CITATION: R. v. L.B., 2011 ONCA 153

DATE: 20110302

DOCKET: C49467-C49468

COURT OF APPEAL FOR ONTARIO

Doherty, Moldaver and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

L.B.

Respondent

Jennifer Woollcombe, for the appellant

Timothy Breen and James Fleming, for the respondent

Marie Henein, Matthew Gourlay and Joanna Birenbaum, for the intervener Women’s Legal Education and Action Fund (“LEAF”)

Heard: September 23 and 24, 2010

On appeal from the acquittals returned by Justice Casimir N. Herold of the Superior Court of Justice on September 11, 2008, with reasons reported at (2008), 237 C.C.C. (3d) 215.

Doherty J.A.:

I

[1] Infanticide has been part of the criminal law of Canada for over 60 years. Homicides for which a conviction for infanticide is a possible verdict are rare. Most of the few convictions for infanticide are the product of guilty pleas. There is no Canadian appellate decision that has examined the infanticide provisions in the Criminal Code, R.S.C. 1985, c. C-46 in any detail.[1] This appeal raises an issue that goes to the very nature of those provisions. Is infanticide both a substantive offence and a partial defence to a murder charge, or is it exclusively a substantive offence that may in appropriate cases be an included offence in a murder charge to be considered by the trier of fact if, and only if, the Crown fails to prove murder?

[2] Choosing between the two characterizations of infanticide has profound importance in a case like this one where a mother is charged with murdering her child. If infanticide provides a partial defence to murder, the mother will escape a murder conviction if the homicide falls within the purview of infanticide even though the Crown may prove all the essential elements of the crime of murder. If, however, infanticide operates only as a potential included offence on a murder charge, and if the Crown proves the essential elements of murder, the mother must be convicted of murder even though the homicide falls within the meaning of infanticide.

[3] The two interpretations lead to dramatically different sentencing options. If the mother can raise infanticide as a partial defence, and if she is successful and convicted of infanticide, she is liable to a maximum penalty of five years. Existing sentencing patterns suggest she could receive a non-custodial sentence: see G. Fitch, “Infanticide” (Paper presented to the National Criminal Law Program: Substantive Criminal Law, Halifax, Nova Scotia, July 2004) Federation of Law Societies of Canada, 2004, section 11.5, at p. 17. However, if infanticide serves only as a potential included offence if murder is not proved and the mother is found to have committed murder, she must be sentenced to life imprisonment.

[4] The submissions made by the Crown, respondent and intervener also raise two additional issues that affect the operation of the provisions:

· What is the mens rea or fault requirement for infanticide?

· If an accused can raise a “defence” of infanticide to a murder charge, does the Crown have the onus of negating that defence, or is the accused required to establish on a balance of probabilities that the homicide constitutes infanticide?

II

Overview

[5] L.B. was charged with two counts of first degree murder. The Crown alleged that she murdered two of her children, Alexander in 1998 and Cameron in 2002. L.B. was seventeen years of age at the time of the first homicide and subject to the terms of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”). She was an adult at the time of the second homicide, making the Criminal Code the applicable legislation. On consent, the two charges were tried before a judge without a jury. The parties agreed that L.B. would be arraigned on the Criminal Code charge first and that the evidence and submissions heard at that trial would be applied on the trial of the charge prosecuted under the YCJA. The trial judge acquitted L.B. on the murder charges and convicted her of the included offence of infanticide on both charges.

[6] The trial judge sentenced L.B. to 18 months on the count prosecuted under the YCJA. The first 12 months were to be served in jail and the last six months under supervision in the community. The trial judge also imposed a six month probation term.

[7] On the second conviction, prosecuted under the Criminal Code, the trial judge took into consideration L.B.’s pre-trial custody (two and a half years) and imposed a sentence of one day to be followed by three years probation. That sentence was to run consecutively to the sentence imposed under the YCJA. He also ordered L.B. to enter into a common law peace bond for a 20-year term. The only provision in the peace bond required L.B. to notify the child welfare agency in the jurisdiction where she lived should she become pregnant.

[8] The Crown appeals the acquittals on the murder charges, submitting that, as the trial judge found that the Crown had established all the essential elements of first degree murder on both charges, he erred in law in acquitting on those charges and convicting on the charges of infanticide. The Crown seeks a new trial on the murder charges.[2]

III

The Facts

(a) The Homicides

[9] L.B. was fifteen years old when she met D.D., a high school classmate. They began living together in the spring of 1998. L.B. was pregnant. She gave birth to a son, Alexander, on August 12, 1998. Six weeks later, she smothered Alexander to death in his crib. L.B.’s actions went undetected and the cause of death was described as Sudden Infant Death Syndrome (“SIDS”).

[10] L.B. and D.D. ended their relationship not long after Alexander’s death. She married K.B. in March 2001. They had a child, Kodie, in May 2001.

[11] L.B. became pregnant a third time late in 2001. Cameron was born on September 22, 2002. Ten weeks later, on December 1, 2002, L.B. smothered Cameron to death in his crib. Once again, L.B.’s acts went undetected. The cause of death was described as Sudden Unexplained Death Syndrome (“SUDS”).

[12] L.B. became pregnant a fourth time in the spring of 2003. Kayla was born in January 2004.

[13] In the fall of 2004, L.B., whose two surviving children were 2 ½ (Kodie) and 10 months (Kayla), was having trouble coping with her children. She had become depressed and was feeling overwhelmed. L.B. had a history of psychiatric problems. She had been admitted under the Mental Health Act, R.S.O. 1990, c. M.7 to the Homewood Mental Health Centre (“Homewood”) about eight years earlier in May 1997. In November 2004, L.B. told a friend that she was losing her temper with her two remaining children. Her friend convinced L.B. to visit a public health nurse. L.B. was seen by a doctor shortly before Christmas 2004. He prescribed antidepressant medication.

[14] In late December 2004, L.B. was admitted to Homewood. While she was in Homewood, L.B. told the attending physician that she had killed two of her children. L.B. kept a journal while in Homewood. In the journal she described killing her two children. L.B. also told her husband, K.B., that she had smothered the children. She was arrested and charged with two counts of murder in January 2005.

[15] L.B. gave a detailed videotaped statement to the police admitting that she had killed her children, Alexander and Cameron. She explained to the police that she was “really confused” and “fighting with her thoughts” when she smothered her two babies. L.B. insisted that she did not want to hurt her children, but wanted to help them. L.B. was obviously overwhelmed with feelings of guilt when she made her statement to the police. The trial judge, at para. 4 of his reasons, described the respondent’s statement as a “fairly accurate” description of the relevant events.

(b) The Respondent’s Background and Mental Condition

[16] The respondent had a troubled childhood. Her mother, who was only 19 when she had the respondent, was later diagnosed as an alcoholic. The respondent’s mother had been abused by her parents. She neglected the respondent’s emotional needs and, on occasion, physically abused her. The respondent’s parents separated when she was a young girl. The respondent reported feeling unwanted as a child. As an infant, she spent three months as a ward of the Children’s Aid Society.

[17] People who knew the respondent as a child described her as angry and depressed. She hated being alone. By the time the respondent was in grade 11, she had been ordered out of her father’s home and was living with a friend. The respondent began to engage in a variety of self-destructive behaviour suggestive of suicidal ideation. She eventually found herself admitted to Homewood in May 1997 and remained there for two weeks.

[18] The respondent and D.D., high school classmates, became romantically involved in 1997. L.B. was sixteen years old and D.D. was seventeen. The respondent wanted to have a baby. She became pregnant and D.D. quit school and got a job. The respondent and D.D. began to live together in the spring of 1998. She was pregnant and very excited about having a baby. D.D. was fully supportive and did his best to provide for his family’s financial needs.

[19] Alexander was born in August 1998. D.D., the respondent and Alexander lived in a three-unit apartment building. D.D.’s mother lived in one of the other apartments. After Alexander’s birth, the respondent had the support of her father, D.D.’s mother and other neighbours in the building. D.D. did his best to help out, but he was out of the home a great deal, often working 12-hour shifts.

[20] Alexander’s health and development seemed relatively normal in the weeks after his birth. The respondent breastfed Alexander for about four weeks. The respondent did not take well to motherhood. She became frustrated and angry with the burden of caring for her new baby. She often seemed depressed and obsessive about cleanliness. Her friends and neighbours noticed that she would seem “zoned out” at times. Her relationship with D.D. deteriorated and they often argued.

[21] In her statement to the police, the respondent described a variety of feelings on the day she killed Alexander. His crying made her angry. She wanted him to stop. When he did not, she placed him in his crib, covered him with blankets and placed a plastic cover over him. She then left his room and turned on some music. The respondent told the police that she was very confused and insisted she wanted to help Alexander feel better.

[22] Kodie, the respondent’s second child, was born in May 2001. The respondent was very attentive to Kodie’s needs and things appeared to be going relatively well. The respondent had the support of her husband, in-laws and neighbours.

[23] Cameron was born in September 2002. She breastfed Cameron for three weeks. From the outset, the respondent did not seem to be as attentive to Cameron as she was to Kodie.

[24] Cameron was a somewhat difficult child who experienced some minor medical problems. There were trips to the hospital. There is some evidence that the respondent actually started to smother Cameron on one occasion before his death, but managed to stop herself.

[25] Cameron was hospitalized briefly in late November 2002. The respondent and her husband took Cameron back to the hospital on December 1, 2002. He was dehydrated. The doctor prescribed some medication and Cameron was sent home with his parents. The respondent killed Cameron later that night.

