Infanticide: The Loop Hole Of First-degree Murder

Prime Minister Justin Trudeau has assigned the Justice Minister of Canada a mandate to improve the Canadian Criminal Law. In light of contemporary scientific knowledge, the murder provisions, specifically surrounding infanticide, are in need of significant amendment. The section of the Criminal Code pertaining to infanticide is outdated from a number of different perspectives.

The most prominent issues within the current provisions of infanticide include: the use of limiting language, as only female pronouns are used; the use of exclusive language, as it does not consider modern households, such as those with adoptive or foster parents; and that it regularly references the effects of both lactation and giving birth in a negative light, both of which have been scientifically proven wrong.

These issues will be explored and analyzed by looking at the history of homicide in Canadian law, referencing contemporary scientific research and the mens rea of infanticide, and relevant Canadian cases. The law is something that should be perceived as a living and ever-evolving being. In order to remain relevant and effective, the law must change and adapt when new issues arise within the judicial realm, and new perspectives arise on how to handle them appropriately. There have been many changes to the murder provisions in Canada throughout history. For example, before 1961, all murder was punishable by death as a mandatory sentence.

On September 1, 1961 the distinction between “capital murder” and “non-capital murder” was made. Capital murder is considered to be the murder of any person that had been premeditated, or the killing of a police officer or a prison officer. Non-capital murder, on the other hand, is considered to be any other kind of murder, such as cases when the murder was not intentional or planned ahead of time. Several years later, the definitions were amended, and n December 30, 1967 capital murder was strictly considered to be the killing of the law enforcement officers. Seven years later, on January 1, 1974, the term “capital punishment” was renamed “murder punishable by death”. On December 31, 1977, “the law would revert yet again (barring other changes in the in- term) to capital murder (premeditated, law officer, prison employee and 'during commission' killings) and non-capital murder, with death and life imprisonment as the respective penalties”.

The definition of capital murder changed five times in just sixteen years, which demonstrates just how necessary it is for the lexicon of the judiciary system to be flexible. Infanticide, which is defined as the murder of a child within a year of its birth, dates back to ancient times. In ancient Greece and Rome, when a family could not afford another child during wars, famine, or drought, they would dispose of the child by whatever means necessary. In many cultures, parents would kill their new-born if it was female, as female children were not perceived to be as valuable or honourable as a male child.

Another reason for which people commit infanticide was the presence of a birth defect; in some cases, parents would choose to dispose of their disabled child order to not tarnish the genes of the blood line. There are numerous reasons for which infanticide is committed in more modern times. Before effective methods of birth control were introduced to the general public in the early 1900’s, infanticide was prevalent.

Another circumstance in which infanticide is committed is when babies that were seen as potentially illegitimate or the product of an affair are killed to dispose of the evidence. With contemporary birth control, ultrasounds, and the option of abortion many of these reasons to commit infanticide have other, more humane, solutions. In the Criminal Code, homicide is divided into three sections: murder (first-degree, and second-degree), manslaughter, and infanticide. In Canada, “infanticide first appeared in the Criminal Code in 1948: Criminal Code, R.S.C. 1927, c. 36, s. 262”.

Instances of infanticide have been viewed as immoral for centuries. The definitions and the judicial penalties for this crime have been viewed and reviewed countless times as the law continues to evolve, and fresh perspectives on the matter emerge. The Section 233 of the Criminal Code, R.S.C. 1985, c. C-46 declares that “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”. By today’s standards, there are a several issues with this definition of infanticide. Firstly, the “effect of lactation” and the “effect of giving birth” have been researched and it has been proven that some of the effects of these acts may actually be beneficial to the mother, and therefore the child, rather than negative. The effects of giving birth have been found to be similar to those of menstruation.

These symptoms include weight gain, fatigue, headaches, and poor sleep, all of which are unlikely to provide a new mother with the homicidal motivation required to kill their baby. Lactation has been found to have numerous benefits for the health of new mothers. There is research that shows that mothers can greatly benefit from breastfeeding, as it releases two main hormones, prolactin and oxytocin. Prolactin produces a relaxing and nurturing sensation for the mother, and oxytocin, also known as the love hormone, promotes a strong sense of attachment and love for both the mother and the child.

