Infanticide convictions upheld over second-degree murder charge, for a woman who threw her children in garbage

Supreme Court of Canada: The Court for the first time has offered a new meaning to the legal definition of what constitutes the disturbed mind of mother who kills her newborn. The Court has let the infanticide convictions stand for a Calgary woman who dropped three babies in a dumpster, rejecting the Alberta Crown’s appeal to have her retried on second-degree murder.

The respondent was originally charged with two counts of second-degree murder for the deaths of two of her children in 2008 and 2009. In 2014, she was convicted of infanticide and sentenced to an additional 18 months in jail on top of the 18 months she had already spent in custody. Alberta’s Court of Appeal upheld the infanticide verdicts, but it was a split decision, meaning the matter automatically moved to the Supreme Court. At trial, the prosecution and defence called competing experts to testify on respondent’s state of mind. The judge ruled that the definition of a disturbed mind “did not require an actual diagnosis of mental disorder and sets a very low threshold.” The respondent’s expert said she was “detached and not thinking” and was “dreaming but not there” and was having an “out-of-body experience.” The trial judge concluded that respondent’s mind was “‘disturbed’ as a result of not yet having fully recovered from the effects of giving birth.

The Court ruled by 7:0 margin that the respondent who tossed two of her newborns into the garbage is not guilty of second-degree murder. Infanticide is defined by the Criminal Code as a “wilful act or omission” that causes the death of a newborn if at the time the mother has a “disturbed mind” because “she is not fully recovered from the effects of giving birth to the child” or “the effect of lactation.” The Alberta Crown had argued the wording of the law is vague, outdated and leaves too much room for new mothers to kill their babies, no matter their moral culpability. The decision upheld the earlier findings of an Alberta trial judge and the province’s appeal court and agreed with the proposition put forth by lawyers for the respondents, who argued that she was guilty of the lesser offence of infanticide. Thomas Cromwell, J. writing for the bench, said the legal test for a disturbed mind is lower than the legal test for insanity. “The word ‘disturbed’ is not a legal or medical term of art, but should be applied in its grammatical and ordinary sense. 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 a child.” Moreover Cromwell J., also said, “In my opinion, Parliament 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 we can provide some limited guidance for trial judges and juries, the rest is left, by Parliament’s design, to their good judgment.” [R. v. Borowiec, 2016 SCC 11, Decided on 24-03-2016]

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