Friday, 3 October 2014

Concealing a dead body                         

When I was practicing law, I represented clients in their appeals and won most of them. This article deals with a case heard in a court of appeal in which it deals with an important issue in law—the correct interpretation of legislation.

In Canada, and no doubt everywhere else, concealing a dead body is a criminal offence. However, suppose the dead body is that of a baby that was aborted? This is what this article is about.

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

On April 5, 2006, an apartment building superintendent in Mississauga, Ontario was cleaning a recently vacated apartment unit. He noticed an abandoned bag on the balcony. At first, he thought that the bag contained wet rags that he could simply toss down the garbage chute. He opened it and looked. Wrapped in towels was the lifeless body of a baby. The superintendent called the police. The body was that of a female child at or near a full-term gestation. (almost born) The pathologist could not determine the cause of death or whether the child had died before, during or after birth.

On April 9, 2006, after extensive media coverage of the superintendent's discovery, the mother of the baby, Miss Levkovic went to a local police station. There, in a highly emotional state, she acknowledged that the child was hers. In a later police interview, she said that she had fallen while alone in the apartment. Then baby was born there. Realizing that it was dead, she put the baby in the bag and left the bag on the balcony. Incidentally, she aborted her baby on her own.                                        

She was charged and later she was arraigned in court and pleaded not guilty to a count that alleged that she: within a two hundred and forty eight day period, ending on or about the 5th day of April, 2006 at the City of Mississauga, unlawfully did dispose of the dead body of a child with intent to conceal the fact that she had been delivered of it by concealing it on the property of [address omitted], Mississauga, contrary to section 243 of the Criminal Code of Canada.”

The prosecutor undertook not to pursue any suggestion that the deceased child had been born alive. That was an extremely important decision for two reasons. First, the prosecutor couldn’t prove that the baby was born alive since the mother of the baby was the only person in the apartment.  Second, she would still be guilty of concealing the body of her baby that died before it emerged from her body because the law states;  

243. Every one who in any manner disposes of the dead body of a child, with intent to conceal the fact that its mother has been delivered of it, (the baby emerged from the mother’s body) whether the child died before, during or after birth, is guilty of an indictable offence.

She claimed that her baby was dead when it was born but it is still against the law for her to conceal the death of her baby as per section 243 of the Criminal Code of Canada.

Immediately after her arraignment and plea of “not guilty”, her defence lawyer submitted to the court a constitutional challenge to section 243 of the Criminal Code.

The constitutional challenge proceeded under section 7 and section 15  of the Canadian Charter of Rights and Freedoms which state;

Section 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

What this means is that no one in Canada can be imprisoned without justification. So if in fact, section 243 was ruled invalid, then she would be declared not guilty and therefore she could not be imprisoned for concealing her dead baby.

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

15. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Her lawyer sought a declaration from the trial judge of the invalidity of the charge and the dismissal of the indictment against his client because it failed to allege an offence known to law.

The trial Judge rejected her lawyer’s challenge under section 15 of the Constitution. However, he concluded that her lawyer’s interest in section 7  was his concern by the prospect of imprisonment on conviction, which in her lawyer’s opinion, was breached because of the vagueness of the phrase “child died before birth” in the section. In the result, the trial judge severed the word “before" from section 243.

The Attorney General of Ontario contended that the trial judge erred in concluding that the words “child died before birth” was unconstitutionally vague and in granting the remedy of severance for the infringement. The Attorney General then sought a determination of the constitutionality of that section and for an order for a new trial. The matter then ended up before three judges in the Ontario Court of Appeal.                                                  

At the outset of the hearing of the appeal, the parties skirmished about the extent of the prosecution’s reliance on reports of several prosecutions at the Old Bailey (Central Criminal Court) in London for infant homicide and concealment of birth. Among the reported cases were many involving prosecutions for infant homicide and for concealment of birth.

The prosecution also complained about the adequacy of the factual record in the Superior Court and about the judge's decision to let the defence’s challenge proceed in the absence of any evidence, agreed statement of facts or applicable admissions. As far as the prosecution was concerned, the issues were related and required a determination by the trial judge before the constitutional integrity of section 243 could be approached.

