Criminal law and when a fetus is a child

If you attended our CBA Health Law presentation on notable cases in 2012, you would have heard Julia Hincks talk about the case of R. v. Levkovic, where a building superintendent cleaning a vacated apartment discovered a bag on the balcony containing the remains of a human baby, delivered at or near full term. The Crown could not determine cause of death, or if the baby had been born alive. The accused mother was charged under s.243 of the Criminal Code with disposing of the dead body of a child to conceal its delivery, including where the child had died before birth.

The trial judge found the law unconstitutional, violating the mother’s rights under section 7 of the Charter as the concept of a child that died before birth was unconstitutionally vague. But the Ontario Court of Appeal ordered a new trial, finding that a fetus becomes a child, for s.243 of the Criminal Code, where, but for some external circumstance,  it would likely have been born alive.

In early March, the Supreme Court of Canada affirmed the decision of the Ontario Court of Appeal to order a new trial, finding that s.243 was sufficiently precise: “[78] … In its application to a child that died before birth, s. 243 only captures the delivery of a child that was likely to be born alive.”

R. v. Kevkovic, 2013 SCC 25.