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.
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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.
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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.
MESSAGE TO MY READERS
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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