[26] In her statement to the police, the respondent reported that on the day she killed Cameron she was very upset and feared that she would do harm to Cameron. The respondent wanted Cameron to die, believing it was the right thing to do. She knew she needed help and tried to get her husband to stay home that day. She did not, however, tell anyone about her feelings. When she killed Cameron, she told him he was going to a better place.

[27] The trial judge had the benefit of detailed psychiatric reports and testimony from Dr. P. Klassen and Dr. J. Gojer. Dr. Klassen saw the respondent pursuant to a court ordered assessment. Dr. Gojer was retained by the defence. Both doctors had a great deal of material available to them; however, neither saw the respondent until well after the charges were laid and several years after the homicides.

[28] The trial judge thoroughly reviewed the evidence of both psychiatrists. I do not propose to repeat that review. The trial judge noted that the opinions of Drs. Gojer and Klassen were very similar in most respects. Ultimately, the trial judge preferred Dr. Gojer’s opinion as to the significance of the respondent’s post-partum depression. The trial judge was entitled to make that determination and it is not challenged on appeal.

[29] Both psychiatrists agreed that the respondent suffered from a serious personality disorder prior to her pregnancies. Dr. Klassen described her as suffering from borderline personality disorder and to a lesser extent, histrionic personality disorder. He described these disorders as typically emerging during adolescence. Dr. Gojer testified that the respondent suffered from a personality disorder with prominent borderline traits stemming from issues of rejection and abandonment. Both psychiatrists agreed that the respondent’s personality features predisposed her to post-partum mood disturbance.

[30] Dr. Gojer opined that the respondent was suffering from a mixed effective disorder at the time of both homicides. In his report, he said:

It is likely that her mental state at the time of both homicides was impacted on or associated with mood and behavioural changes as a consequence of the effects of child birth, from which she had not fully recovered …

[31] Dr. Klassen agreed with Dr. Gojer’s evidence that biological and endocrinological changes caused by pregnancy could produce major clinical depression with post-partum onset. He described three levels of that depression ranging from the “baby blues” through to full blown post-partum psychosis. There was no suggestion that the respondent suffered from post-partum psychosis. Dr. Klassen accepted that the respondent suffered from some level of post-partum depression. He could not exclude the possibility that the respondent experienced a major depressive disorder with post-partum onset at the time of the homicides.

[32] Both psychiatrists acknowledged the difficulty in isolating and quantifying the biological, psychological and social factors that could contribute to a mother’s mental state after giving birth. As I understand their evidence, Dr. Gojer put a heavier emphasis on the impact of post-partum related depression on the respondent’s state of mind when she killed her children than did Dr. Klassen. However, Dr. Klassen acknowledged the presence of post-partum depression, but could not quantify the role played by that depression in the respondent’s mental state at the relevant time.

[33] The trial judge ultimately concluded, at para. 66:

We know that this disturbance of the mind, which sometimes affects new mothers, can have a variety of causes and it is almost certain ... that biological reasons related to hormonal changes are included therein. It would appear that biological, social and psychological factors all intersect and, depending on the severity of each and also depending on the predisposition of the mother whose actions are being considered, different consequences may follow.

[34] The trial judge went on to hold that he was satisfied that the respondent’s mind was disturbed as a result of her not having fully recovered from the biological effects of giving birth or perhaps the effects of lactation at the time she killed her children. He determined that the disturbance caused by the effects of giving birth and perhaps lactation was sufficient to afford the respondent the defence of infanticide.

IV

The Conduct of the Trial

[35] Counsel for L.B. relied almost exclusively on the partial defence of infanticide. Counsel conceded that the Crown had established the essential elements of the crime of murder as defined in s. 229(a), and that L.B. did not have a s. 16 defence (not criminally responsible on account of mental disorder) to either charge. On the issues of planning and deliberation, the defence acknowledged that there was evidence of both but argued that the planning and deliberation had not preceded the formation of the intent to kill and could not, therefore, support a finding of planning and deliberation for the purpose of a first degree murder conviction. The trial judge rejected this submission and concluded, at para. 27:

[T]here can be no doubt on the totality of the evidence (as all counsel agree) that both planning and deliberation have been amply proven by the evidence, and that at the requisite time in each case (that is to say when the blankets and plastic sheeting were pulled over the head of the infant in each case) Ms. B. had the intent to put them to sleep permanently, to murder them.

Accordingly, subject to the issue of the role, if any, which infanticide might play in my judgment, I make a tentative finding of guilt of first degree murder with respect to each of Alexander and Cameron. [Emphasis added.]

[36] After concluding that the Crown had established the essential elements of first degree murder, the trial judge went on to consider infanticide. He accepted that infanticide provided a partial defence to murder in that a homicide that met the criteria for a murder could be reduced to infanticide if it met the criteria for infanticide. The trial judge held, contrary to the defence position, that the accused was required to establish the partial defence of infanticide on the balance of probabilities. After a review of the evidence, the trial judge determined that the defence had met the burden of proof and established the partial defence of infanticide. The trial judge found the respondent not guilty on the charges of first degree murder and guilty on both counts of the included offence of infanticide.

V

The Issues

(a) Is the Appeal an Abuse of Process?

[37] Before turning to the issues as outlined above, I will address a preliminary argument made by Mr. Breen in his factum on behalf of the respondent. He submitted that the Crown conceded at trial that infanticide was a partial defence to murder and should not be allowed to take a different position on a Crown appeal. Mr. Breen asked that the appeal be dismissed as an abuse of process.

[38] The Crown raised the interpretation of the infanticide provisions at the outset of the trial. Crown counsel submitted that infanticide was not a partial defence to murder, but was only available as a potential included offence if murder was not made out. Defence counsel took the contrary position. The trial judge ruled that infanticide was available as a partial defence to murder. The trial proceeded.

[39] During the trial, the trial judge expressed some unease with the ruling he had made. He suggested that he needed “some help” from counsel and that more detailed argument would be welcomed. It is unclear from the trial judge’s comments whether he was referring specifically to his ruling that infanticide was a partial defence to murder. I think it is fair to say that the trial judge was prepared to hear further argument on and reconsider any of the issues he had decided, including whether infanticide was a partial defence.

[40] Neither the Crown nor the defence made any further arguments. In closing submissions, Crown counsel accepted, in keeping with the trial judge’s ruling at the beginning of the trial, that infanticide could operate as a partial defence to murder. At paras. 39-40 of his reasons for judgment, the trial judge reiterated his conclusion that infanticide was a partial defence to murder.

[41] The Crown chose to abide by the ruling of the trial judge made at the outset of the trial and to proceed in accordance with that ruling. That decision does not preclude the Crown from arguing on appeal, as it did at the outset of the trial, that infanticide was not a partial defence to murder.

(b) Is Infanticide a Partial Defence to a Murder Charge?

(i) The Crown’s Argument

[42] Ms. Woollcombe for the Crown, in able submissions, relies on a plain reading of ss. 233 and 662(3) of the Criminal Code. She submits that those sections provide that infanticide is an indictable offence that may be charged as an offence in an indictment or left with the jury as an included offence on a charge of murder in appropriate circumstances. She contends that there is nothing in the language of these provisions to support the claim that infanticide can also operate as a partial defence to reduce what would otherwise be murder to infanticide.

[43] Ms. Woollcombe begins her analysis with the language of s. 233. She submits that the section creates the indictable offence of infanticide – nothing more and nothing less. Section 233 reads:

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.

[44] Ms. Woollcombe contrasts the language of s. 233 with the language of s. 232(1), which unquestionably recognizes provocation as a partial defence that reduces murder to manslaughter:

Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. [Emphasis added.]

[45] Crown counsel asserts that absent language like “culpable homicide that would otherwise be murder may be reduced to manslaughter”, s. 233 cannot be read as providing a partial defence to murder as provocation undoubtedly does.

[46] Crown counsel next refers to s. 662(3). That section declares that infanticide is a statutorily included offence in a murder charge. Crown counsel submits, however, that nothing in the language makes infanticide a partial defence capable of reducing murder to a lesser offence. Section 662(3) provides:

[W]here a count charges murder and the evidence proves manslaughter or infanticide but does not prove murder, the jury may find the accused not guilty of murder but guilty of manslaughter or infanticide, but shall not on that count find the accused guilty of any other offence. [Emphasis added.]

[47] As Ms. Woollcombe correctly points out, a lesser and included offence is, by its very nature, only considered by the jury if the full offence charged is not proved. She argues that this self-evident relationship between the full crime charged and the potential lesser and included offence is made explicit in s. 662(3) by the words “but does not prove murder”.

[48] Crown counsel also places s. 662(3) beside ss. 610(2) and 610(4). Sections 610(2) and 610(4) are procedural provisions that, taken together, preclude successive prosecutions for the same homicide charged as murder, manslaughter or infanticide. Crown counsel submits that ss. 610(2) and 610(4), read with s. 662(3), ensure that an accused’s culpability in a homicide will be determined once and for all in a single prosecution. She submits that nothing in these procedural provisions suggests that infanticide is a partial defence to murder.

[49] Ms. Woollcombe also urges the court to refrain from “judicially creating” an infanticide defence. She contends that the concept of infanticide, which reduces murder to a much less culpable homicide, rests on discredited medical opinions and assumptions about the plight of young unwed mothers that do not accord with present reality, and constitutes an unacceptable devaluation of the worth of a newborn child. She also argues that recognizing infanticide as a partial defence to murder would be inconsistent with the rationale underlying other justifications and excuses recognized as common law defences in the criminal law.

