INFANTICIDE: Is it really murder?

                   

In Canada, a female person commits infanticide when by a wilful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed. (Section 233 of the Canadian Criminal Code)

Keep in mind that legislation is to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the legislation, the object of the legislation, and the intention of Parliament.

As such, a person will be found not guilty of murder and it would only apply to the mother of a newborn child and not anyone else. The real issue before a court is whether or not the mother suffered from the effects of giving birth to the child or alternatively, suffers the effect of lactation

I have searched the Internet and books on medicine and I can’t find anything that describes how effects of lactation has on the mind of the mother of a newborn child. But despite that, I will accept that lactation does somehow have a detrimental effect on the mind of a mother of a newborn.   

Infanticide has been part of the criminal law of Canada for over 66 years.  Homicides for which a conviction for infanticide is a possible verdict are rare.  Most of the few convictions for infanticide are the product of guilty pleas.  Infanticide requires a “wilful act or omission” that causes death.  The conduct must also be a culpable (deserving of blame) homicide

                   

Infanticide requires a “wilful act or omission” (mens rea) that causes death.  The conduct must also be a culpable (deserving of blame) kind of homicide. The conduct of the mother must constitute either an unlawful act or criminal negligence. Although the mental element of infanticide is not limited to the intention to kill, an act or omission done with the intent necessary for murder will satisfy the criminal mind component of infanticide. The distinction between murder and infanticide lies more in the criminal act than the criminal mind of the mother.

Considering the homicide provisions as a whole and the obvious hierarchy created by those provisions, I do not think that the infanticide provision can be read as requiring proof of the same mens rea as that required for murder.  Instead, a mens rea for infanticide akin to that for manslaughter is much more consistent with the hierarchy of culpable homicides established in the Criminal Code.  In my view, infanticide as a form of culpable homicide and as such, should require the mens rea required for manslaughter.  There is nothing inherent in the seriousness of the offence or the stigma attached to it which requires the imposition of a higher mens rea like that required for murder.  That, of course, is not to say that a mother who intends to kill her child is, therefore, not guilty of infanticide.  Clearly, a person who intends to kill foresees the risk of bodily harm to the child and, therefore, has the required mens rea for either manslaughter or infanticide. 

If infanticide provides a partial defence to murder, the mother will escape a murder conviction if the homicide falls within the purview of infanticide even though the Crown (prosecutor) may prove all the essential elements of the crime of murder.  If, however, infanticide operates only as a potential included offence on a murder charge, and if the Crown proves the essential elements of murder, the mother must be convicted of murder even though the homicide falls within the meaning of infanticide.               

If infanticide is read as requiring proof of the same mens rea as murder, circumstances will produce anomalous results.  For example, if infanticide requires the mens rea for murder, a mother who intends to kill her child but whose conduct comes within the meaning of infanticide, would therefore be convicted of infanticide, the least culpable form of culpable homicide.  Another mother, whose conduct also comes within the meaning of infanticide, but who was so emotionally distraught as to be incapable of forming the intention for murder, could not be convicted of infanticide but would instead be convicted of manslaughter, a more serious offence.  Surely, a mother who does not intend to kill her child should not be regarded as having committed a more culpable homicide than the mother who did have that intention.  This anomaly disappears if the mens rea for infanticide captures both the mother who intends to kill her baby and the mother who unlawfully assaults her baby in circumstances where bodily harm to the child is foreseeable.

  

There is a second, and I think significant, practical problem with treating the mens rea for infanticide as the same as that which is required for murder.  Infanticide requires evidence that the mother’s mind was “disturbed” at the time of the homicide.  Evidence proffered by the defence to meet the evidentiary burden on that issue will, in some cases, cast doubt on whether the mother intended to kill her child.  If infanticide operates as a partial defence to murder only where the mens rea for murder exists, the very same evidence offered to bring the mother within the infanticide defence could push her outside of that defence by negating the intention to kill or the existence of foresight as to the likelihood of death.  If the mens rea for infanticide is interpreted as including the mens rea required for murder or manslaughter, the defence is not put in the position of offering evidence of the mother’s mental state that could simultaneously support and undermine the infanticide defence. 

