INFANTICIDE DEFENCE SURVIVES ONTARIO GOVERNMENT'S POSSIBLY IDEOLOGICALLY- MOTIVATED ATTACK IN ONTARIO COURT OF APPEAL; TORONTO STAR;

"The Crown’s motivations were unclear, but appeared to flow from concerns the Criminal Code’s infanticide provisions are based on myths that women can’t control their hormones, and are allowing morally culpable killers to get away with murder.

It defines infanticide as a woman willfully causing the death of a newborn child in circumstances where she hasn’t fully recovered from the effects of childbirth or lactation and her mind is disturbed."

LEGAL AFFAIRS REPORTER TRACEY TYLER: THE TORONTO STAR;

(THE STORY ON THE DECISION STORY IS FOLLOWED BY AN EXCELLENT BACKGROUNDER - ALSO BY TORONTO STAR LEGAL AFFAIRS REPORTER TRACEY TYLER;)

---------------------------------------------------------------------------------

"The Ontario Court of Appeal has ruled that women accused of deliberately killing their newborn children can defend themselves by arguing the crime was infanticide, caused by a mental disturbance such as postpartum depression," the Toronto Star story by reporter Tracey Tyler published on March 2, 2011 begins, under the heading, "Infanticide defence available to mothers who kill, court rules."

"In a 3-0 decision Wednesday, the court dismissed a Crown appeal in the case of a Guelph woman known as L.B., who admitted to smothering her two infant sons but avoided a murder conviction and life sentence after arguing the crime was infanticide," the story continues.

"Although infanticide is punishable by up to five years in prison, L.B. was given credit for pre-trial custody and sentenced to one year in jail.

In appealing her convictions, Ontario’s attorney general, for all practical purposes, sought to abolish infanticide as a partial defence to a murder charge.

The Crown’s motivations were unclear, but appeared to flow from concerns the Criminal Code’s infanticide provisions are based on myths that women can’t control their hormones, and are allowing morally culpable killers to get away with murder.

It defines infanticide as a woman willfully causing the death of a newborn child in circumstances where she hasn’t fully recovered from the effects of childbirth or lactation and her mind is disturbed.

Wednesday’s decision is the first critical analysis of Canada’s infanticide provisions by an appeal court.

Like earlier legislation in Britain, Canada’s infanticide law, enacted in 1948, was a compromised by parliamentarians who knew that juries were often sympathetic to women on trial for the deaths of their children and unwilling to convict them of murder, particularly if it was punishable by execution, said Justice David Doherty, who wrote today’s judgment.

“In the few cases where juries did convict, judges balked at engaging in what was described as a ‘black cap farce,’ requiring judges to pronounce a death penalty knowing that the penalty was a monstrous overreaction to the crime and that it would never be carried out,” he said.

“This ‘solemn mockery’ was said to do nothing other than terrorize the mother on whom it was pronounced as she was probably the only person in the courtroom who did not know that the penalty would never be carried out,” Doherty wrote.

In Canada, 86 women have been charged with infanticide since 1977.

L.B. admitted while undergoing treatment at the Homewood Mental Health Centre that she had suffocated one son in 1998 and the other child in 2002, telling police later that she was “really confused” and “fighting with her thoughts” and that she was trying to help them.

She had grown up in an abusive home, had attempted suicide and was 17 when her first son died.

She was charged with two counts of first-degree murder.

While infanticide is available as a partial defence to murder in other countries, including England, the Crown argued the infanticide provisions in Canada’s Criminal Code operate only as an offence that women can be charged with.

Writing on behalf of Justices Michael Moldaver and Eleanore Cronk, Doherty said Parliament clearly intended to make infanticide a partial defence to murder when it enacted the legislation in 1948 and the proof was in the language.

It said homicides that would normally constitute murder or manslaughter would not be “deemed” as such when a woman’s actions fit the infanticide criteria.

Doherty rejected the Crown’s contention that Parliament removed infanticide as a defence when it rewrote the legislation in 1954, taking out the “deeming provision.”

“It would take strong evidence to satisfy me that parliament intended to abandon the very purpose behind the infanticide legislation less than six years after enacting that legislation,” he said, “and that it intended to give to the prosecutorial authorities, through their charging discretion, the exclusive power to determine whether a mother who killed her newborn child could be convicted of infanticide and not murder.”"

The story can be found at:

http://www.thestar.com/news/crime/article/947213--infanticide-defence-available-to-mothers-who-kill-court-rules

---------------------------------------------------------------------------------

AN EXCELLENT BACKGROUNDER BY TORONTO STAR LEGAL AFFAIRS REPORTER TRACEY TYLER: (IT RAN ON SEPTEMBER 23, 2010, UNDER THE HEADING, "IS INFANTICIDE A LEGITIMATE DEFENCE."