[50] I assume that Ms. Woollcombe is referring to s. 8(3) of the Criminal Code when she refers to “judicially created” defences. I do not see this as a case where the court must decide whether to recognize a common law defence of infanticide. This is a case of statutory interpretation. If infanticide is a partial defence, it is because the Criminal Code, properly interpreted, provides for that partial defence. If the Criminal Code makes infanticide a partial defence to murder, it is not for the court to decide whether that partial defence reflects sound criminal law policy or should be reconsidered in light of advancements in medical knowledge and/or changed social circumstances. Those are matters for Parliament. In the same vein, if the Criminal Code provides for the defence, it is irrelevant whether the defence is consistent with the rationale underlying common law criminal defences. [3]

(ii) The Proper Approach to Statutory Interpretation

[51] Crown counsel’s interpretation of s. 233 and s. 662(3) is supported by the language of those sections. Statutory interpretation, however, requires more than a close reading and careful parsing of the words of the text of the specific sections in issue: Re Rizzo & Rizzo Shoes, [1998] 1 S.C.R. 27, at para. 21; Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141, at para. 9. Statutory interpretation is a multi-faceted exercise that looks to the language used in the relevant provisions, the statutory context in which those provisions appear and the object and purpose of the provisions in issue: Re Application under s. 83.28 of the Criminal Code, [2004] 2 S.C.R. 248, at para. 34. Professor Driedger’s “modern principle” has become the accepted approach to statutory interpretation:

There is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.[4]

[52] I take the “modern principle” of statutory interpretation to mean that the words of a statute, like any other words, derive their meaning from their context in the broadest sense of that word: R. v. Sharpe, [2001] 1 S.C.R. 45, at para. 33; Redeemer Foundation v. Canada (National Revenue), [2008] 2 S.C.R. 643, at para. 15; R. v. Ahmad, 2011 SCC 6, at para. 28.

(iii) The Statutory Context: The Homicide Provisions

[53] The Criminal Code is the statutory context in which the infanticide provisions are found. I will focus on the homicide related provisions in the Criminal Code. Read together, those provisions provide a detailed, integrated statutory scheme of which infanticide is one part. The homicide provisions constitute the relevant statutory context.

[54] Section 222(1) defines homicide as causing the death of a human being by any direct or indirect means. Homicides are culpable or non-culpable: Criminal Code, s. 222(2). The former are criminal, the latter are not: Criminal Code, s. 222(3). A person commits culpable homicide when that person causes the death of another person by one of the means described in s. 222(5).

[55] Section 222(4) divides culpable homicides into three different indictable offences: murder, infanticide and manslaughter. Murder is defined in s. 229 and subdivided into first and second degree murder by s. 231. All murders are punishable by a minimum sentence of life imprisonment: Criminal Code, s. 235. Infanticide is defined in s. 233 and is punishable by a maximum of five years in prison: Criminal Code, s. 237. There is no minimum punishment. All culpable homicides that are neither murder nor infanticide are manslaughter: Criminal Code, s. 234. Manslaughter is punishable by a maximum of life imprisonment: Criminal Code, s. 236(b). There is no minimum punishment for manslaughter unless a firearm is used in the commission of the manslaughter: Criminal Code, s. 236(a).

[56] Murder and manslaughter are distinguished by the mental element required to prove murder. Murder requires proof of an intention to kill (s. 229(a)(i)) or an appreciation that one’s acts are likely to cause death (s. 229(a)(ii), s. 229(c)). Manslaughter does not require either an intention to kill or an appreciation that death may be caused by one’s acts, but instead requires objective foreseeability of the risk of bodily harm: R. v. Creighton, [1993] 3 S.C.R. 3, at pp. 44-45. The requisite mental element required to prove murder is what makes murder more morally culpable than manslaughter and justifies the more punitive sentence.

[57] Unlike murder and manslaughter, infanticide and murder are not distinguished by the required mental element. Infanticide requires a “wilful act or omission” that causes death. The conduct must also be culpable homicide within s. 222(5), meaning, in most cases, that the conduct must constitute either an unlawful act or criminal negligence: Criminal Code, ss. 222(5)(a) and (b). As will be explained later in these reasons, although the mental element of infanticide is not limited to the intention to kill, an act or omission done with the intent necessary for murder will satisfy the mens rea component of infanticide. The distinction between murder and infanticide lies more in the actus reus than the mens rea.

[58] Infanticide, as defined in s. 233, targets a very particularized form of culpable homicide. The section has potential application only where a mother kills her newborn child, defined in the Criminal Code as a child under one year of age. The potential application of infanticide is further limited by requiring that at the time of the homicide, the mother’s mind must be “disturbed”, either because she is not fully recovered from the effects of giving birth or by reason of the effect of lactation.

[59] The definition of infanticide focuses on two things. First, it requires a mother-child relationship between the perpetrator and the victim. Second, the mental state of the perpetrator/mother must be disturbed and that disturbance must be connected to the effects of giving birth or lactation. Unlike other mental states that may mitigate criminal responsibility, infanticide does not require any causal connection between the disturbance of the mother’s mind and the decision to do the thing that caused her child’s death: R. v. Guimont (1999), 141 C.C.C. (3d) 314 (Q.C.A.), at p. 317; E. Cunliffe, “Infanticide: Legislative History and Current Questions” (2009) 55 Crim. L.Q. 94, at pp. 112-113; I. Grant, D. Chunn & C. Boyle, The Law of Homicide, loose-leaf (Scarborough: Carswell, 1995), at p. 4-91. Because the mother’s mental “disturbance” is not connected to the decision to kill, that “disturbance” is better considered as part of the actus reus and not a mens rea component of the crime of infanticide.

[60] The drastically different penalties available upon conviction for murder, manslaughter or infanticide reflect the very different levels of moral blameworthiness attached to each offence. Clearly murder is regarded as the most blameworthy and infanticide as the least blameworthy. Manslaughter occupies that vast middle ground of blameworthiness between the two extremes of murder and infanticide. The very different penalties prescribed by Parliament for the offences of murder and infanticide leave no doubt that a mother who commits a culpable homicide that constitutes infanticide is regarded as having committed a much less serious crime than someone who committed murder.

[61] Section 222(4) declares that “culpable homicide is murder or manslaughter or infanticide.” Section 222(4) suggests that the three categories of culpable homicide are alternatives to each other, such that any specific culpable homicide will fit within one and only one of the three categories. To properly place a particular culpable homicide in its appropriate category one must look to the definitions of murder and infanticide. If the homicide does not fit within either of those specific definitions, by operation of s. 234, the homicide is categorized as manslaughter.

[62] Infanticide is clearly a much more specific form of culpable homicide than murder. In my view, it is arguable that, in categorizing a culpable homicide, one must begin with the narrower and more specific definition of infanticide. If a homicide fits within that definition it is excluded by the operation of s. 222(4) from the broader category of culpable homicides defined as murder. On this approach, a culpable homicide that is infanticide is not murder. For the purpose of s. 662(3), the Crown fails to prove murder if the homicide is infanticide, thereby allowing a jury to return a verdict on the included offence of infanticide. Counsel for the respondent and the intervener, in their helpful submissions, advance this interpretation.

[63] I do not go so far as to agree with counsel that the reading of the homicide provisions as a whole compels the interpretation they have advanced as summarized immediately above. I am satisfied, however, that placing s. 233 and s. 662(3) in the broader context of the homicide regime renders the interpretation urged by Crown counsel considerably less obvious than it appears to be when those two sections are considered in isolation. The exercise in statutory interpretation must go beyond the words of those sections even as read in the context of the other homicide provisions.

(iv) The Legislative Evolution and History of the Infanticide Provisions

[64] Tracing a statute from its common law and legislative roots to its current version can shed considerable light on the meaning of the present day provision. In tracing that legislative genealogy, extrinsic aides, including statements in Hansard, can assist. In looking to these aides, however, the interpreter must be cautious not to confuse the legislative purpose and intent, as expressed in the language of the statute, with a Minister’s or other government official’s stated understanding of that purpose or intent. The latter is at best some evidence of the former: R. Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008), at pp. 577-93, 608-18.

[65] The present infanticide provisions have a clear pedigree going back to the English Infanticide Act, 1922 (U.K.), 12 & 13 Geo. V, c. 18.[5] That legislation was replaced by the Infanticide Act, 1938 (U.K.), 1 & 2 Geo. VI, c. 36, which remains in force in the United Kingdom today. Amendments to that Act were proclaimed in force in October 2010 while this judgment was under reserve. Infanticide first appeared in the Criminal Code in 1948. Significant amendments were made to the infanticide provisions as part of the omnibus revision of the Criminal Code in 1954: Criminal Code, S.C. 1953-54, c. 51 (1953-54 Criminal Code). There have been no significant changes to those provisions since that time. The evolution of the English legislation is set out in Appendix “A” to these reasons. The recent English amendments are found in Appendix “A1” and the evolution of the Canadian infanticide provisions is set out in Appendix “B” to these reasons.

[66] Counsel have diligently collected extracts from the parliamentary debates in England and Canada, as well as other contemporary secondary sources, in an effort to provide insight into the purpose and intent of the initial English and Canadian legislation and the subsequent amendments to both pieces of legislation. As will become evident, the amendments made to the Criminal Code in 1954 are the key to the interpretative exercise undertaken in these reasons.

