Case Commented On: R v MB, 2015 ABCA 232, appeal as of right (SCC)

Today the Supreme Court of Canada is hearing the appeal in R v MB, 2015 ABCA 232, concerning the proper interpretation of infanticide in section 233 of the Criminal Code, RSC 1985, c C-46. Section 233 provides as follows:

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.

For Lisa Silver’s post on the Alberta Court of Appeal decision, see here. Lisa also gave an interview on the appeal this morning on CBC Calgary’s Eyeopener.

Infanticide is one of only two offences in the Criminal Code that is gender specific, and the Women’s Legal Education and Action Fund is intervening in the case to offer submissions on how the provision should be interpreted in keeping with substantive equality.  LEAF’s news release provides its position in the case:

The Women’s Legal Education and Action Fund (LEAF) is intervening before the Supreme Court of Canada today in the case of R v MB. At issue is the legal standard in section 233, the infanticide provision, of the Criminal Code.

The crime of infanticide is one of only two gender-specific crimes in the Code. The interpretation and application of this provision raises important questions relating to the substantive equality rights of women.

Infanticide is a partial defence to a charge of murder and carries a maximum sentence of five years. These cases are rare and typically involve young, socially isolated and otherwise marginalized women, who commit the offence often in desperate and tragic circumstances. The judicial discretion currently available under this provision enables this small group of women, who might otherwise be convicted of murder and sentenced to life in prison, to avail themselves of the reduced culpability offence of infanticide.

The mitigating framework for infanticide in s. 233 reflects the principles of substantive equality, which provide that the law should not be interpreted or applied in a manner that exacerbates historical disadvantage or vulnerability. Societal values and the conditions of many women may have evolved since the infanticide provision was first introduced, but the mitigating framework of infanticide, and the underlying concerns relating to the social context of women’s inequality to which it responds, have relevance and application in the contemporary context.

Currently, the legal standard in the provision enables judges the discretion to recognize the overlapping social, economic, psychological, medical and other effects of childbirth and lactation in the commission of the crime. LEAF will argue that the words “her mind is… disturbed” in the infanticide provision set a cognizable legal standard that was purposefully chosen by Parliament for its breadth and flexibility. The provision must not be interpreted in a manner that inappropriately medicalizes this legal standard simply because it is broad and flexible enough to allow for judicial interpretation and application in a wide range of circumstances.

In the context of s. 233, substantive equality is best promoted by an interpretation that accords with Parliament’s original intent of creating a flexible legal standard that accounts for the diverse array of factors – medical, social and economic – that may arise upon birth and/or lactation. Such an interpretation enables this statutory criminal law defence to operate in a manner that promotes the substantive equality of women.

LEAF’s factum in the R v MB case is available here; see also its intervention in R v LB before the Ontario Court of Appeal.

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