We've moved on

James Morton, National Post
Monday, Dec. 20, 2010

On April 5, 2006, an apartment building superintendent in Mississauga was cleaning a recently vacated apartment unit when he noticed an abandoned bag on the balcony. The superintendent felt something inside the bag, so he opened it and looked. Wrapped in towels was the lifeless body of a "baby." He called the police. The body was that of a female at or near full-term gestation.

A few days later, after extensive media coverage of the superintendent's discovery, Ivana L went to the police and said the child was hers. She said she'd had an accident and given birth, but the child was stillborn. Ms. L was charged with disposing of the dead body of a child with the intent to conceal having given birth.

The Criminal Code provides: "Every one who in any manner disposes of the dead body of a child, with intent to conceal the fact that its mother has been delivered of it, whether the child died before, during or after birth, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years."

The focus of the section is not on the disposition of the body but on the intent "to conceal the fact that its mother has been delivered of it." And that focus is very odd.

Abortion, even where undertaking for the very purpose of concealing a pregnancy, is completely unregulated by the criminal law in Canada. Mistreating a dead body is covered by another section of the Criminal Code which makes it an offence to offer an indignity to a dead body or to fail to properly dispose of human remains. Infanticide is a prohibited by yet another section of the Criminal Code. The section on disposing of the dead body of a child is not intended to limit abortion or promote the dignified disposal of human remains or to prohibit infanticide--the section is directed to
punishing someone who takes steps to conceal a delivery even where the child is born dead.

The intent required is quite specific. The prosecutor must prove that in disposing of the dead body of a child, the accused intended to conceal the fact that the child's mother had been delivered of the child. Again, seeing as abortion is completely unrestricted throughout pregnancy, punishing a person for an attempt to conceal a pregnancy is odd; the section reeks of a Canada where hidden pregnancy was common and women were ruined by unwed motherhood. That is not Canada today. About one third of all births in Canada now are to unwed mothers and the "stigma" of illegitimacy is functionally nonexistent. Criminalizing the concealment of childbirth make no sense in contemporary Canada.

Nevertheless, the prohibition on concealing the dead body of a child remains, and in Ms. L's case the Court of Appeal had to determine how it was to be applied. The key question for the Court was how can a "child [who] died before ... birth" be considered a child? The issue of intent to conceal giving birth was not dealt with except in passing.

This month, the Court of Appeal concluded a child who died before birth means a fetus that could have been viable. The Court settled on a "chance of life" standard. If the fetus could have survived then the fetus is a child for this section. Of course, with advances in medicine, the date of viability gets earlier and earlier. It is clear that "child" as defined by Ms. L's case differs from "child" in other areas of the law.

The Court of Appeal's decision does give a sensible interpretation to the prohibition on concealing the body of a child as set out in the Criminal Code. As a purely legal matter the Court of Appeal was right. But the decision upholds criminal legislation that has not made sense in Canada for at least a generation. This highlights a bigger problem.

Canada's Criminal Code dates from the 1890s. It contains provisions that have been declared unconstitutional but have never been repealed (e. g., abortion and sodomy) and sections that, while perhaps constitutional, are wildly inappropriate in modern times (e. g., blasphemous libel). Successive federal governments, both Liberal and Conservative, have amended the Criminal Code extensively, but generally only by adding provisions. The result is that today's code resembles a cottage where the original building remains, but is surrounded by ungainly and awkward additions. The courts cannot revise the Criminal Code; that is a job for Parliament. Ms. L's case makes clear that it is time for the government to act.

-James Morton is a Toronto lawyer who teaches at Osgoode Hall Law School of York University. He is past president of the Ontario Bar Association. The views expressed are solely his own.