The prosecution pointed out that the Old Bailey cases negate any link between the concealment offence and the former crime of abortion and thus it rebuts any suggestion that the abortion cases can negate the content of the concealment offence or that the concealment offence was enacted to buttress the crime of abortion. Further, the authorities (previous court decisions) demonstrated that the concealment offence was not enacted to punish women for having sex outside the bonds of marriage or for that matter, aborting their own babies. According to the prosecution, these authorities reveal that juries were eager to acquit young women of both child homicide and concealment of birth on virtually any pretext. Accidental death and lack of proven ‘disposal’, ‘concealment’ or birth were frequently successful defences in which the prosecution maintained were unwarranted.

Further, the authorities made it clear that investigations of and prosecutions for the concealment crime invariably include case-specific medical evidence and at or near full-term children.  In other words, it is an offence to conceal a dead baby when it was dead before it was born.          

It is well-settled in past decisions that, as a general rule, a trial judge is entitled to reserve judgment on any application made at the outset of trial proceedings until the end of the case. In other words, the judge may decline to rule on the application until all the evidence has been heard. However, the decision whether to rule on the application at the outset, or to await the introduction and conclusion of the evidence, rests within the discretion of the trial judge.

Sometimes it will be more reasonable for trial judges to decide constitutional questions before proceeding to trial on the evidence relied upon in support of the allegations. Within this, exception to the general rule may be an apparently meritorious Charter challenge of the law under which an accused is charged that does not depend on facts to be elicited during the trial.

While the limits of judicial notice outside the realm of adjudicative facts are inevitably somewhat elastic, the application of the doctrine, which dispenses with the need for formal proof of facts that are clearly uncontroversial or beyond reasonable dispute, and therefore is not necessarily wrong.

The prosecution advanced a tepid submission that the trial judge erred in embarking on the constitutional challenge to section 243  without a satisfactory evidentiary foundation for the claim. The Court of Appeal did not give effect to this submission for several reasons.

First, the authorities that insist upon an adequate factual foundation to ground a constitutional challenge recognize equally that the general rule is not inflexible or intolerant of exceptions in individual cases. To some extent, the nature of the challenge advanced, the interest at stake and the likelihood or improbability that the evidence to be adduced at trial would assist the resolution of the issue are of importance in determining whether the immediate challenge will be permitted or determined before the evidence is presented to the trial judge.  

Second, counsel at trial agreed on the procedure followed. To be more specific, the prosecutor did not ask the trial judge to reserve his decision on the constitutional challenge until the conclusion of the evidence adduced at trial. Nor did counsel for the defendant at trial suggest that evidence should have been heard or an agreed statement of facts be filed to provide a factual foundation or context for the challenge. That being what it was, the issue becomes academic.

Third, the challenge here was directed principally at the language of the offence-creating provisions. The liberty interest implicated was the prospect of imprisonment on conviction. The flaw alleged by the defendant’s lawyer was that the prohibition was overbroad and void for vagueness, not as it applied to the defendant, but in its general operation.

In any case as it turned out; when the prosecutor summarized his evidence after the trial judge's ruling, what could have been established may not have advanced the inquiry into the constitutionality of section 243 significantly in any case.

The trial judge described the actus reus (criminal act) of the offence of section 243 as disposal of the remains of a child after birth or delivery. He concluded that the terms ‘birth’ and ‘delivered’, as used in the section, did not include compelled childbirth at any stage of gestation by an induced abortion. Concealment of her pregnancy was not part of the actus reus.

The trial judge then examined the mens rea (criminal intent) of the offence —the intent to conceal the fact of a birth. He concluded that the mens rea did not include the intent to conceal the defendant’s pregnancy.

For the trial judge, the critical issue was whether the term ‘child’, as it applied to the period before birth, provided an intelligible standard in that it gave fair notice to ordinary persons of the scope of risk of criminal liability and further, it avoided the potential for arbitrary enforcement.

The trial judge was also concerned about the absence of expert evidence about fetal viability, medical consensus about the meaning of live birth and of the ability of forensic pathologists to determine the cause of infant deaths. These were not subjects about which the trial judge considered that he alone should take judicial notice.

