Law Times

Page 12 December 14, 2015 • Law Times www.lawtimesnews.com Supreme Court to tackle infanticide Borowiec case examines 60-year-old law and 'disturbed mind' BY SHANNON KARI For Law Times early five years aer the Supreme Court of Canada declined to grant leave in an Ontario ruling about the law that governs infanticide, the issue is now heading to the top court. A Crown appeal as of right will be heard next month in an Alberta case involving a young woman who was convicted in the deaths of two of her children. e trial judge and a majority of the Alberta Court of Appeal agreed that Meredith Borowiec should be found guilty of infan- ticide in the deaths, which carries a maximum sentence of five years in prison. A dissenting judge would have ordered a new trial on two counts of second-degree murder. e Alberta Crown is ask- ing the Supreme Court to define the concept of "disturbed mind," which is part of the provisions re- lated to infanticide. "To date, courts have been un- able or unwilling to define the concept of mental disturbance, preferring to leave the matter to Parliament," said Crown attor- neys Julie Morgan and Joanne Dartana in written arguments. "If any kind of disturbance, however slight, arising from the cause of birth, would meet the requirement for infanticide, a biological mother would almost never be convicted of murder for intentionally killing her child within a year of birth," they wrote. A mother's psychological health must be "substantially com- promised" at the time she caused the death of her newborn for there to be a finding of a disturbed mind, the Alberta Crown argues. Infanticide is both a partial de- fence to murder and an offence. e Criminal Code sections that govern this act have not been amended since 1954. In a ruling in early 2011 in R v. L.B., the On- tario Court of Appeal noted that there was no prior appellate level decision that had examined these provisions in any detail. e decision in L.B., written by Justice David Doherty, with justices Michael Moldaver and Eleanore Cronk concurring, up- held infanticide convictions for the young woman and explained how trial judges should address this issue. "A trial judge has various means available to him or her to ensure that the Crown has a full oppor- tunity to challenge any defence evidence offered and to advance its own evidence on the infanticide is- sue," wrote Doherty. Infanticide should be put to the trier of fact only if there is an "air of reality" to the defence. Once it has been shown that there is an air of reality, unless the Crown can ne- gate the defence beyond a reason- able doubt, there is no reason to deny an accused the constitutional right to be presumed innocent of murder, stated Doherty. Tim Breen, a Toronto defence lawyer who represented L.B. at the Court of Appeal, says the Alberta Crown is effectively asking for the Supreme Court to engage in judi- cial activism. "e recognition of a thresh- old level of mental disturbance for the operation of the 'defence' of infanticide amounts to a judicial amendment of the statute, reading in a requirement of evidence of the existence of a causal relationship between the mental disorder and the homicide," says Breen. "is is nothing more than an invitation to the courts to legislate," he adds. e SCC did not grant leave when the Crown sought to appeal the decision in L.B. Isabel Grant, a law professor at the University of British Colum- bia who has written extensively on the law of infanticide, agrees with Breen about the position of the Alberta Crown. "It is saying, we are not happy with the Criminal Code definition, so we want a new one," says Grant. She stresses that any infanticide case is challenging, "with a number of factors at play" to try to under- stand the mother's actions. "It is very difficult to ask a court to come up with a sentence that will define infanticide," says Grant. e majority of the Alberta Court of Appeal in Borowiec ad- opted the