"Their numbers are few and their tragic stories vary, but women who deliberately kill their newborn children have long had something in common," the story began.

"The possibility of being treated more leniently than other killers," it continues.

"But that could change with an important case starting Thursday in Toronto that could restrict the use of an infanticide provision in the Criminal Code.

A lawyer for the province’s attorney general will ask the Ontario Court of Appeal to rule that a mother who intentionally kills her child while mentally disturbed or suffering postpartum depression can’t defend herself by arguing the crime was infanticide, punishable by up to five years in prison.

Instead, if a woman is anything less than certifiably psychotic at the time of the killing, she would face the prospect of life in prison for murder.

If the Crown succeeds, it would set Canada apart from other countries, including England, where infanticide operates as a partial defence to a murder charge.

“I think there is broad international recognition that a killing of this kind is less culpable than murder,” said Isabel Grant, a law professor at the University of British Columbia who specializes in criminal and mental health law.

“The vast majority of women would risk their lives to save their baby,” she said, “and in these cases something goes terribly wrong.”

The case involves a young woman from Guelph, Ont., who can only be identified as L.B. and admitted to killing her two infant sons in 1998 and 2002 by covering them with blankets and a plastic sheet.

Charged with first degree murder, she was convicted of two counts of infanticide in 2008 after a trial judge accepted psychiatric evidence that L.B., who had grown up in an abusive home and had attempted suicide, was suffering from a personality disorder and her actions were likely brought on by the biological and psychological effects of giving birth.

Now 29, she was 17 when her first son died.

The trial judge ordered her to immediately alert child welfare authorities if she becomes pregnant in the next 20 years.

After spending nearly three years in pre-trial custody, L.B. was given another year in jail.

Material filed with the court in conjunction with the Crown’s appeal of her convictions traces the history of infanticide law to 17th century Stuart England.

Like its British forerunner, Canada’s infanticide legislation was developed as a compromise by Parliamentarians who recognized that juries were often sympathetic to women on trial for causing the deaths of their children and unwilling to convict them of murder, particularly at a time when the crime was punishable by death.

Since 1977, 86 women in Canada have been charged with infanticide, according to Statistics Canada, but none since 2006.

Grant said charging practices have changed in recent years, with police more likely to lay first degree murder charges in these cases and prosecutors less willing to accept pleas to infanticide.

Canada’s Law Reform Commission recommended abolishing the infanticide provisions in 1984. But in 2006, the Law Reform Commission of the United Kingdom strongly recommended retaining an infanticide law, calling it a “practicable legal solution” to a social problem.

Crown counsel Jennifer Woollcombe argues that when the legislation was enacted in Canada in 1948, there was greater social stigma surrounding unwed motherhood.

In documents filed with the court, she contends that making an infanticide defence available in cases of intentional killings is bad policy because it “cheapens” the life of a child and is based on medically unsupported evidence that giving birth can lead to mental disturbances.

In their written material, Tim Breen and James Fleming, lawyers for L.B., say the policy arguments for and against an infanticide defence would make fascinating reading for a Parliamentary committee, but the only issue in the appeal is whether the Criminal Code provisions were meant to operate as a defence to what would otherwise be murder.

Woollcombe admits that infanticide was a defence to murder when the legislation was introduced by the Liberal government of Prime Minister Mackenzie King in 1948, but contends it was removed as a defence when the Criminal Code was rewritten in 1954.

Breen and Fleming say the rewrite was merely an attempt to simplify the language and did nothing as drastic as removing a defence to murder.

Much of the appeal, which is scheduled to be argued Thursday and Friday, is expected to involve a trip back through the legislative history.

But the three-judge panel is also likely to hear some impassioned arguments in defence of infanticide as a defence. Intervening in the case is the Women’s Legal Education and Action Fund (LEAF), which argues that the social stigma of pregnancy before marriage continues to be devastating for many women and that abortion, for religious or cultural reasons, is often not an option.

As a result, social, economic, cultural, religious and psychological factors work together, even today, to create a disturbed state of mind for many women after childbirth, LEAF lawyers Marie Henein, Joanna Birenbaum and Matthew Gourlay say in their written argument.

Those who commit infanticide, particularly within 24 hours of giving birth, are likely to be unmarried, under 25, socially isolated and have often hidden their pregnancy from families, friends and even themselves.

They often give birth alone, or in a public washroom, LEAF says.

“They often have no history of mental illness and it is not uncommon for them to be in a state of panic.”"

---------------------------------------------------------------------------------

This story can be found at:

http://www.thestar.com/news/gta/crime/article/865023--is-infanticide-a-legitimate-defence

---------------------------------------------------------------------------------

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;