Dead babies matter more than living babies? The curious case of the dead baby on the balcony delivers a judgment that reveals our government is more intent on protecting dead babies than living ones.

A Supreme Court of Canada commentary by ARPA’s legal counsel, André Schutten – On Friday May 3, the Supreme Court of Canada released its decision in the R. v. Levkovic case (click here for our initial and more detailed report). Ms. Levkovic was charged under section 243 of the Criminal Code with improper disposal of a child, whether the child had died before, during or after birth. Her lawyer argued that the law was vague: how far before birth is the court willing to go? Since it’s not clear in the law how long before birth this law applied, the lawyer argued any baby who dies before birth and is subsequently disposed of should be exempt from this provision.

As reported earlier, the Supreme Court had struggled during oral arguments with the whole issue of semantics surrounding preborn life: what do we call… “it”? One judge called the preborn child a “thing”, another just referred to the subject as an “it” and the Chief Justice preferred the term “being” (but not human being!)

It is a curious case indeed. And perhaps the most curious aspect is that no one really addressed the real reason for the vagueness in this law: the fact that there is absolutely no protection for living preborn human beings in the law makes it seem a little absurd that our government (and we, as a society) would care at all about the dead body of a child who died before birth. This gaping hole in the Criminal Code, this lack of protection for a large segment of the human family, is more than curious; it’s a human rights travesty.

Putting the discussion of the lack of protection for living preborn humans aside, the ruling is a good one. The Court upheld the provision and ordered a new trial for Ms. Levkovic. The Court recognized the good purpose of section 243, namely to preserve evidence in order to investigate potentially suspicious infant deaths. This section works together with sections prohibiting infanticide and homicide. Without s. 243, young (born) victims could be killed and discarded immediately with a claim during investigation that the child had died before birth. Without s. 243, infanticide and the homicide of infants would be harder to investigate and prosecute.

For the issue of protection for preborn life, this case doesn’t help, but it doesn’t hurt either. If anything, it provides some ammunition for an argument supporting late-term protection of the preborn human. However, the Court noted that they “would in any case hesitate to import into s. 243 a fixed threshold based on gestational age that Parliament has so far chosen to omit.” (para. 52, emphasis mine]. I may be biased, but I seem to hear a hint of a dig at Parliament, suggesting it’s about time to do something about that omission…

Another laudable part of the decision is that the Court seems to have repented of their uneasy use of the word ‘child’ during the oral hearing. Throughout the judgment, Justice Fish refers to the preborn child as a ‘child’. And so he should because that is exactly what the Criminal Code does! (Another anomaly here: the term ‘child’ used to be defined in the Criminal Code until it was removed in 2002. No replacement was ever drafted. Perhaps it’s time for a more inclusive definition?) But the linguistic good of using the term ‘child’ might have been counter-acted with a curious phrase tacked onto paragraph 64 where Justice Fish explains that “fetuses that were likely to have been born alive” are “children” whereas fetuses that miscarry are just “fetuses there were miscarried”. It seems the Justice has added a new term into the cycle of prenatal development: zygote, embryo, fetus, fetus+ (read: child). I’m not 100% sure, but it seems that his suggestion is that pre-viable fetuses are not children for the purposes of this section.

To end, a direct quote from the judgment (para. 68) would be appropriate:

With regard to newly born children, the importance of s. 243 is clear. As expressed in the Goudge Report, vol. 1, at p. 4, society is gravely concerned with investigating offences committed against society’s youngest: For the community itself, the death of a child in criminally suspicious circumstances is deeply disturbing. Children are the community’s most precious and most defenceless asset. The sense of outrage and the urgent need to understand what happened are overwhelming.

Now if only we can extend that sentiment to the precious and defenceless preborn children.

 

For further commentary, the National Post has a good analysis, as does Charlie Gillis at Macleans.