(1) The English Legislation

[67] The Infanticide Act, 1922 (Appendix “A”) was the culmination of a long struggle for legislation that drew a distinction between mothers who killed their newborn children, often in most difficult circumstances, from other forms of culpable homicide. Juries had demonstrated a strong reluctance to convict mothers who had killed their newborn children of murder. At the time, murder carried a mandatory death penalty. Juries would acquit mothers entirely or convict of substantially less serious charges, such as concealing the child’s birth, even where the evidence left no doubt that the mother had killed her child: see D. Seaborne Davies, “Child-Killing in English Law” in The Modern Approach to Criminal Law: Collected Essays (London, U.K.: MacMillan and Co., 1945) 301, at pp. 316-18; Law Commission, A New Homicide Act for England and Wales? A Consultation Paper (Consultation Paper No. 177) (London: Law Commission, 2005), at paras. 9.5-9.6.

[68] In the few cases where juries did convict, judges balked at engaging in what was described as a “black cap farce”, requiring judges to pronounce a death penalty knowing that the penalty was a monstrous overreaction to the crime and that it would never be carried out. This “solemn mockery” was said to do nothing other than terrorize the mother on whom it was pronounced as she was probably the only person in the courtroom who did not know that the penalty would never be carried out: Davies, at p. 319; Law Commission, A New Homicide Act for England and Wales? A Consultation Paper, at paras. 9.5-9.7; Law Commission, Murder, Manslaughter and Infanticide (Law Com. No. 304) (London: Law Commission, 2006), at paras. 8.13-8.14.

[69] The Infanticide Act, 1922 defined infanticide in terms that are similar to the present definition in Canada. That definition established the often criticized connection between mothers who kill their newborn children and mental disturbance attributed to the act of giving birth. The Infanticide Act, 1922 further provided that those convicted of infanticide were to be sentenced as if guilty of manslaughter. The legislation thereby removed the mandatory death penalty and gave trial judges a wide sentencing discretion that would permit the imposition of a sentence that accurately reflected the mother’s culpability in the specific circumstances of the case.[6]

[70] Section 1(2) of the Infanticide Act, 1922 made it clear that infanticide operated as a partial defence to a murder charge. The section provided that on a murder trial where the jury was satisfied that infanticide was made out, the jury could:

[N]otwithstanding that the circumstances were such that but for this Act the offence would have amounted to murder, return in lieu thereof a verdict of infanticide.

[71] In carving infanticide out from the definition of murder and treating it as a distinct and less culpable offence, Parliament attempted to bring the law into line with the community’s sense of fairness and justice as expressed through the verdicts of numerous juries: see P. Devlin, Trial by Jury (London: Stevens & Sons, 1956), at p. 160. The creation of a distinct, less culpable form of homicide, applicable to mothers who killed their newborns while suffering a mental disturbance related to birth, is an example of the application of the principle of fair labelling in criminal law. The fair labelling principle dictates that two types of conduct that are both regarded by the community as worthy of a criminal sanction, but are seen as significantly different in terms of culpability, should be identified and treated as different substantive crimes subject to different penalties that reflect the different level of moral culpability. Fair labelling promotes public confidence in and support for the administration of criminal justice: A. Ashworth, Principles of Criminal Law, 5th ed. (Oxford: Oxford University Press, 2006), at pp. 88-90.

[72] The Infanticide Act, 1922 was replaced by the Infanticide Act, 1938 (Appendix “A”). The Infanticide Act, 1938 maintains infanticide’s unique status as both a separate offence and a partial defence to murder: R. v. Gore, [2007] EWCA Crim 2789, at para. 20; Law Commission, Murder, Manslaughter and Infanticide, at paras. 8.6-8.8. That unique status is unaffected by the 2010 amendments to the Infanticide Act, 1938: see Appendix “A1”.

(2) The Canadian Legislation

[73] The debates in Hansard preceding the first Canadian infanticide legislation in 1948 demonstrate that the same factors that motivated the English legislation in 1922 were at play in Canada in 1948: see House of Commons Debates, 1948, Vol. V (June 14, 1948), at pp. 5184-87. Like their English counterparts, Canadian juries were reluctant to brand mothers as murderers, many of whom were very young, emotionally distraught, and in dire social and economic circumstances at the time of the homicide. As in the United Kingdom, the death penalty was mandatory for all murders in Canada in 1948.

[74] The initial Canadian legislation (Appendix “B”) closely tracked the Infanticide Act, 1922, even to the point of ignoring the changes made by the Infanticide Act, 1938. Section 262(2) introduced infanticide into the Criminal Code and, like its English counterpart, tied the concept to mental disturbance arising from the act of giving birth:

A woman who by wilful act or omission causes the death of her newly born child shall be deemed not to have committed murder or manslaughter if at the time of the act or omission she had not fully recovered from the effect of giving birth to such child and by reason thereof the balance of her mind was then disturbed, but shall be deemed to have committed an indictable offence, namely, infanticide. [Emphasis added.]

[75] Unlike the English legislation, the Canadian provisions did not treat infanticide as manslaughter for the purposes of sentencing. Instead, s. 268A provided for a maximum penalty of three years imprisonment. The three-year maximum penalty for infanticide clearly marked it as significantly less culpable than murder, and less culpable even than manslaughter.

[76] Section 262(2) expressly declared that culpable homicide that fell within the definition of infanticide was to be “deemed” not to be murder or manslaughter. I take the word “deemed” to signal that Parliament intended that culpable homicides which had formerly constituted murder or manslaughter should now be regarded by law as infanticide and not murder or manslaughter if those homicides fell within the language of the infanticide provision. Consequently, for the purposes of applying the included offences provision in s. 951(2) (now s. 662(3)), a culpable homicide that fell within the definition of infanticide was deemed not to be murder, meaning that the Crown had failed to prove murder if the homicide came within the definition of infanticide. As murder had not been proved, it was open to the jury under the included offence provision to return a verdict on the included offence of infanticide. I think the 1948 legislation, while perhaps not as clearly worded as the Infanticide Act, 1922, nonetheless makes it clear that infanticide was brought into the Criminal Code as both a stand alone indictable offence and a partial defence to a murder charge.

[77] I come now to the amendments made to the infanticide provisions in the 1953-54 Criminal Code (Appendix “B”). Those amendments were part of the comprehensive overhaul of the Criminal Code that began with the creation in 1949 of a Royal Commission to revise the Criminal Code. The Commissioners were charged with the daunting task of modernizing a Criminal Code that had become unwieldy after decades of ad hoc amendments. The terms of reference included:

· revising ambiguous and unclear provisions;

· adopting uniform language;

· eliminating inconsistencies, legal anomalies and defects;

· rearranging provisions;

· seeking to simplify by omitting and combining provisions;

· making the Criminal Code an exhaustive statement of the criminal law; and

· effecting procedural amendments deemed appropriate for the speedy and fair enforcement of the criminal law: see Royal Commission on the Revision of the Criminal Code, Report of Royal Commission on the Revision of the Criminal Code (Ottawa: Queen’s Printer, 1954).

[78] Counsel, particularly Mr. Breen and Mr. Fleming, have diligently tracked the progress of the Criminal Code revision from the appointment of the Commission to the first draft, and through proclamation: see A.J. MacLeod & J.C. Martin, “Offences and Punishments under the New Criminal Code” (1955) 33 Can. Bar Rev. 20; A.J. MacLeod & J.C. Martin, “The Revision of the Criminal Code” (1955) 33 Can. Bar Rev. 3.

[79] Five changes to the infanticide provisions can be found in the over 750 sections making up the new Criminal Code. I think only one of the five amendments is germane to the present inquiry. That amendment removed the phrase, “shall be deemed not to have committed murder or manslaughter” from the section defining infanticide. I will, however, describe the other four amendments before addressing the deletion of the deeming provision from the definition of infanticide.

[80] The penalty for infanticide was increased from three to five years as part of the standardization of maximum penalties under the Criminal Code: 1953-54 Criminal Code, s. 208. That standardization eliminated potential maximums between two and five years: House of Commons Debates, 1953-54, Vol. III (February 25, 1954), at p. 2446. In my view, the increase in maximum penalty does not speak to any reassessment of the blameworthiness of the crime of infanticide.

[81] The phrase, “newly born child” was defined as a child under one year of age. This amendment corresponded to an amendment made by the Infanticide Act, 1938 in England, and overrode the narrow meaning that had been given to the phrase, “newly born child” by the English and Canadian courts: R. v. O’Donoghue (1928), 20 Cr. App. R. 132 (C.A.); R. v. Marchello (1951), 100 C.C.C. 137 (Ont. H.C.). There was no mention of this amendment in the debates.

[82] The amendments also introduced the effect of lactation as a second source of mental disturbance that could support the offence of infanticide. This amendment was also taken from the Infanticide Act, 1938 that had introduced the effect of lactation into the English infanticide law.[7] This amendment drew no debate.

[83] The 1954 amendments also introduced s. 570 into the Criminal Code. That amendment, unlike the amendments referred to above, was a Canadian original and does not appear to have any counterpart in other commonwealth legislation. Section 570 (now s. 663) provided:

Where a female person is charged with infanticide and the evidence establishes that she caused the death of her child but does not establish that, at the time of the act or omission by which she caused the death of the child,

(a) she was not fully recovered from the effects of giving birth to the child or from the effect of lactation consequent to the birth of the child, and

(b) the balance of her mind was, at that time, disturbed by reason of the effect of giving birth to the child or the effect of lactation consequent on the birth of the child,

she may be convicted unless the evidence establishes that the act or omission was not wilful.

