For Immediate Release:
Ontario Court of Appeal Decision
Clarifies Crime of Infanticide in its Modern-Day Context
March 2, 2011, Toronto – The Ontario Court of Appeal today released its precedent-setting decision in R. v. L.B., a case involving the interpretation of the offence of infanticide in the Criminal Code.
The Court considered the following question: Where the Crown charges murder instead of infanticide when a mother has killed her newly-born child, is the lesser sentence for the crime of infanticide nevertheless available to the accused woman?
LEAF intervened in the case to offer the Court a perspective on the ongoing relevance and importance of infanticide as a homicide offence that is separate and distinct from murder. Infanticide recognizes the reproductive functions and caregiving roles of women and the unique stressors which accompanythose roles.
“In the past few years, we have seen what appears to be an emerging trend of the Crown charging women who have killed their newly-born children with murder instead of infanticide. The result is that these women face life imprisonment,” says LEAF Legal Director Joanna Birenbaum. “This is a significant concern to LEAF since the offence of infanticide, which carries a maximum sentence of 5 years imprisonment, is intended to account for the complex and gendered social, economic, psychological and medical context in which the offence occurs.”
The Ontario Court of Appeal decision upheld the trial judgment convicting L.B. of infanticide, even though the Crown had charged her with murder.
“The Ontario Court of Appeal decision provides a blueprint to courts and Crown Attorneys in Ontario, as well as an important precedent across Canada, for how the infanticide offence operates in the modern-day context,” says Marie Henein, counsel for LEAF in the case. “The decision confirms that even where a woman in these terrible circumstances is charged with murder, she will be convicted of infanticide where the legal elements of a ‘disturbed mind’ caused by ‘the effects of childbirth and lactation’ are present.”
Henein says that “This is an important decision since it upholds Parliament’s recognition of the reduced culpability of women who commit infanticide.”
“A life sentence with long periods of parole ineligibility in cases of infanticide is inconsistent with Parliament’s intent, the community’s sense of justice, and the uniquely gendered context of the offence,” says Birenbaum. “The women who commit infanticide in Canada tend to be young, poor, socially isolated and without adequate social and economic supports to cope with childbirth or caring for a child. They have often experienced sexual or other abuse and have often denied their pregnancy to others and even to themselves. Many accused women have given birth alone, and commit the offence in a state of panic, intense pain, shock, disassociation, exhaustion and alienation. The offence of infanticide is treated differently in law than murder because of these many overlapping social, cultural, psychological and medical factors, which may affect the state of mind of accused women after childbirth.”
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Contact:
Joanna Birenbaum Marie Henein
LEAF Legal Director and Co-CounselCounsel
647-500-3005(cell)
416-595-7170 ext. 223 (office)416-368-5000 (office)