Infanticide a defence to charge of murder

L.B. was charged with two counts of first degree murder arising out of separate incidents resulting in the deaths of two of her infant children.

After a trial in the Superior Court of Justice, she was acquitted of the two charges but convicted of infanticide in relation to the death of each child.

R. v. L.B., 2011 ONCA 153 examines the infanticide provisions of the Criminal Code and concludes infanticide is a defence to murder and if a culpable homicide otherwise being murder falls within the definition of infanticide then the defence applies and conviction only for infanticide follows.

The Court holds:

[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.
...

[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.