 I think treating the mens rea for infanticide as reaching not only an intention to kill, but also an objective foresight to cause of bodily harm and for this reason, it actually provides a coherent and comprehensive reading of the homicide provisions that best reflects the relative seriousness of the three levels of culpable homicide created in the Criminal Code.  This approach does give the word “wilful” a meaning that is somewhat inconsistent with its customary meaning.  I am however convinced that a coherent and workable reading of section 233 of the Criminal Code in the context of the homicide provisions supports the interpretation of the word “wilful” in this context

It is my opinion as to the mens rea of infanticide based on the language of the current Criminal Code with respect of the language of section 233 of the Code,  a woman who committed what is defined as infanticide should not be deemed as to have have committed murder or manslaughter.

The five-year potential maximum penalty for infanticide is far removed from the mandatory minimum life sentence for murder and is significantly less than even the maximum penalty of life imprisonment available for manslaughter.  To the extent that the potential penalty provides insight into the requisite criminal intent, the five-year maximum penalty for infanticide strongly suggests criminal intent closer to the manslaughter requirement of foresight of harm than to the murder requirement of an intention to kill or foresight of probable death.

If the mother can raise infanticide as a partial defence, and if she is successful and convicted of infanticide, she is liable to a maximum penalty of five years. However, if infanticide serves only as a potential included offence if murder is not proved and the mother is found to have committed second degree murder, she must be sentenced to life imprisonment. (She would be eligible to apply for parole after serving a minimum of ten years)                                        

If an accused can raise a “defence” of infanticide to a murder charge, does the Crown have the onus of negating that defence, or is the accused required to establish on a balance of probabilities that the homicide constitutes infanticide and not murder?  

It is a recognized fact that the disturbance of the mind, which sometimes affects new mothers, can have a variety of causes and it is almost certain that biological reasons related to hormonal changes are included therein.  It would appear that biological, social and psychological factors all intersect and depending on the severity of each and also depending on the predisposition of the mother whose actions are being considered, different consequences may follow.

Recently, the Supreme Court of Canada has waded for the first time into one of humanity's darkest corners, offering its legal definition of what constitutes the disturbed mind of a mother who kills her newborn child. But first, I will give you the background of the mother whom I will refer to her by her first name, Meredith.

 In October 2010, a newborn child was found crying in a dumpster. The baby`s mother, Meredith was sitting nearby. She later admitted that she had given birth to the child. She also admitted to having delivered two other babies in 2008 and 2009 and leaving each of them in a dumpster to die. She was subsequently charged with two counts of second degree murder in relation to the two deceased newborns.

The main issue at trial and on appeal was whether the evidence gave rise to a reasonable doubt as to whether or not  Meredith`s mind, at the time of the acts which resulted in the children’s deaths, was disturbed by reason of not having fully recovered from the effects of giving birth or lactation.

The trial judge considered the case as a whole, and noted that Meredith had no criminal record and no psychopathic or sociopathic tendencies. The trial judge concluded that, as a result of her “bizarre actions” and Dr. Smith’s opinion, (an expert) Meredith`s mind was disturbed as a result of the births. Consequently, the trial judge found that the Crown failed to prove beyond a reasonable doubt that Meredith`s mind was not disturbed.  The trial judge acquitted her of murder and instead found her guilty of two counts of infanticide.

The Crown appealed and the case ended up before the Court of Appeal. The dissenting justice, Wakeling found that a woman had a “disturbed” mind only if her psychological health was substantially compromised because she recently gave birth and she had a newborn to care for and, as a result, her ability to make rational decisions promoting the best interests of her child was substantially impaired. Wakeling found that the trial judge and the experts failed to apply this standard (or any other standard) and would have allowed the appeal and ordered a new trial. The majority of the Court of Appeal dismissed the Crown’s appeal. The Crown then appealed to the Supreme Court of Canada.