The trial judge considered the ‘chance of life’ standard proposed by the prosecutor. He noted that the degree of probability involved in the standard was unclear and could be determined in any of several ways. The absence of any coherent, unambiguous meaning for ‘child before birth’ rendered the provision void for vagueness according to the trial judge.

The conclusion of the trial judge seems rooted in three paragraphs of his lengthy reasons. They were;

“Although flexibility of interpretation and application of statutory terminology is not necessarily synonymous with vagueness, and recognizing the critical role of the judiciary in interpreting legislators' intent, I am unable to determine from the record in this case, the respondent's submissions, or review of the history of section 243 and its predecessor enactments, a coherent, unambiguous meaning of ‘child’ in the context of death before birth. In these circumstances, in my view, it is for Parliament, not the courts, to decide the appropriate definitional interpretation.

“Albeit in a different context, the words of Justice Wilson in the Morgentaler (famous abortionist) appeal are apposite here which is a matter best left to ‘the informed judgment of the legislature which is in a position to receive guidance on the subject from all the relevant disciplines’. A legislature could of course prohibit the disposition of product of any still or life-birth with the concealment intent, or define ‘the standard for prohibited conduct in terms of gestational age" using a conclusive or rebuttable presumption respecting the fetus' capacity for live-birth. Or, as in section 223(1), a definitional attempt of ‘chance of life’ could be crafted narrowing the ambiguity attaching to the interpretation of the commencement point for post-natal life.

“In the result, the defendant has established that the impugned words are unconstitutionally vague and therefore inconsistent with the principles of fundamental justice as per the Constitution of Canada.” unquote

The trial judge acquitted her of the charge.

The prosecution during the appeal in the court of appeal argued that the trial judge applied the wrong test for vagueness. The trial judge substituted a more onerous standard than the law requires. The threshold for finding a statutory provision void for vagueness is very high. The only provisions that warrant a finding of unconstitutionality on this ground are those that are truly unintelligible. The prosecution said that section 243 is not so lacking in precision that it fails to provide sufficient guidance for an understanding of that particular law.

It was the prosecution’s position that to provide fair notice of an area of risk does not require absolute precision in the language used. What is essential is that the statute provides reasonable notice to persons that their conduct approaches an area of risk. But the trial judge demanded more. He seems to have concluded that the offence-creating provision was unconstitutionally vague because he could not determine a coherent, unambiguous meaning for ‘child’ in the context of a death that occurred before the child was born.

The prosecution contended that the terms of section 243 also permits fair enforcement of the prohibition. The language used consists principally of readily definable terms that identify an area of risk. They include a fault element. That medical experts may be required to assist in determining whether a prosecution should be undertaken is not an manifestation of vagueness.

The prosecution further faulted the trial judge for failing to take into account the mens rea component of the offence in determining whether the allegation of unconstitutional vagueness should prevail. Its inclusion clarifies the reach and limits the effect of the prohibition, ensuring that inadvertent breaches are not criminal nor is conduct undertaken in good faith within the prohibition’s sweep.

The prosecution also argued that the trial judge erred in his approach to an application of the ‘chance of life’ standard. According to the prosecution, the trial judge should have received expert evidence on the viability issue and not relied on decisions in previous abortion cases to conclude that viability was a medical not a legal concept.

The lawyer for the defendant said that the trial judge got it right. He argued that the defendant’s liberty and security interests were implicated in two different ways. Not only can a conviction result in a sentence of imprisonment, but also her personal autonomy, as a female, to make fundamental life choices, including whether to disclose the natural end of her pregnancy, implicated her liberty interest under section 7. The dual nature of her section 7 interests affected is a contextual factor affecting the vagueness analysis and one that demands greater, rather than lesser, precision in the language of the prohibition.

The defendant’s lawyer submitted that the prosecution's reliance on mens rea (criminal intent) as a factor negating what is otherwise a hopelessly vague statute is misplaced. The offending language is a component of the actus reus (criminal act). Vagueness in the actus reus of necessity spills over to mens rea because of the requirement that an accused's conduct be intentional, wilfully blind or reckless with respect to the elements of the actus reus.