According to the Code, these hormonal effects are what supposedly cause new mothers to adopt a ‘disturbed mind’, which may ultimately lead them to infanticide. This misleading wording is problematic as it is vague and ambiguous, therefore allowing it to be used as a way for women to get away with a lesser sentence for murder. Another issue with the definition of infanticide in the criminal code is the language that is used to describe who can be guilty of such a crime. The description used refers to a traditional family structure, wherein the birth mother is the person taking care of the child, and she is the only one technically capable of being guilty of infanticide. This, in turn, means that other parents or guardians of a child, such as foster parents, adoptive parents, and the child’s birth father, cannot be charged with infanticide as they did not physically give birth to it.

As mentioned previously, since the hormones associated with giving birth and lactation have been scientifically disproven to be the cause of infanticidal rage, that means that the reasons for which people kill new-born babies must stem from outside of the walls of a new mother’s hormones. Anyone who is subjected to the stress of caring for a new-born baby should be considered capable of infanticide in the eyes of the law, and therefore the birth mother should not be the only one who serves a smaller sentence for committing the same crime as someone else.

For example, in 2018 a Toronto father, Matthew Bouffard, inflicted injuries on his three-week-old infant. When the police arrived at the scene, they found the paramedics working to keep the infant alive. The child was rushed to the hospital and the father was charged with aggravated assault. The three-week-old girl was put on life support at a nearby hospital but was later on declared deceased. The assault charge was then upgraded to a second-degree murder charge for Bouffard. If this was a mother who took out her anger on her infant, she may have been considered to have a “disturbance of the mind” and may have been charged with infanticide rather than a more severe charge such as first or second-degree murder.

The Mens Rea of a crime is the “guilty mindset” of a crime. This concept essentially states that if an offender is fully conscious, not sleepwalking or intoxicated, they are aware of the crime that they are committing. As stated before, the Code lists infanticide along with murder and manslaughter. These three offences have the same description, as they all technically fall under the description of homicide, “(a) where the person who causes the death of a human being (i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;”. It is peculiar that Canadian law is rarely, but still, allowing mothers who commit infanticide to receive a maximum sentence of five years in prison while people who commit the same crime, with the only difference being the offender has a different relationship to the victim, may possibly live the rest of their lives in prison. With the outdated assumption of effect of lactation and the effect of giving being the cause of leading the mother to a “disturbed mind” still present in the Canadian Criminal Code, one may wonder what mental illnesses women may truly experience after giving birth.

There are four main mental illnesses that have been proven to arise after giving birth: Postpartum Depression, Postpartum Obsessive-Compulsive Disorder (Postpartum OCD), Postpartum Post-Traumatic Stress Disorder (Postpartum PTSD), and Postpartum Bipolar Disorder.

Postpartum depression is a mood disorder that can cause extreme sadness and exhaustion. Postpartum Obsessive-Compulsive Disorder can cause the excessive need for things to be in order and perfectionism. Postpartum Post-Traumatic Stress Disorder can be caused by a number of issues during birth such as a lack of support or communication from the staff, an unplanned C-section, or the baby having to go to the NICU. This condition can cause extreme feelings of unsteadiness and can cause the mother to experience panic attacks.

Lastly, there is Postpartum Bipolar Disorder which is also a mood disorder where the mother has episodes of mania, hyper mania, and depression, and this can begin during the pregnancy or after the child is born. Although these disorders vary in the severity and nature of their effects, the one thing that they all have in common is that they are not solely found in women who have just gone through childbirth. Without the word “postpartum” in front of the four aforementioned mental illnesses, they are all very common illnesses found in people of all genders across the world- they are simply depression, OCD, PTSD and Bipolar Disorder.

According to the Canadian Mental Health Association “two-thirds (67%) of Canadians have had experience with depression or anxiety, with 36% saying they have suffered from it themselves” with 36% of the Canadian population personally dealing with depression and/or anxiety. These statistics show that these kinds of mental illnesses are common amongst people of all walks of life – not just new mothers - and they have various routes of treatment both medicated and non-medicated. Since these mental illnesses can be experienced by any human, not just women who have recently given birth, they should not be considered capable of inducing a new mother with a “disturbed mind”. The severity of these diseases can vary, but none of them are psychotic mental illnesses and therefore do not cause hallucinations or delusions that could put the mother in a poor mental state where she is not aware of what she is doing.