The legal issue that the Supreme Court had to deal with was the meaning of the phrase, “Her mind is then disturbed

That phrase is one of statutory interpretation. The grammatical and ordinary sense of the words, their place within the Criminal Code, the provision’s legislative history and evolution, and the jurisprudence interpreting the phrase “her mind is then disturbed” do not support the conclusion that Parliament intended to restrict the concept of a disturbed mind to those who have “a substantial psychological problem”. Rather, the phrase “mind is then disturbed” should be applied as follows: (a) the word “disturbed” is not a legal or medical term, but should be applied in its grammatical and ordinary sense; (b) in the context of whether a mind is disturbed, the term can mean “mentally agitated”, “mentally unstable” or “mental discomposure”; (c) the disturbance need not constitute a defined mental or psychological condition or a mental illness. It need not constitute a mental disorder under section 16 of the Criminal Code or amount to a significant impairment of the accused’s reasoning faculties; (d) the disturbance must be present at the time of the act or omission causing the “newly‑born” child’s death and the act or omission must occur at a time when the accused is not fully recovered from the effects of giving birth or of lactation; (e) there is no requirement to prove that the act or omission was caused by the disturbance. The disturbance is part of the actus reus (criminal intent) of infanticide, not the mens rea; (criminal act) (f) the disturbance must be “by reason of” the fact that the accused was not fully recovered from the effects of giving birth or from the effect of lactation consequent on the birth of the child. 

The trial judge, relying on the defence expert’s opinion and the evidence as a whole, concluded that B’s mind was “disturbed” as a result of not yet having fully recovered from the effects of giving birth. There was no error in the trial judge’s summary of the law of infanticide. Based on his assessment of the evidence, the trial judge was entitled to conclude or have a reasonable doubt that Meredith’s mind was “disturbed” at the time of the offences despite any indication of rational behaviour and willful blindness. (In criminal law, willful blindness is a term used to refer to a situation where the defendant tries to avoid knowing something that will incriminate him or her)

Parliament while creating the law intended the concept of a “disturbed” mind in this offence to have its ordinary meaning, so as to provide a broad and flexible legal standard which will serve the ends of justice in the particular circumstances of these difficult cases. While the Supreme Court can provide some limited guidance for trial judges and juries, the rest is left, by Parliament’s design, to the good judgment of the judges and juries.

The adjective “disturbed” means “disquieted; agitated; having the settled state, order, or position interfered with” and “emotionally or mentally unstable or abnormal”: The Oxford English Dictionary.  The grammatical and ordinary sense of the words used in section 233 of the Criminal Code supports the conclusion that the legislators did not intend to restrict the availability of infanticide to situations where the psychological health of the woman was substantially compromised or where a mental disorder was established. The statutory language also shows that there is no requirement for a causal connection between the disturbance of the accused’s mind and the act or omission causing the child’s death. There is, however, a required link between the disturbance and having not fully recovered from the effects of giving birth to the child or of the effect of lactation consequent on the child’s birth; in either case the disturbance must be “by reason thereof”.

A “disturbed” mind is different from a “mental disorder”, a term used in section 16 of the Canadian Criminal Code, and when proved on a balance of probabilities, can lead to a verdict of not criminally responsible. It must also be different from non-insane automatism, which makes the act committed by the accused involuntary.

The mental disturbance must be present at the time of the act or omission causing the “newly-born” child’s death and the act or omission must occur at a time when the accused is not fully recovered from the effects of giving birth or of lactation.

Biological and endocrinological changes caused by pregnancy could produce major clinical depression with post-partum onset.  There are three levels of depression ranging from the “baby blues” through to full blown post-partum psychosis.  One cannot definitely exclude the possibility that Meredith experienced a major depressive disorder with post-partum onset at the time of the homicides. 

Postpartum depression often begins between two weeks to a month after delivery however recent studies have shown that fifty percent of postpartum depressive episodes actually begin prior to delivery. Postpartum depression can interfere with normal maternal-infant bonding and if the baby has just been born, it is possible that the mother will dispose of the baby very soon after it has been born. Unfortunately, I don’t know how much time elapsed from the time Meredith’s babies were born until they were disposed of by her.

I should point out that in Canada, after babies who are born in hospitals, nurses from the community are sent to the homes of the mothers and their newborn babies to make sure that the mothers aren’t mentally and emotionally suffering from the effects from the births of their newborns. The visits usually comprise of two or three visits.

