Was it second degree murder or infanticide?

A young Alberta woman hung her head in an Edmonton courtroom on June 23, 2009 as a judge denied her lawyer's request to set aside a jury verdict that found her guilty of second-degree murder in the death of her newborn baby in 2005. When Effert was 19, she secretly gave birth in her parents' basement and then strangled the baby boy with her underwear and then tossed his body into a neighbour's yard in order to conceal it.

Her defence lawyer, Peter Royal asked for a mistrial, arguing the case was clearly not murder, but infanticide, a lesser crime that carries a maximum sentence of five years. Mistrials are usually sought before a verdict is reached.

Justice Joanne Veit said the issue is one better left for the court of appeal to decide. He sentenced her to the minimum sentence of life in prison with no parole eligibility for 10 years.

The question that the court of appeal will have to deal with is, “Was it murder or was it infanticide?”

I will explain the difference.

In Canada, murder in the first degree, is one that is planned ahead of time. In this particular case, there was no evidence that Effert had planned with some deliberation to kill her child prior to its birth. For this reason, she was charged with second degree murder since planning the murder in advance was not a factor in her case for the court to have to consider.

The reason is because the word, ‘deliberate’ as used as part of the definition of the crime of murder in the first degree means ‘considered’ and not ‘impulsive’. The existence of some form of temporary mental disorder is not incompatible with the commission of a planned and deliberate murder however there generally has to be evidence that the crime was planned in advance with someone with a sound mind in order for there to be a conviction of first degree murder.

Ms. Effert may have decided to murder her baby right after it was born but that really doesn’t mean that she planned in advance to murder her baby because prior to its birth, she didn’t even know if it was going to a still-born baby.

To obtain a conviction of second degree death, the Crown had to demonstrate that the accused intended to cause bodily harm that she knew was ultimately so dangerous and serious that it was likely to result in the death of her baby. But that intent did not need to persist throughout the entire act of strangulation. The jury could infer that mother, by seizing he baby by the neck, intended to cause him bodily harm that she knew that was likely to cause her baby’s death.

It was not necessary that the requisite intent continue throughout the entire time required to cause the death of the victim. If death results from the wrongful act that then it must be established that the requisite intent coincided at some point with the wrongful act of murder.

The wrongful or unlawful act committed by Ms. Effert on which the verdict of second degree murder is based would not have equally have provided a basis for a verdict of infanticide. This does necessarily mean that the court of appeal shouldn’t re-consider trial judge’s verdict, and replace that verdict of second degree murder with a verdict of infanticide.

If the prosecution had been able to positively prove that Ms. Effert did not suffer any disturbance of the mind as a result of childbirth, the Crown might have been able to say that the crime which was proved was different from, and more serious than the crime of infanticide.

Infanticide constitutes a homicide that is a lesser offence and is an included offence in the offence of murder. The specificity of the offence resides in the fact that a link must be established between the mental disturbance and the birth of the child or lactation: it is not a requirement that the act itself is caused by the mental disturbance, it is sufficient that the mother’s mind is then disturbed. It is a question of reduced responsibility on the part of a woman who causes the death of her new born child while she is in the grip of a mental disturbance caused by the birth. There is an implicit assumption that if a woman with a disturbed mind kills her child, the disturbance is what led to the killing.

There can be no doubt that a woman who gives birth to a child that she doesn’t want or expects, is suffering some degree of disturbance in her mind. But the question is, does this justify murdering her new-born child?

The mental disturbance must be causative, in the sense that it must be the mental disturbance which prevents the formation of the required specific intention, the mental disturbance might not be related to the birth but it must be causally related to the homicide, which, distinguishes it from the offence of infanticide.

Section 663 of Canada’s Criminal Code complicates the requirements for lack of recovery from giving birth and mental disturbance because it provides that even if the Crown fails to provide that a woman had not fully recovered from the effects of giving birth or from lactation and that her mind was disturbed as a result, the accused can still be convicted of infanticide. Hence, it could be argued that infanticide can describe any killing of a newly-born child by its mother, not just those where the mother has a mental disturbance.

In that section dealing with the crime of infanticide, it is not necessary, in order to get the benefit of infanticide conviction and/or sentencing to establish postpartum depression. The test imposed by Parliament is quite specific: At the time of the commission of the offence, a mother is entitled to the defence of infanticide if, at the time when she killed her baby, she was not fully recovered from the effects of giving birth to the child and by reason thereof, her mind was then disturbed. There is no requirement for the mother to prove postpartum depression. Indeed, as in other crimes, there is no requirement that the mother prove anything. In an infanticide case, the Crown would have to prove beyond a reasonable doubt that the mother was fully recovered from the effects of giving birth and that her mind was not disturbed by the effects of giving birth.

Postpartum psychosis is a very serious condition that usually begins a couple of days or weeks after childbirth. A woman experiencing this form of depression has become severely depressed and may experience acute anxiety, restlessness, hallucinations, paranoia, and hysteria and have thoughts related to harming herself or the baby.

Ms. Effert wasn’t suffering from postpartum psychosis at the time she murdered her baby because she murdered it immediately after it was born. If she had murdered her baby a day or so later when postpartum psychosis had set in, then she may very well have been convicted of infanticide instead of second degree murder.

The Crown essentially can never prove a negative to a near certainty. In Ms. Effert’s case, the Crown must have led evidence that Ms. Effert did not suffer from the major mental disorder of postpartum depression at the time that she strangled her baby and then tossed his body into a neighbour's yard in order to conceal it.

Her baby had a right to life and she took her baby’s life from him and then threw him away like he was just garbage. I think the ten-year sentence was appropriate in this particular case.