Further, the lawyer for the defendant took issue with the prosecution’s complaint about the failure of the trial judge to receive any evidence on the challenge. The defendant’s lawyer at trial, together with the prosecution's trial counsel, agreed to proceed in the absence of the evidence. The trial judge had the authority to require the parties to adduce evidence, but no one asked him to do so. He can scarcely be faulted for proceeding with the challenge in accordance with the positions of the parties.

The lawyer for the defendant also took issue with the prosecution's reliance on police, prosecutorial and judicial discretion as factors in the vagueness analysis. It is no answer to a claim of vagueness that charges may not be laid, prosecuted or result in convictions. None of these factors respond to the impermissible vagueness of the statutory language.

I will explain section 243 in more detail to you.

243. Every one who in any manner disposes of the dead body of a child, with intent to conceal the fact that its mother has been delivered of it, whether the child died before, during or after birth, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

The essential elements of this offence include a criminal intent to commit the crime of the disposal of a dead body of a child and a criminal intent that extends beyond the intentional commission of the criminal act to include the specific or ulterior intent to conceal the fact that the mother has given birth to a child whether or not it was alive when born.

Despite its frequent engagement by litigants who mount constitutional challenges, vagueness has been rarely applied by courts to strike down federal or provincial legislation. The governing principles have been narrowly defined, essentially thereby rejecting vagueness where judicial interpretation of the provision is possible. To instill the rule against vagueness with some content, it is perhaps best to return to the core values the rule protects such as fair notice to citizens and corresponding limitations on law enforcement discretion. A law is unconstitutionally vague if it fails (i) to give fair notice about the conduct prohibited by the law; or (ii) to impose unnecessary limitations on the discretion of those officers who are charged with enforcement of the law. 

Many years ago, I managed to strike down a Toronto municipal bylaw but not because it was vague but because it conflicted with Section 2 (e) of the Canadian Bill of Rights that states that every one is entitled to a fair hearing.  The flaw in the law was that anyone who was given a parking ticket had two options. They could pay the lower amount of the fine and not go to trial or go to trial and if convicted, pay the higher amount of the fine.  What that amounted to was if you opted to go to trial which was your right and lost, you paid a heavier penalty simply by exercising your right to go to trial. The media—newspapers, radio and television went wild over the favourable decision I got for my client when the judge said that that law was invalid and dismissed the charge against my client of parking where he shouldn’t have.  The city got rid of that particular ticket and issued a new one so that parking violators would not be faced with being penalized by exercising their right to go to trial. Hey. I was always a shit disturber. It is us shit disturbers that get things done right.

As a general rule, homicide requires the death of a human being as per section 222(1) of the Criminal Code. But under section 223(2) of the Criminal Code, a person commits homicide if they cause injury to a child before or during birth as a result of which the child dies after becoming a human being.

That section is rather vague. Does it mean that the child is a human being before it is born or after it is born?  The Supreme Court of Canada ruled that a foetus is not a human being or a person for the purposes of the law of homicide. A child becomes a human being, thus its death may be the subject of a prosecution for unlawful homicide, when the child has completely proceeded, in a living state, from the body of its mother. The child in this particular case was already dead before it emerged from its mother.

The Ontario Court of Appeal ruled that it was satisfied that the trial judge erred in striking out the word “before” in section 243 on the ground of vagueness when it was used in the clause “the child died before birth”. Section 243 is not void for vagueness in this or in any other respect. The court ordered another trial for the defendant.

The trial judge in the second trial ruled on September 23, 2014 that the defendant was within her legal rights when she hid the remains of her dead baby because it was possible that she self aborted it before the remains emerged dead from her body.  The remains of the baby was not a human being at that moment.  The first trial judge arrived at the same conclusion. That is why he also acquitted her.

This is not the first time that this woman, Ivana Levkovic had done this. In 2010, she concealed the remains of her dead aborted baby in her fridge. She was acquitted at that trial also.


I am taking a break from writing for a couple of weeks and my next article in my blog will be published on October 20th. It is titled: Drug manufacturers covered up their tainted drugs.

Meanwhile, there are 1,080 of my previous articles published in this blog that you can read at your leisure.

Dahn Batchelor

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