Cases of infanticide in Canadian history are rare, as infanticide is not usually the charge that is given in cases where an infant is murdered. Most of the time, when a mother murders their child, she is charged with first-degree murder. The case of R. v. Borowiec, however, is a Canadian case where infanticide was successfully charged against a mother. In 2010, a passerby found a baby wrapped in a towel, in a garbage bag placed in a dumpster. It was found that Meredith Katharine Boroweic, the child’s mother, is the one who left it like this. It was then discovered that Boroweic had also delivered a child in 2008 and another child in 2009, disposing both of the other children in the same way.

At the trial court, Boroweic was charged with two counts of infanticide. Following the trial, the crown appealed the sentence to try to determine whether the respondent’s mind, at the time of the acts which resulted in the children’s deaths, was disturbed by reason of not having fully recovered from the effects of giving birth or lactation”. In the case, the trial judge did not apply the law surrounding infanticide specifically in terms of Boroweic potentially having a disturbed mind. This appeal was dismissed as Boroweic did not have a history of mental illness, it was reported that she felt extreme dissociation during the time she committed these crimes, affecting the mens rea. Since there was no history of mental health issues besides when Boroweic gave birth it could be argued that rather than the effect of lactation or the effect of giving birth had on her mental, Boroweic used infanticide as a loop hole in the criminal justice system if she ever got caught in order to be able to commit murder.

Another case in Canada where a mother is being accused of killing her child is R v. Levkovic. The superintendent of an apartment building was cleaning up an apartment that had just been moved out of. The superintendent found the corpse of a female infant in a bag left on the balcony. It was unclear if the infant was a fetus who was near term or a prematurely born infant. S. 243 prohibits the concealed disposal of the body of a dead child in attempt to hide the delivery of that child. Levkovic stated that the child had been miscarried and questioned when the fetus is deemed an infant rather than a fetus. The trial judge clarified that this distinction is made when the child is likely to be born alive, or not facing any complications. If a woman had miscarried, it would not be likely for her to not seek medical attention. It is also strange how the infant’s body was disposed of. Levkovic was facing an infanticide charge but since there was no proof of harm or if it was a still born or miscarried baby, “Due to the decomposition of the remains, the cause of death could not be determined, and it was unknown whether there had been a live birth” she was not convicted of committing infanticide. Levkovic was only charged with concealing the body of a child, violating s.243 of the Code.

In this case, there was proof lacking in order to convict Levkovic of first-degree murder, second-degree murder, or infanticide. If the proof had been sufficient and the decomposition had not progressed far enough in order to determine the cause of death of the infant, Levkovic could have been charged with infanticide which once again, would have given her a lesser sentence for murdering a human being. The maximum sentence for someone who commits infanticide is five years in prison. Infanticide is outlined the same as were both manslaughter and murder, and it arguably should be treated the same way as both of these crimes. Although it is more common for mothers to be convicted of murder rather than infanticide, infanticide can still be used as a loop hole in the criminal justice system. If a mother knows that pleading guilty to infanticide may lower their prison sentence, they may testify that they were in an altered mental state due to having given birth so that their mens reas is tampered with.

This potential loophole is something that the Justice Minister should consider this when considering changes to the murder provisions in the Criminal Code of Canada. The Code states that, “235 (1) everyone who commits first-degree murder or second-degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life. Murder is murder regardless of the relationship the offender has to the victim. Factors that could be considered for a lighter sentencing would be an admission of guilt, emotional stability, mental illnesses that are present, and the age of the convicted offender. Infanticide, first-degree murder, and second-degree murder all have the exact same actus reus outlined by the Code. If they were all treated the same as the indictable offence with the maximum sentence being imprisonment for life, it would close the “loop hole” that is seen with infanticide.

The judicial team should take the factors mentioned above into consideration along with defenses that affect the mens rea of the crime when it comes to determining the sentence for any of these charges. In conclusion, infanticide is a lighter sentence given to a woman in a very narrow set of circumstances. In the modern world there is a much more complex system when it comes to families and households who endure the same stress factors as the birth mothers. Foster parents, step parents, adoptive parents, the birth father, and even nannies are all impacted by an infant coming in their home. It has been argued that the effect of lactation and the effect of giving birth have overall beneficial factors for the mother, and when it comes to mental health, postpartum mothers experience mental illnesses and mood disorders that are seen on a daily basis which have treatment plans and medication available.

In both R v. Borowiec and R v. Levkovic the mothers of their deceased infants managed to avoid the sentence that comes with murder. The provisions on infanticide is something the Justice Minister should consider updating when improving the Canadian Criminal Law.