[84] Section 570 was a direct response to the criticisms of the 1948 legislation made by Chief Justice McRuer in Marchello at pp. 141-42. In that case, a woman was charged with murdering her four and a half month old child. She was found not guilty on account of insanity. Chief Justice McRuer did not leave infanticide with the jury as, in his view, a four and a half month old child was not a “newly born child” within the meaning of the infanticide provision. After the trial was completed, Chief Justice McRuer delivered a judgment that had nothing to do with the facts in Marchello, but was a cogent criticism of the infanticide provision. He observed that where a mother was charged with infanticide (not the charge in Marchello), she would be acquitted outright if the Crown failed to prove either aspect of the mental disturbance component of infanticide. This could mean that a mother who intentionally, and after calm and careful consideration, decided to kill her child, would escape criminal liability altogether if charged only with infanticide.

[85] Section 570 sought to correct the shortcomings identified in Marchello. It is an unusual, if not unique, provision in the Criminal Code. Section 570 (now s. 663) not only absolves the Crown from proving an element of the offence of infanticide (the mental disorder component), it also appears to transfer the onus of proof on the issue of wilfulness to the defence.[8]

[86] There are potential constitutional problems with s. 570 (now s. 663). Those problems do not arise in this case. By its terms, s. 570 applies only where “a female person is charged with infanticide”. The respondent was charged with first degree murder, not infanticide. Where the Crown proceeds on a murder charge, there is no danger that the mother will escape liability if the only thing lacking in the Crown’s case is evidence of a mental disturbance arising out of the birth of the child. Assuming the Crown proves beyond a reasonable doubt that the mother caused the child’s death by an unlawful act, any absence of evidence supporting a mental disturbance required for infanticide would lead either to a murder or manslaughter conviction, depending on whether the Crown proved the mens rea for murder.

[87] Section 570 (now s. 663) was designed to deal with a very specific problem that arose only in cases where infanticide was the charged offence. That section does not assist me in determining whether Parliament intended to remove infanticide as a partial defence to murder when it amended the infanticide provisions in 1954.

[88] The final and, for present purposes, important amendment to the infanticide provisions is best demonstrated by comparing the language of s. 204 in the 1953-54 Criminal Code with the language in its predecessor provision, s. 262(2). I have highlighted the portions deleted from the earlier legislation by the amendment:

Section 262(2)

Section 204

A woman who by wilful act or omission causes the death of her newly born child shall be deemed not to have committed murder or manslaughter if at the time of the act or omission she was not fully recovered from the effect of giving birth to such child and by reason thereof the balance of her mind was then disturbed, but shall be deemed to have committed an indictable offence, namely, infanticide.

A female person commits infanticide when by 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 the effect of lactation consequent on the birth of the child her mind is then disturbed.

[89] Section 204 removed both deeming provisions from s. 262(2). The removal of the second deeming provision, “but shall be deemed to have committed an indictable offence, namely, infanticide” effected no substantive change. The deleted language was replaced by the clearer, straightforward phrase, “a female person commits infanticide when ...” that appears at the beginning of s. 204.

[90] The removal of the phrase “shall be deemed not to have committed murder or manslaughter” from the infanticide provision is more problematic. That phrase had made it clear that infanticide acted as a partial defence to murder by declaring that a culpable homicide that was infanticide would be “deemed” not to be murder. The removal of the deeming language obscures that intention to some extent.

[91] In determining whether the removal of the deeming language meant that infanticide was not a partial defence to murder, I start from the premise that, for the reasons outlined above, it was Parliament’s intention to make infanticide a partial defence to murder under the 1948 legislation. The Crown must convince the court that the removal of the deeming language signalled Parliament’s intention to fundamentally alter the nature of infanticide by removing it as a potential partial defence to murder. If that was indeed the purpose behind the removal of the deeming language, it seems to me that Parliament chose to achieve its purpose in a somewhat indirect fashion.

[92] In assessing the effect of the 1954 amendment, I bear in mind that infanticide had been introduced into the Criminal Code only about six years earlier. That introduction was precipitated by the perceived need to give juries trying murder cases involving mothers who killed their children an alternative to a murder verdict that more accurately reflected the jury’s sense of the true culpability of the mother.

[93] On the Crown’s argument, by removing the deeming provision, Parliament effectively undid the very purpose for which the infanticide provision had been introduced six years earlier. If the Crown is correct, juries facing mothers charged with murder after the 1954 amendments would find themselves back in exactly the same predicament that juries had faced prior to the introduction of the infanticide law in 1948. If the Crown proved the essential elements of murder, the jury would be required to convict of murder even though the circumstances brought the offence within the less blameworthy crime of infanticide. It would take strong evidence to satisfy me that Parliament intended to abandon the very purpose behind the infanticide legislation less than six years after enacting that legislation, and that it intended to give to the prosecutorial authorities, through their charging discretion, the exclusive power to determine whether a mother who killed her newborn child could be convicted of infanticide and not murder.

[94] There is a presumption that when Parliament changes legislation it does so for a purpose. That purpose may, however, vary from benign housekeeping concerns to the intention to make a fundamental change in the law: Sullivan, at pp. 579-86. The nature of the legislation effecting the amendment can assist in determining the purpose behind any specific change. Referring specifically to the amendments made to the Criminal Code in 1954, Professor Sullivan has commented, at p. 585:

Particularly where an older statute is given a major overhaul, as was the case with the 1953-54 Criminal Code, it may be clear that even dramatic changes in wording are meant to simplify or otherwise modernize the style rather than to change the substance of the provision. [Emphasis added.]

[95] I find nothing in the debates surrounding the introduction of the 1953-54 Criminal Code referring to the deletion of the deeming language from the infanticide provision, much less anything suggesting that, in doing so, Parliament intended to remove infanticide as a partial defence to murder. Nor have I found anything in the secondary sources contemporary to the amendments suggesting Parliament intended to remove infanticide as a partial defence. For example, J.C. Martin, Q.C., the editor of Martin’s Criminal Code 1955 (the first Martin’s Criminal Code), outlined the amendments made by the 1953-54 Criminal Code at length in his introduction (Toronto: Cartwright & Sons, 1955). At pp. 10-11, he described the changes to the infanticide amendments. His commentary does not suggest any change in the fundamental nature of infanticide. In his comments under the infanticide section itself, Mr. Martin observes, at p. 392: “The present section, with the definition mentioned, [the definition of newly born child] is taken from the Infanticide Act, 1938, (U.K.).”

[96] Mr. Martin was a member of the Royal Commission charged with the task of revising the Criminal Code, and one of the drafters of the revision. I would not have expected Mr. Martin to connect the 1954 amendments to the Infanticide Act, 1938, which clearly recognized infanticide as a partial defence to murder, if Mr. Martin perceived that the 1954 amendments had removed infanticide as a partial defence.

[97] The 1953-54 Criminal Code did not alter the tripartite division of culpable homicide into murder, manslaughter and infanticide created by the infanticide amendments in 1948. Nor did it alter the very different levels of culpability applicable to each of the forms of culpable homicide as represented by the potential penalties. Parliament clearly intended to maintain the distinction between homicides that constituted murder and the much narrower category of homicides that constituted infanticide. That distinction, unlike the distinction between murder and manslaughter, did not depend on the mental element, but turned on the existence of specific facts peculiar to infanticide.

[98] Treating infanticide as a partial defence to murder is consistent with the distinction drawn between infanticide and murder by Parliament. It allows juries to draw that distinction in cases where mothers are charged with murdering their children and evidence brings the homicide within the very narrow factual confines of infanticide. Eliminating infanticide as a partial defence effectively allows the Crown to remove the distinction between infanticide and murder through the exercise of its charging discretion.

[99] My application of the “modern principle” of statutory interpretation leads me to conclude that Parliament intended to make infanticide a partial defence to murder when it introduced infanticide into the Criminal Code in 1948. Parliament did not intend to alter the status of infanticide by the 1954 amendments. Infanticide was initially, and still is, both a stand alone indictable offence and a partial defence to a charge of murder.

[100] Guimont, the only appellate authority that has commented on the nature of infanticide, is consistent with my interpretative analysis. The academic commentary also supports my conclusion.

[101] In Guimont, Proulx J.A., an eminent criminal law lawyer and jurist, writing for a unanimous court, described infanticide as a “defence” on a murder charge. He held, at p. 319, that infanticide, just like any other defence, should be left with the jury where the evidence gave that defence “an air of reality”. Proulx J.A. did not examine the nature of the “defence” of infanticide at length as it would appear that the Crown accepted that infanticide could be a partial defence to murder.[9]

[102] Professor Grant addresses the interpretative problem directly in her recent article, “Desperate Measures: Rationalizing the Crime of Infanticide” (2010) 14 Can. Crim. L. Rev. 253. She observes, at pp. 262-63:

In my view, not only should section 662(3) be interpreted as permitting a finding of infanticide even when murder is proved, section 233 should be read as providing that where the elements of infanticide are present, the offence is infanticide and not murder. This interpretation is not re-writing section 233 but rather giving it an interpretation that provides both murder and infanticide with a role to play in the scheme of culpable homicide. In other words, a finding of infanticide should rule out a finding of murder. This is in fact how the original infanticide provision was drafted in Canada…

The removal of the reference to manslaughter and murder was part of a revision of form that was not intended to change the substance of the offence of infanticide. [Emphasis in original.]

