The Ontario Court of Appeal on March 2nd released a precedent-setting decision in a case involving the interpretation of the offence of infanticide in the Criminal Code.

The Court in R. v. L.B. considered the following question: Where the Crown charges murder instead of infanticide when a mother has killed her newly-born child, is the lesser sentence for the crime of infanticide nevertheless available to the accused woman?

LEAF intervened in the case to offer the Court a perspective on the ongoing relevance of the charge of infanticide, which recognizes the reproductive functions and care giving roles of women and the unique stresses which accompany those roles.

“Women charged with murder face life imprisonment”, says LEAF Legal Director Joanna Birenbaum. “This is a significant concern to LEAF since the offence of infanticide, which carries a maximum sentence of 5 years imprisonment, is intended to account for the complex and gendered social, economic, psychological and medical context in which the offence occurs.”

Marie Henein, counsel for LEAF, says that, “This is an important decision since it upholds Parliament’s recognition of the reduced culpability of women who commit infanticide. The decision confirms that even where a woman in these terrible circumstances is charged with murder, she may be convicted of infanticide where the legal elements of a ‘disturbed mind’ caused by ‘the effects of childbirth and lactation’ are present.”

Birenbaum goes on to explain, “A life sentence with long periods of parole ineligibility in cases of infanticide is inconsistent with Parliament’s intent, the community’s sense of justice, and the uniquely gendered context of the offence. The women who commit infanticide in Canada tend to be young, poor, socially isolated and without adequate social and economic supports to cope with childbirth or caring for a child. They have often experienced sexual or other abuse and have often denied their pregnancy to others and even to themselves. Many accused women have given birth alone, and commit the offence in a state of panic, intense pain, shock, disassociation, exhaustion and alienation. The offence of infanticide is treated differently in law than murder because of these many overlapping social, cultural, psychological and medical factors, which may affect the state of mind of accused women after childbirth.”