UPDATE: LEAF was successful in obtaining leave to intervene and will appear before the SCC at the hearing on January 20, 2016.
On December 15th, 2015, the Women’s Legal Education and Action Fund (LEAF) filed a motion to seek leave to intervene before the Supreme Court of Canada (SCC) in the case of R v MB. At issue is the legal standard in section 233 of the Criminal Code, which states:
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.
The accused, M.B., was charged with two counts of second-degree murder. At trial, she was acquitted of the murders and convicted of two counts of infanticide. The majority of the Alberta Court of Appeal upheld the trial judge’s decision. The dissenting judge, Justice Wakeling, crafted a completely new legal test for the disturbance of the mind element of the infanticide offence. LEAF believes that this test would drastically narrow the ability of the often young, socially isolated and otherwise marginalized women who commit the offence, often in desperate and tragic circumstances, to rely on the mitigation created by the infanticide provisions of the Code. This result would negate what Parliament was attempting to accomplish by creating the infanticide offence in the first place. The legal standard currently 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.
If the SCC adopts Justice Wakeling’s proposed standard for establishing a disturbance of the mind or accepts the Crown’s argument that pre-existing factors are not relevant to the determination of whether a disturbance of the mind exists in a given case, a group of vulnerable women who would otherwise be able to avail themselves of the partial defence of infanticide may be convicted of murder and sentenced to life in prison.
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. LEAF previously intervened in R v LB before the Ontario Court of Appeal to ensure that the offence is interpreted in a manner that acknowledges the gendered context of the crime. If granted leave to intervene in R v MB, LEAF will argue that:
- The mitigating framework for infanticide adopted and maintained by Parliament in section 233 of the Criminal Code has relevance and application in the contemporary context and reflects the principles of substantive equality;
- The statutory language of section 233 sets an appropriate and cognizable legal standard for mental disturbance that properly integrates principles of substantive equality within the criminal law; and
- This legal standard for infanticide is consistent with criminal law principles regarding the interpretation of legal standards relating to the accused’s mental condition.
LEAF is proud to be represented by Jessica Orkin and Frances Mahon of Goldblatt Partners LLP in our motion for leave to intervene.
Should LEAF be granted leave to intervene, the SCC hearing is scheduled for January 20, 2016.
About Women’s Legal Education and Action Fund (LEAF)
Since April 17, 1985, when equality rights were enshrined in sections 15 and 28 of the Charter of Rights and Freedoms, LEAF has worked toward equality for women and girls. LEAF intervenes in key cases to ensure that when courts interpret equality rights, there will be a systemic improvement in women’s lives. For more information about LEAF, visit leaf.ca
For media inquiries, please contact:
Dr. Kim Stanton
LEAF, Legal Director
416.595.7170 x 223