[103] Professor Grant’s view is echoed in other Canadian academic commentary, although it must be said that most commentators engage in little, if any, analysis of the issue: Cunliffe, at p. 103; Fitch, at p. 13; S. Anand, “Rationalizing Infanticide: A Medico-Legal Assessment of the Criminal Code’s Child Homicide Offence” (2010) 47 Alta. L. Rev. 705, at p. 707.

[104] It has been the accepted wisdom in Canada since infanticide became part of the criminal law that it operates as both an offence and a partial defence to murder. There is merit to the Crown’s claim that infanticide has operated in this dual capacity more by way of assumption than as a result of any critical analysis of the relevant Criminal Code provisions. This appeal has forced that critical analysis. I am satisfied that the analysis supports the long held assumption. Infanticide is both a discrete indictable offence and a partial defence to murder under the terms of the present Criminal Code. Whether it should continue to so operate, and if so under what terms, raises difficult policy questions. Those questions are for Parliament and not the court.[10]

VI

The Other Issues

[105] My conclusion that the trial judge correctly held that infanticide operates as a partial defence to murder decides this appeal against the Crown. The trial judge found that the respondent had made out the defence even though he put the onus on the respondent to establish the defence on the balance of probabilities. Although the resolution of this appeal does not require that the court address the other two issues raised in argument, those issues are integral to the proper interpretation of the infanticide provisions. Given the detailed and thoughtful arguments of counsel, the present uncertainty in the law, and the unlikelihood that the matters will come back before the court in the near future, I think the court should take this opportunity to resolve those issues.

(a) The Mens Rea Requirement for Infanticide

[106] For convenience, I repeat s. 233:

[107] Counsel for the respondent and the intervener submit that infanticide requires proof of the same mens rea required to prove murder under s. 229(a); that is an intention to kill, or an intention to cause bodily harm knowing that it is likely to cause death and being reckless as to that result. In making this argument, counsel rely on the word “wilful” in s. 233, the language of the 1948 provision, an obiter statement in Creighton, and trial decisions, e.g. R. v. Smith (1976), 32 C.C.C. (2d) 224 (Nfld. Dist. Ct.), at pp. 230-31; R. v. Del Rio, [1979] O.J. No. 16 (H.C.), at para. 46. Most of the Canadian academic literature also favours a mens rea for infanticide akin to that required for murder: see Cunliffe, at pp. 113-16; Anand, at pp. 716-18; Boyle et al., at 4-91 to 4-93.[11]

[108] The respondent’s and intervener’s reliance on the word “wilful” in s. 233 is understandable. “Wilful” is a strong mens rea word and can be understood to require proof of an intention to bring about the prohibited consequence, e.g. death, even where, as in s. 233, on a plain grammatical reading “wilful” modifies the phrase “act or omission” and not the phrase “causes death”: R. v. Docherty, [1989] 2 S.C.R. 941, at pp. 949-50; M. Manning & P. Sankoff, Manning, Mewett & Sankoff: Criminal Law, 4th ed. (Markham: LexisNexis, 2009), at p. 173. However, the Criminal Code is notoriously inconsistent in the manner in which it uses mens rea words. This court has recognized that “wilful” can have different meanings in different sections of the Criminal Code: R. v. Buzzanga and Durocher (1979), 25 O.R. (2d) 705 (C.A.), at p. 717.

[109] In Buzzanga, this court stressed that the meaning of “wilful” in one section of the Criminal Code could be influenced by the mens rea language of clearly related Criminal Code provisions. The mens rea for murder is expressly set out in the language of s. 229(a). The word “wilful” is not used. The use of very different mens rea language in s. 229, as compared to the word “wilful” in s. 233, suggests that Parliament did not intend to equate the mens rea required for murder (s. 229) with the mens rea required for infanticide (s. 233). While the word “wilful” figures in any analysis of the mens rea for infanticide, I do not think that word alone is determinative of the mens rea required for infanticide.

[110] I also cannot accept that the comment by McLachlin J. in Creighton has determined the mens rea of infanticide. Creighton was a case about the mens rea of manslaughter and the constitutionality of that offence. McLachlin J. introduced her examination of the mens rea of manslaughter with this observation, at pp. 41-42:

The Criminal Code defines three general types of culpable homicide. There is murder, the intentional killing of another human being. There is infanticide, the intentional killing of a child. All other culpable homicides fall into the residual category of manslaughter.

[111] I cannot read the single sentence referable to infanticide in Creighton as a definitive and all encompassing description of the mens rea of that offence. The case had nothing to do with infanticide. I take the sentence to be merely an indication that an intentional killing of a child can be infanticide. That is not the same thing as saying that to constitute infanticide, the killing of the child must be intentional in the same way that murder must be intentional.

[112] The analysis of the mens rea requirement for manslaughter in Creighton at pp. 45-49 does, however, provides assistance as to the approach to be taken in determining the mens rea for infanticide. In considering whether foresight of bodily harm, the mens rea required for manslaughter, met constitutional standards, McLachlin J., for the majority, observed that the mens rea of an offence should reflect the gravity of the crime and the societal stigma attached to the commission of the particular crime. The penalties provided by Parliament afforded a measure of the gravity of an offence and the stigma associated with its commission. McLachlin J. concluded that as manslaughter, unlike murder, carried no mandatory sentence, a mens rea that did not require proof of intention was consistent with the gravity of the offence and the stigma attached to the commission of the offence by the community.

[113] The five-year potential maximum penalty for infanticide is far removed from the mandatory minimum life sentence for murder and is significantly less than even the maximum penalty of life imprisonment available for manslaughter. To the extent that the potential penalty provides insight into the requisite mens rea, the five-year maximum penalty for infanticide strongly suggests a mens rea closer to the manslaughter requirement of foresight of harm than to the murder requirement of an intention to kill or foresight of probable death.

[114] Considering the homicide provisions as a whole and the obvious hierarchy created by those provisions, I do not think that the infanticide provision can be read as requiring proof of the same mens rea as that required for murder. Instead, a mens rea for infanticide akin to that for manslaughter is much more consistent with the hierarchy of culpable homicides established in the Criminal Code. In my view, infanticide as a form of culpable homicide, should require the mens rea required for manslaughter. There is nothing inherent in the seriousness of the offence or the stigma attached to it which requires the imposition of a higher mens rea like that required for murder. That, of course, is not to say that a mother who intends to kill her child is, therefore, not guilty of infanticide. Clearly, a person who intends to kill foresees the risk of bodily harm to the child and, therefore, has the required mens rea for either manslaughter or infanticide.

[115] If infanticide was read as requiring proof of the same mens rea as murder, circumstances could produce anomalous results. For example, if infanticide requires the mens rea for murder, a mother who intends to kill her child but whose conduct comes within the meaning of infanticide would be convicted of infanticide, the least culpable form of culpable homicide. A second mother, whose conduct also comes within the meaning of infanticide, but who was so emotionally distraught as to be incapable of forming the intention for murder, could not be convicted of infanticide but would instead be convicted of manslaughter, a more serious offence. Surely, a mother who does not intend to kill her child should not be regarded as having committed a more culpable homicide than the mother who did have that intention. This anomaly disappears if the mens rea for infanticide captures both the mother who intends to kill and the mother who unlawfully assaults her child in circumstances where bodily harm to the child is foreseeable.

[116] There is a second, and I think significant, practical problem with treating the mens rea for infanticide as the same as that required for murder. Infanticide requires evidence that the mother’s mind was “disturbed” at the time of the homicide. Evidence proffered by the defence to meet the evidentiary burden on that issue will, in some cases, cast doubt on whether the mother intended to kill her child. If infanticide operates as a partial defence to murder only where the mens rea for murder exists, the very same evidence offered to bring the mother within the infanticide defence could push her outside of that defence by negating the intention to kill or the existence of foresight as to the likelihood of death. If the mens rea for infanticide is interpreted as including the mens rea required for murder or manslaughter, the defence is not put in the position of offering evidence of the mother’s mental state that could simultaneously support and undermine the infanticide defence.

[117] I think treating the mens rea for infanticide as reaching not only an intention to kill, but also objective foresight of bodily harm, provides a coherent and comprehensive reading of the homicide provisions that best reflects the relative seriousness of the three levels of culpable homicide created in the Criminal Code. This approach does give the word “wilful” a meaning that is somewhat inconsistent with its customary meaning. I am satisfied, however, that a coherent and workable reading of s. 233 in the context of the homicide provisions supports my interpretation of the word “wilful” in this context.

[118] Although I reach my conclusion as to the mens rea of infanticide based on the language of the present Criminal Code, I am fortified in that view by the language of the original provision in 1948 (Appendix B). Section 262(2) provided that a woman who committed what was defined as infanticide “shall be deemed not to have committed murder or manslaughter”. That section contemplated that infanticide, the new category of culpable homicide, would include homicides that had previously been murders or had previously been manslaughters. The intention to cover both is even clearer when one bears in mind that the Infanticide Act, 1922 in England referred only to homicides that “would have amounted to murder” in the provision creating infanticide.[12]

[119] Lastly, I draw support for my conclusion concerning the mens rea of infanticide from the recent decision of the English Court of Appeal in R. v. Gore, [2007] EWCA Crim 2789, the only appellate decision of which I am aware in this country or England that has addressed the mens rea of infanticide. The court’s interpretation focused on the words “wilful act or omission” and “notwithstanding that the circumstances were such that but for this act the offence would have amounted to murder” in s. 1(1) of the Infanticide Act, 1938. The court concluded, at paras. 33-34:

We are satisfied that Parliament intended to create a new offence of infanticide which covered situations much wider than offences that would otherwise be murder. If the criteria in subsection (1) [Infanticide Act, 1938] are fulfilled, the mother who kills her child does not have to face an indictment for murder. She faces a lower grade criminal charge, namely infanticide.