reasoning of their On- tario colleagues in upholding the trial judge's decision to convict the defendant of infanticide. e Criminal Code provi- sions were a "social and prag- matic" decision by Parliament, wrote Justices Jean Cote and Bruce McDonald of the Alberta Court of Appeal. "e aim was to leave these cases to juries (or trial judges sitting alone), not to ap- peal courts," they wrote. e Alberta Crown is urg- ing the Supreme Court to accept the analysis in the dissenting decision from Justice omas Wakeling, who was elevated to the Court of Appeal in 2014, one year aer he was appointed to the Court of Queen's Bench. Parliament would not have needed to enact the offence of in- fanticide at the time it did, except that the death penalty existed and jurors were reluctant to convict young mothers of murder, said Wakeling in his dissent. To conclude a mother meets the test of a disturbed mind, Wakeling said two traits must be necessary: "Her psychological health must be substantially compromised so that it can be classified as an abnormal mental health state." As well, the condition "must substantially impair the mother's ability to make rational decisions which promote the best interests of her infant," he wrote. Written arguments on behalf of Borowiec have not yet been filed with the Supreme Court. Her lawyer was unavailable for comment. LT FOCUS N It is very difficult to ask a court to come up with a sentence that will define infanticide. Isabel Grant E V E N T S For more information, please contact Lexpert® Events at 1-877-298-5868 or e-mail: register@lexpert.ca 8TH ANNUAL ADVERTISING AND MARKETING LAW: LESS IS THE NEW MORE Brenda Pritchard, Gowling Lafleur Henderson LLP 8TH ANNUAL CORPORATE GOVERNANCE: OPPORTUNITIES IN A CHANGING LANDSCAPE Walied Soliman and Orestes Pasparakis, Norton Rose Fulbright Canada LLP 7TH ANNUAL ABORIGINAL LAW: CONSULTATION AND OTHER EMERGING ISSUES Thomas Isaac, Osler, Hoskin & Harcourt LLP 7TH ANNUAL DEALING WITH THE LEASE: WHAT'S NEXT? THE FUTURE IS NOW Stephen J. Messinger, Minden Gross LLP 7TH ANNUAL INFORMATION PRIVACY AND DATA PROTECTION David Young, David Young Law Kelly Friedman, DLA Piper (Canada) LLP 6TH ANNUAL NEW PROCUREMENT: CRITICAL ADVANCES FROM PROCESS TO PRACTICE Richard H. Shaban, Gerry Stobo, Ian J. Houston, Borden Ladner Gervais LLP 4TH ANNUAL ANTI- BRIBERY AND CORRUPTION COMPLIANCE: COPING WITH THE ONSLAUGHT John Boscariol, McCarthy Tétrault LLP 3RD ANNUAL CONDUCTING EFFECTIVE WORKPLACE INVESTIGATIONS: JUST THE FACTS Sarah Graves, Fasken Martineau DuMoulin LLP DANGERS FOR DIRECTORS – INFINITE RISKS Aaron Emes & Stephanie Stimpson, Torys LLP MANAGING REGULATORY RISKS: COMPLIANCE, INSPECTIONS AND INVESTIGATIONS Joan Young, McMillan LLP MANAGING CYBERSECURITY RISK 2015 Brian Bourne, New Signature Canada and Lisa R. Lifshitz, Torkin Manes LLP EXECUTIVE PROFESSIONAL DEVELOPMENT ON-DEMAND PROGRAMS REGISTER ONLINE www.lexpert.ca/cpdcentre • $ 595 each Untitled-1 1 2015-12-10 9:06 AM THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES NEW EDITION Perfectbound Published December each year On subscription $80 One time purchase $83 L88804-764 Multiple copy discounts available Plus applicable taxes and shipping & handling. (prices subject to change without notice) Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. More detail and a wider scope of legal contact information for Ontario than any other source: • Over 27,000 lawyers listed • Over MBXȮSNTBOEDPSQPSBUFPGȮDFTMJTUFE • 'BYBOEUFMFQIPOFOVNCFSTFNBJMBEESFTTFTPGȮDFMPDBUJPOTBOEQPTUBMDPEFT Includes lists of: • Federal and provincial judges • Federal courts, including a section for federal government departments, boards and commissions • Ontario courts and services, including a section for provincial government ministries, boards and commissions • Small claims courts • The Institute of Law Clerks of Ontario • Miscellaneous services for lawyers ORDER YOUR COPY TODAY! Untitled-1.indd 1 2015-10-29 11:51 AM

• Cover