What does 'child' mean? A significant Court of Appeal decision with broader implications

R v Levkovic, 2010 ONCA 830, released today online, deals with a prosecution for concealing the body of a dead child. As a result of the way the case was presented at trial it became necessary to consider how "child" is defined in the phrase "died before ... birth".

The potential importance of the decision is obvious.

The Court held that the standard set forth in R v Berriman (1854), 6 Cox C C 388 applied. Berriman held a foetus is a "child" if it had a "chance of life" or was viable. When Berriman was decided the Court suggested that time was about 7 months -- today of course one could argue a much earlier time of viability.

The Court holds:

[78]          To provide meaning for the term "child" as it is used in "the child died before … birth" in s. 243 the prosecutor invoked the standard articulated by Erle J. in his charge to the jury in Berriman. 

[79]          In Berriman rumours were afloat in Ms. Berriman's neighbourhood that she had given birth to a child. What fuelled the suspicion, apparently, was Ms. Berriman's gradual enlargement, followed by a sudden recovery of "her usual form".  A police officer paid a visit to Ms. Berriman, confronted her about her recent delivery and suggested that she had either murdered or concealed the birth of her child. Berriman's response formed a substantial part of the prosecutor's case against her, along with evidence about recovery of some calcined bones of a child of seven to nine months gestation. 

[80]          Erle J. left the case to the jury, instructing them in these terms:

            This offence cannot be committed unless the child had arrived at that stage of maturity at the time of birth, that it might have been a living child. It is not necessary that it should have been born alive, but it must have reached a period when, but for some accidental circumstances, such as disease on the part of itself or of its mother, it might have been born alive.  There is no law which compels a women to proclaim her own want to chastity, and if she had miscarried at a time when the foetus was but a few months old, and therefore could have had no chance of life, you could not convict her upon this charge. No specific limit can be assigned to the period when the chance of life begins, but it may, perhaps, be safely assumed that under seven months the great probably is that the child would not be born alive.

Berriman at p. 390.

[81]          In Berriman's case, as under s. 243, the offence can be committed even if the child was not born alive. To determine whether a child not born alive comes within the prohibition, Berriman postulates a "chance of life" standard.  Without a chance of life, a foetus would not be a "child".  Erle J. rejected any specific limit at which a chance of life begins, but considered it a safe assumption that "under seven months the great probably [sic] is that the child would not be born alive".

...

[112]      The Criminal Code declares when a child becomes a human being. When a child has completely proceeded, in a living state, from the body of its mother, the child becomes a human being for the purposes of the Criminal Code.  It is of no consequence for Criminal Code purposes whether the child has breathed, has an independent circulation, or remains attached to the navel string. This transition into a human being is of signal importance for the law of homicide.  But for the first year of life, at least so far as the Criminal Code is concerned, the new "human being" remains a child, a "newly-born child".

[113]      The Criminal Code offers no assistance about the meaning of "child" otherwise than in the transition from child to human being.  In other words, the Criminal Code does not help us about when a foetus becomes a child for the purpose of determining whether certain conduct involving the child will attract criminal liability.

[114]      The test that Berriman proposes, a chance of life standard, marks the outer boundary of when a foetus becomes a child for the purpose of the concealment offence at common law. Under Berriman, for a foetus to become a child, the foetus must have reached a period when, but for some accidental circumstances, such as disease, it might have been born alive.  The standard is one of viability.  Under Berriman a foetus becomes a child when it reaches a stage in its development from which it might grow into a human being, given proper care.

[115]      For the purposes of establishing liability for an offence under s. 243 in cases involving death before birth or those in which the time of death in relation to birth is unclear, a foetus becomes a child when it (the foetus) has reached a stage in its development when, but for some external event or other circumstances, it would likely have been born alive.