The mens rea for the offence of infanticide is contained, as we see it, explicitly in the first few words of section 1(1), namely the prosecution must prove that the defendant acted or omitted to act wilfully. There is no reference to any intention to kill or cause serious bodily harm. [Emphasis added.]

[120] In his case comment on Gore, Professor Ashworth suggests that while the mens rea of infanticide had seldom been discussed in England, the assumption had been that it mirrored the mens rea for murder. Professor Ashworth describes the Court of Appeal’s interpretation as “a benevolent and desirable interpretation”. He posits the rhetorical question “why should the mother whose offence would otherwise be unlawful act manslaughter not have the benefit of the infanticide offence?”: see A. Ashworth, “Infanticide: Whether Mens Rea of Infanticide Consists of an Intention to Kill or Cause Grievous Bodily Harm” (2008) 5 Crim. L. R. 388, at pp. 390-91.[13]

[121] For the reasons set out above, I do not think that the mens rea for infanticide can be equated with the mens rea for murder. In my view, to prove infanticide, the Crown must establish the mens rea associated with the unlawful act that caused the child’s death and objective foreseeability of the risk of bodily harm to the child from that assault. On this approach, it is the unique actus reus of infanticide that distinguishes it from murder and manslaughter. Those distinctions are what caused Parliament to treat infanticide as a culpable homicide, but one that was significantly less culpable than murder and even manslaughter. The presence of the mens rea for murder, while not negating the partial defence of infanticide, is not a condition precedent to the existence of that partial defence.

(b) The Onus of Proof

[122] The trial judge, having determined that infanticide was a partial defence to murder akin to provocation, went on to hold at para. 49:

[A]n accused person who seeks to rely on the defence of infanticide must bear the burden of proving its elements on a balance of probabilities (just as an accused who seeks to rely on s. 16 or automatism, or extreme intoxication must do) and accordingly, in my analysis, I will require the accused in the case at bar to do so.

[123] Although the trial judge referred to the “elements” of infanticide, I think it is clear that he was referring to the mental disorder component of the defence and not to all elements of infanticide.

[124] It is important to stress that the trial judge was addressing onus in the context of infanticide as a partial defence and not in the context of infanticide as a stand alone charge. The onus of proof where infanticide is charged raises different questions in light of s. 663. Those questions do not arise on this appeal. Like the trial judge, my reasons address the onus exclusively in reference to the partial defence of infanticide.

[125] The presumption of innocence, constitutionally protected by s. 11(d) of the Canadian Charter of Rights and Freedoms, requires that the Crown prove the essential elements of the crime alleged beyond a reasonable doubt. It also requires that the Crown negate potential defences to the same standard of proof: see R. v. Whyte, [1988] 2 S.C.R. 3, at p. 18; R. v. Keegstra, [1990] 3 S.C.R. 697, at pp. 789-90; R. v. Wholesale Travel Group, [1991] 3 S.C.R. 154, at pp. 195-97. Thus, for example, on a murder charge where there is evidence of provocation, s. 11(d) requires both that the Crown prove the essential elements of murder beyond a reasonable doubt and that it prove beyond a reasonable doubt that the defence of provocation is not available. To negate the defence of provocation, the Crown must prove beyond a reasonable doubt that at least one of the constituent elements of the defence is not available on the evidence: D. Stuart, Canadian Criminal Law: A Treatise, 5th ed. (Scarborough: Thomson Carswell, 2007), at pp. 570-71; R. v. Tran, 2010 SCC 58, at para. 81.

[126] As the trial judge appreciated, any deviation from the requirement that the Crown bear the burden of proof is a prima facie violation of s. 11(d), and is constitutional only if justified under s. 1 of the Charter which provides:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[127] Placing the burden on the accused to establish infanticide can pass constitutional scrutiny only if the reallocation of the burden is “prescribed by law”. The trial judge did not address this issue.

[128] In R. v. Effert (2009), 244 C.C.C. (3d) 510 (Alta. Q.B.), Veit J. declined to follow the trial judge’s ruling in this case and held that the Crown bore the burden to disprove the partial defence of infanticide. In her analysis (paras. 13-18), she doubted whether a judge-made requirement that the accused establish the necessary disturbance of the mind on the balance of probabilities could be said to be a limit on the presumption of innocence “prescribed by law”. I share her doubts.[14]

[129] A limit on a Charter right may be found in a statute or other legislative instrument either expressly or by necessary implication: R. v. Swain, [1991] 1 S.C.R. 933, at p. 968; R. v. Thomsen, [1988] 1 S.C.R. 640, at pp. 650-55. The infanticide provisions do not contain any express reversal of the burden of proof or otherwise purport to limit the application of s. 11(d) of the Charter. Nor can any limit be read by necessary implication into any statutory provision relevant to infanticide. Section 16(4), which reverses the onus where an accused raises an “insanity” defence, has no application to infanticide. As Veit J. explains, infanticide is “sui generis” and cannot be viewed as a variation on the mental disorder requirement of the “insanity” defence: Effert, at para. 17. The reversal of the burden where “insanity” is raised does not imply anything about the appropriate burden where infanticide is raised.

[130] A s. 1 limit on a constitutional right may also “result from the application of the common law”: R. v. Therens, [1985] 1 S.C.R. 613, at p. 645. Potential common law limits on Charter rights must be approached cautiously, particularly where the common law limit is created post-Charter. A cautious approach is dictated because judge-made common law limitations are not the product of the same considered and public weighing and balancing of competing interests and values that should be reflected in legislative provisions limiting constitutional rights.

[131] I find it particularly difficult to resort to the common law to overlay a constitutional limit on what is a statutory defence. I would have thought that if a reversal of the onus in relation to the partial defence of infanticide was viewed as a justifiable limit on the presumption of innocence, Parliament would have taken steps to write that limit into the statutory defence. To analogize to the caution sounded by Binnie J., speaking in dissent, in R. v. Stone, [1999] 2 S.C.R. 290, at para. 50, a court should not organize its own s. 1 justification for a Charter violation where Parliament in crafting a statutory defence did not see fit to create one.

[132] R. v. Daviault, [1994] 3 S.C.R. 63, at pp. 101-102, and Stone, at paras. 179-82, are two cases in which the courts saw fit to interpret the common law as imposing a justifiable limit on s. 11(d). However, neither case involved a limit on a statutorily created defence. Both were cases in which the courts were addressing issues, the voluntariness component of the actus reus and mens rea of crimes, that have traditionally been shaped by judicial interpretation and not Parliamentary pronouncement. Even then, as the powerful dissent of Binnie J. in Stone demonstrates, judicially created limits on something as fundamental as the presumption of innocence are not easy to justify.

[133] Even if the court could invoke the common law to limit the presumption of innocence as it applies to the statutory defence of infanticide, I see no justification for doing so. My research reveals that in every jurisdiction in which the partial defence of infanticide is recognized, neither the legislature nor the courts have seen fit to relieve the Crown of its customary burden of proof. There is no suggestion in the case law or commentary from those jurisdictions that bearing the burden of proof has posed a difficult, much less insurmountable, burden for the Crown. Indeed, I do not understand the Crown on this appeal to have argued that it cannot realistically be expected to meet the customary burden of proof where the defence of infanticide is in play.

[134] No doubt if the defence advances infanticide as a partial defence to murder and the Crown resists that defence, the Crown may have a difficult task in establishing beyond a reasonable doubt that the mother’s mind was not "disturbed" in the sense required for the infanticide defence. That problem arises whenever the Crown must prove or disprove a certain state of mind. It should not be viewed as an impediment to the conviction of the accused, but rather as a reflection of the premium placed on individual freedom, the value underlying the constitutional right to be presumed innocent.

[135] In any event, as observed by Veit J. in Effert, at para. 20, any disadvantage potentially suffered by the Crown is largely overcome where the court makes an assessment order under s. 672.11(c) and the accused cooperates in that assessment. The respondent cooperated with the assessment order made in this case, and Dr. Klassen who did the assessment was able to provide a detailed report and give valuable evidence at the trial.

[136] Where an accused advances an infanticide defence to a murder charge, I am satisfied there will be ample evidence available of the circumstances surrounding the child’s death and the mother’s mental condition at the time to permit a full inquiry at trial into that mental condition. A trial judge has various means available to him or her to ensure that the Crown has a full opportunity to challenge any defence evidence offered and to advance its own evidence on the infanticide issue. Certainly, the evidence adduced in this case does not suggest that the Crown had any difficulty fully litigating the question of whether the respondent’s killing of her children was infanticide or murder.

[137] I see no justification for limiting the respondent’s constitutional right to be presumed innocent of the charge of murder. Assuming a sufficient evidentiary basis to give the infanticide claim an air of reality, the respondent was entitled to be acquitted on the murder charge and convicted of the included offence of infanticide unless the Crown could negate the defence of infanticide beyond a reasonable doubt.

(c) The Approach to Be Taken Where Infanticide Is Raised as a Defence

[138] Resolution of the issues raised on this appeal allows me to set out the approach that should be taken when infanticide is advanced as a defence to murder. As the vast majority of murder cases involve trials by jury, I will set out the appropriate approach in the context of a jury trial where the accused is charged with first degree murder.

