it would be beneficial to amend section 243 of the Criminal Code at the same time.
Interestingly, Chief Justice McLachlin refused to call the unborn child a ‘child’, instead using the word ‘being’, stating that the use of the term ‘child’ was “contentious”. I’m not sure if the Chief Justice meant that it was contentious in society (whether we prefer to call the unborn child a fetus, a baby, a human, a blob of tissue, etc.) or whether she meant the term was contentious in this particular case, as there was some indication that the term needed to be defined. However, the fact is that the term “child” is used throughout the Criminal Code in reference to the unborn; it’s a legal reality and I think the refusal to use the term demonstrates that political correctness pervades even our highest court.
As to the question of the merits of the arguments, I see equally valid arguments on both sides – there is vagueness in this section and yet the State has a legitimate interest in investigating those fetal deaths that occur later in the pregnancy. However, I’m not sure a more precise definition of child would help. Perhaps doctors should be telling pregnant women that if their child unexpectedly is born after 18 weeks (for example) that they ought to report it to a doctor immediately and take the child to a hospital, whether or not it is alive. Of course, for those women who do not see a doctor or do not know they are pregnant, this does little to solve the problem of fair notice.
Are there broader ramifications for the pro-life movement? Possibly. This case again highlights the need for respect for all of life and the disconnect between our lack of protection for the preborn child and the other laws in our Criminal Code. Certainly if the Court decides to restrictively define “child”, it could undermine efforts to extend protection beyond the 20 week mark of fetal development.
The Supreme Court will most likely avoid the thornier issues of defining the term “child”, or at what stage of development a dead baby should attract criminal liability. Instead, they will focus on the constitutional issue of vagueness only and determine whether or not the section is too vague to be just. Although I felt strongly that the appellants did a much better job of presenting their case, I’m guessing that the section will be left as is. And I’m okay with that. I am firmly of the belief that Parliament should be defining terms in the law, not judges. And just because our Parliament fails to step up to the plate, this is insufficient justification for the judges to have to do that work for them.
All of this is all the more interesting as the Supreme Court will hear a case today (October 11) of a young woman accused of unlawfully abandoning her newborn after giving birth in a Walmart bathroom. In May 2007, she was feeling unwell and went to the bathroom in the store. She gave birth to a baby and, claiming she thought it was dead, left the store shortly afterwards leaving the baby in the toilet where a store manager rescued it. This is what happens when there are no laws protecting preborn human beings. We slide towards carelessness for newly born human beings. The issue of protection for all of life does not want to go away – let’s keep the conversation going!