The Crown sought to impose a higher threshold than what is provided for by section 233 of the Criminal Code  by arguing that a mother has a “disturbed” mind only if her psychological health is “substantially compromised” because she recently gave birth. As noted earlier, this is not the legal standard intended by Parliament in s. 233 of the Criminal Code.

 The Crown suggested that the trial judge used Meredith’s conduct to determine her mental state. In other words, the Crown argued that the trial judge adopted circular reasoning in finding that Meredith’s mind must have been disturbed because her actions were “bizarre” and “absolutely contrary to the nurturing that humankind depends on for its propagation (increasing more human beings).

Justice Cromwell of the Supreme Court, speaking for the others said in part; “This argument must be rejected. The trial judge’s reasons make it clear that he did not find that the respondent’s conduct met the requirements of the definition of infanticide simply because she had killed two of her children. The trial judge relied not only on the respondent’s personal history and the circumstances of the offences (which includes the nature of the acts themselves), but also on Dr. Smith’s expert opinion. In doing so, the trial judge had an evidentiary basis for concluding that the Crown failed to prove that the respondent’s mind was not disturbed at the time of the offences and did not rely on the circular reasoning alleged by the Crown.” unquote

The Crown also argued that the trial judge failed to apply any legal test in determining whether the respondent’s mind was “disturbed” at the time of the deliveries. The Crown submits that the trial judge erroneously found that “balance of the mind” was something different from the “mind is disturbed” and failed to suggest what the test was or what level of disturbance would be sufficient.

Justice Cromwell also said; “I disagree that the trial judge failed to apply a legal test or standard. As concluded by the majority of the Court of Appeal, there was no error in the trial judge’s summary of the law of infanticide. The trial judge applied the correct standard, which is set out by the statutory language in section 233 of the Criminal Code. Although the trial judge, erroneously, thought there was significant difference between the “balance of the mind” language found in related provisions and the wording of section 233 that the mother’s mind be “disturbed”, this error did not affect his analysis of the evidence or his application of the appropriate legal standard to it. The trial judge rejected Dr. Hashman’s evidence for several reasons, including that he failed to refer to a symptom the trial judge thought was important in his final report and seemed to require evidence of a mental disorder.” unquote

Finally, the Crown submitted that the trial judge failed to consider Meredith’s “detailed account of each birth, her goal-oriented behaviour, her personal circumstances beyond not having a criminal record or psychopathic tendencies, and her pattern of rational behaviour and willful blindness” in considering whether the level of depersonalization met the requirement of infanticide. In short, the Crown argued that the Meredith’s behaviour demonstrated rational thought and an uncompromised mind.

Justice Cromwell’s response to that argument was; “Even assuming that this point raises a question of law, I cannot accept it. The trial judge took into consideration Dr. Smith’s report, which relied on the respondent’s statements about her behaviour to Dr. Smith and to the police, the respondent’s personal history, as well as the circumstances of the offences.” unquote

Dr. Smith when testifying at Meredith’s trial said that he was of the opinion that the “extreme panic associated with the delivery triggered significant dissociative symptoms, in particular depersonalization, which in turn impaired her ability to think clearly, to accurately perceive and judge her situation, to make reasonable decisions and to control her behaviour” and concluded that the respondent’s mind was disturbed as a result of not having fully recovered from the effects of giving birth.

Justice Cromwell sais in his ruling; “The trial judge also considered the case as a whole, including the facts of the offences and that the respondent had no criminal record or psychopathic or sociopathic tendencies. Based on his assessment of the evidence, the trial judge was entitled to conclude or have a reasonable doubt that the respondent’s mind was “disturbed” at the time of the offences despite any indication of rational behaviour and willful blindness.” unquote

He recommended that the Crown’s appeal be dismissed and the rest of the members of the Supreme Court agreed.

Unfortunately, Canada’s Charter of Rights and Freedoms makes it impossible for a court to order that Meredith have her ovaries removed especially since she has shown that in her three pregnancies, she killed her three babies. The court however can order that when she is near the state of giving birth to another baby, she be placed in a hospital so that the baby will not be harmed by her. Of course, they have to know where she is first.

I really believe that what actually motivated her was her unwillingness to care for the babies. She could have dropped them off at a church or somewhere else where someone would find her babies.