March 24, 2016

The Supreme Court of Canada released its decision 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 Women’s Legal Education and Action Fund (LEAF) is pleased that the Court has determined that these very difficult cases warrant the broad and flexible standard that LEAF argued should be maintained.

LEAF intervened in R v MB because the interpretation and application of this provision raised important questions relating to the substantive equality rights of women.

In this case, the Court has dismissed the Crown’s appeal of a conviction of infanticide. The Crown sought a conviction for second degree murder. Infanticide cases are rare and typically involve young, socially isolated and otherwise marginalized women, who cause the death of their newly-born children often in desperate and tragic circumstances.

The Court has affirmed that 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. The judicial discretion available under this provision ensures that the reduced culpability offence of infanticide will remain available in appropriate cases, for women who might otherwise be convicted of murder and face mandatory sentences of life in prison. Infanticide carries a maximum sentence of five years. While the Court has provided helpful direction on the interpretation of the related Criminal Code provision, it has also acknowledged the necessity of retaining judicial discretion when adjudicating these rare cases.

The dissenting judge at the Court of Appeal found that a woman had a “disturbed” mind only if her psychological health was substantially compromised – thus importing a medicalized standard into the interpretation of the Criminal Code provision. The Supreme Court has rejected this approach and notes that “the purpose of the provision was to provide a less serious offence than murder in cases of infanticide and to provide a broad and flexible standard that would be applied on a case-by-case basis”. This is precisely what LEAF argued.

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.

In the context of s. 233, substantive equality is best promoted by an interpretation that accords with Parliament’s 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, and LEAF is glad that the Court’s decision has affirmed such an interpretation in its decision today.

LEAF is proud to have been represented by Jessica Orkin and Frances Mahon of Goldblatt Partners LLP, with LEAF Legal Director Kim Stanton, in its intervention. LEAF acknowledges the excellent work of Calgary-based counsel Andrea Serink and Alias Sanders, who represented MB in the appeal.

For more information on LEAF’s work in the R v MB case, see our previous statement here, and read our factum here. For information on LEAF’s previous work regarding the infanticide provision, see our intervention in R v LB before the Ontario Court of Appeal.

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 Canadian 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 www.leaf.ca

For media inquiries:

Dr. Kim Stanton
Legal Director, LEAF
416.595.7170 x 223, [email protected]

Ms. Jessica Orkin
Partner, Goldblatt Partners LLP
416-979-4381, [email protected]