[139] Like any defence, infanticide is put to the jury only if there is sufficient evidence to give that defence an air of reality. If the defence goes to the jury, instructions along the following line should be given:

· The jury should first decide whether the Crown has proved beyond a reasonable doubt that the accused caused the child's death. If the Crown has failed to do so, the accused must be acquitted.

· If the Crown proves causation, the jury next decides whether the Crown has proved beyond a reasonable doubt that in causing the child’s death the accused committed culpable homicide as defined in s. 225. This will most often involve proving that the accused committed an unlawful act. The unlawful act will usually be an assault. If the Crown fails to prove a culpable homicide, the accused must be acquitted.

· If the Crown proves that the accused committed a culpable homicide, the jury must then decide the nature of the culpable homicide. The jury should be told to consider infanticide first. If the Crown fails to negate at least one of the elements of infanticide beyond a reasonable doubt, the jury should be instructed to return a verdict of not guilty of murder, but guilty of infanticide.

· If the Crown does negate infanticide, the jury should be told to go on and consider whether the Crown has proved murder. If the Crown proves murder, then the jury should be instructed to determine whether the murder is first or second degree murder.

· If the Crown fails to prove murder, the jury should be instructed to return a verdict of not guilty of murder, but guilty of manslaughter.

[140] Applying the approach outlined above to the facts of this case, it was conceded that the respondent caused her children’s deaths and that in doing so she committed a culpable homicide. Those concessions take one to the point where the culpable homicide must be categorized. The trial judge found on the balance of probabilities that the respondent met the criteria for infanticide in respect of both homicides. That finding negated any argument that the Crown had proven beyond a reasonable doubt that at least one of the elements of infanticide was not present. The trial judge, therefore, returned the proper verdicts – not guilty of murder but guilty of infanticide.

VII

Conclusion

[141] I would dismiss the appeal.

RELEASED: “DD” “MAR 2 2011”

“Doherty J.A.”

“I agree M.J. Moldaver J.A.”

“I agree E.A. Cronk J.A.”

[1] There is, however, a significant body of helpful recent Canadian academic commentary: e.g. see E. Cunliffe, “Infanticide: Legislative History and Current Questions” (2009) 55 Crim. L.Q. 94; I. Grant, “Desperate Measures: Rationalizing the Crime of Infanticide” (2010) 14 Can. Crim. L. Rev. 253; S. Anand, “Rationalizing Infanticide: A Medico-Legal Assessment of the Criminal Code’s Child Homicide Offence” (2010) 47 Alta. L. Rev. 705; G. Fitch, “Infanticide” (Paper presented to the National Criminal Law Program: Substantive Criminal Law, Halifax, Nova Scotia, July 2004) Federation of Law Societies of Canada, 2004, section 11.5; K.J. Kramar, Unwilling Mothers, Unwanted Babies: Infanticide in Canada (Vancouver: UBC Press, 2005).

[2] Crown counsel seeks only a new trial and not convictions because the defence strategy at trial, including admissions made by the defence, was predicated on the availability of infanticide as a partial defence to murder. Counsel accepts that if she convinces this court that infanticide is not a partial defence, L.B. should have an opportunity to defend the murder allegations with the knowledge that infanticide is not a partial defence.

[3] I would note, however, that the Crown’s argument that the partial defence of infanticide is inconsistent with other defences, such as duress, fails to take into account that infanticide does not excuse or justify what would otherwise be criminal conduct. It simply declares the conduct to be a separate and less culpable crime than murder. If there is a comparable defence, it must be provocation.

[4] Professor R. Sullivan, in her valuable text, traces Professor Driedger’s “modern principle” to his first edition: R. Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008), at pp. 1-21. Driedger’s “modern principle” has been repeatedly referred to and relied on in judgments of the Supreme Court of Canada: e.g. see R. v. Gladue, [1999] 1 S.C.R. 688, at para. 25; Re Rizzo & Rizzo Shoes Ltd., at para. 21; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, at para. 26.

[5] The impact of the English legislation is also evident in the infanticide provisions in effect in New Zealand and some of the Australian states: e.g. see Crimes Act (N.Z. ) 1961/43, s. 178; Criminal Code Act 1924 (Tas.), s. 165A; Crimes Act 1900 (N.S.W.), s. 22A; Crimes Act 1958 (Vic.), s. 6, as am. by Crimes (Homicide) Act 2005 (Vic.), s. 5.

[6] I avoid any exploration of why late nineteenth and early twentieth century judges and juries saw infanticide as substantially less blameworthy than other murders. Various explanations are discussed by various commentators. That discussion, while thought provoking, does not impact on my interpretation of the statutes: e.g. see J. A. Osborne, “The Crime of Infanticide: Throwing Out the Baby with the Bathwater” (1987) 6 Can. J. Fam. L. 47; K. O’Donovan “The Medicalisation of Infanticide” (1984) Crim. L. R. 259; C. Backhouse, “Desperate Women and Compassionate Courts: Infanticide in Nineteenth-Century Canada” (1984) 34 U. Toronto L.J. 447; and K.J. Kramar, Unwilling Mothers, Unwanted Babies: Infanticide in Canada (Vancouver: UBC Press, 2005).

[7] It has been suggested that the inclusion of the effect of lactation, apparently always of doubtful medical validity, was an attempt to expand the availability of infanticide beyond child homicides involving babies who were only a few hours or days old: see New South Wales Law Reform Commission, Partial Defences to Murder: Provocation and Infanticide (Report 83) (Sydney: New South Wales Law Reform Commission, 1997), at para. 3.31.

[8] This reversal of onus did spark a discussion in the House of Commons: House of Commons Debates, 1953-54, Vol. III (March 10, 1954), at pp. 2864-66.

[9] R. v. Effert (0903-0192A) is presently pending before the Alberta Court of Appeal. In that case, the accused was charged with murder and advanced an infanticide “defence”. She was convicted of murder and the Alberta Court of Appeal ordered a new trial: R. v. Effert, 2007 ABCA 284. The accused was convicted of murder a second time and her second appeal is now pending hearing in the Alberta Court of Appeal. As I read the various trial judgments reported, the endorsement of the Alberta Court of Appeal on the first appeal, and the facta that have been filed on the second appeal, the Crown has never questioned the availability of infanticide as a partial defence to a murder charge: see R. v .Effert (2009), 244 C.C.C. (3d) 510 (Alta. Q.B.), at para. 1.

[10] Infanticide had been considered by a number of law commissions in the Australian states, as well as the Law Commission in England. The Victorian Law Reform Commission first examined the issue of infanticide in Mental Malfunction and Criminal Responsibility (Report No. 34) (Melbourne: Victorian Law Reform Commission, 1990). The issue was considered again in Defences to Homicide: Final Report (Melbourne: Victorian Law Reform Commission, 2004). In both reports, the Victorian Law Reform Commission recommended that infanticide be retained as an offence and as a partial defence. However, in its 2004 report, the Commission recommended that the reference to lactation be removed and the age limit of the child be raised to two years (pp. 266-67). The law in Victoria was changed in accordance with these recommendations in 2005: Crimes (Homicide) Act 2005 (Vic), s. 5. This “minimal reform” approach was provisionally recommended by the Law Reform Commission in England in A New Homicide Act for England and Wales? A Consultation Paper (Consultation Paper No. 177) (London: Law Commission, 2005), at paras. 9.75-9.78. However, in its final report, Murder, Manslaughter and Infanticide (Law Com. No. 304) (London: Law Commission, 2006), at para. 8.23, the Law Commission recommended that the “offence/defence” of infanticide be retained in England without amendment.

Conversely, the Law Reform Commission of Western Australia recommended that the infanticide provisions be repealed in Western Australia in its Review of the Law of Homicide (Final Report Project 97) (Perth: Law Reform Commission of Western Australia, 2007), at pp. 114-17. The infanticide provisions were repealed in Western Australia in 2008: Criminal Law Amendment (Homicide) Act 2008 (W.A.), s. 13. The New South Wales Law Reform Commission has also recommended that its state’s infanticide provisions be repealed in Partial Defences to Murder: Provocation and Infanticide (Report 83) (Sydney: New South Wales Law Reform Commission, 1997), at para. 3.14. However, this recommendation was conditional on there being a defence of diminished responsibility available in some form in New South Wales. The infanticide provisions in New South Wales have not been repealed.

In October 2004, the Law Commission of New Zealand was directed to review criminal defences including infanticide. Thus far, however, the Law Commission has restricted its review to the defence of insanity and has yet to address the issue of infanticide.

[11] The academic commentary and the limited case law calls to mind Lord Devlin’s famous observation, “Cases relating to mens rea as an element in crime live in a shambles from which academic writers try to rescue them.” See P. Devlin, The Judge (Oxford: Oxford University Press, 1979), at p. 186.

[12] The very recent English amendments (Appendix “A1”) have in effect borrowed the language of the 1948 Canadian provision to make it clear that infanticide reaches homicides that would otherwise be murder or manslaughter.

[13] The recent English amendments (Appendix “A1”) confirm the mens rea analysis in Gore by making it clear that infanticide applies to homicides that would otherwise be murder or manslaughter.

[14] As indicated in footnote 9 above, Effert is on appeal to the Alberta Court of Appeal. My review of the facta indicates that the onus of proof is not an issue on the appeal.

* A definition of “newly-born” was added in 1954. Section 2(27) of the 1953-54 Criminal Code provides, “’newly-born child’ means a person under the age of one year”. The same definition is provided in s. 2 of the current Criminal Code.