Decision in ‘Baby on the Balcony’ case

I haven’t been able to read the decision for myself yet but I hope to get to it Monday morning. But the fact is that the Supreme Court of Canada chose not to address the issue of when human life begins.

Despite her lawyers arguing otherwise, the Supreme Court ruled that the section of the Criminal Code under which Ms. Levkovic had been charged, the section that makes it illegal to conceal the body of a dead child, is in fact constitutional. They ordered a new trial where she’ll face charges for that crime.

I’ve included some snippets of the media coverage which further explain the decision. The National Post summarized the facts of the case:

Levkovic said she was alone in her Mississauga, Ont., apartment in the spring of 2006 when she fell and delivered a baby girl, which was later determined to have been at or near full term.

She placed the child’s body in a plastic bag and put it out on her balcony, where a building superintendent later discovered it.

Levkovic was charged under a section of the Criminal Code that makes it a crime to dispose of the body of a dead child to conceal the fact it had been born.

The law applies to babies that die “before, during or after birth.”

Here’s more from Charlie Gillis at Maclean’s:

Levkovic’s lawyers argued at trial that the co-existence words “child” and “before” in this context are problematic. Since the 1988 Morgentaler decision, the court has resolutely refused to recognize an unborn fetus as a person with rights that might compete against those of its mother. In Levkovic’s case, medical investigators couldn’t say for sure whether the baby had died before, during or after birth.

So, Levkovic’s lawyers argued, the legislation is unconstitutionally vague: if Levkovic’s baby died before birth, then what they were talking about was a “failed pregnancy” and, under Canadian case law, women have an exclusive right to decide whether to disclose a failed pregnancy.

The trial judge agreed, striking the word “before” from the legislation in a move that ultimately led to Levkovic’s acquittal. But that finding was overturned by the Ontario Court of Appeal.

The Supreme Court of Canada agree with the Ontario Court of Appeal and ruled that the section was not vague. It stated that “[i]n its application to a child that died before birth, it only captures the disposal of the remains of children that were likely to be born alive” and that a “conviction will only lie where the Crown proves that the child, to the knowledge of the accused, was likely to have been born alive.”

Gillis explains further…

Today, the Supreme Court found a way to uphold human decency without creating new rights for the fetus (I acknowledge the clanging contradiction of that statement to the ears of anti-abortionists). Sec. 243 is just fine, the high court ruled, because “it is focused on the event of birth;” if the accused knows that child is “likely to be born alive,” then the provision applies.

So it all hangs on what the accused knows about the state of her child, which in most cases will turn on medical evidence. In Levkovic’s case, medical evidence concluded the child was born “at or near to term.” Her case will now go back for a new trial.

…and closes his article with a reasonable question.

I wouldn’t call this a brave decision. Really, it’s an exercise in minimalism, which side-steps the big questions this miserable case raises: at what point during gestation is a fetus worthy of any protection whatsoever? Never? Is it really an attack on the hard-won abortion rights of women to even acknowledge some level of moral obligation of society to the just-about-to-be-born?

The Supreme Court has side-stepped a few issues as of late. I saw it most memorably in the S.L. v. Commission scolaire Dechenes case (Google it if you’re interested).

I don’t want to comment on whether or not it was a good thing for the pro-life cause in this case until I read the decision but if you’re interested in reading the decision for yourself, here it is. It’s really short.

Remember that it was during the hearing of this case that justices of the Supreme Court of Canada referred to unborn children as “this, um, dead, um, whatever”:

Levkovic was charged under Section 243 of the Criminal Code, which forbids concealing the body of an infant “whether the child died before, during or after birth.” But pathologists were unable to determine whether Levkovic’s baby was born alive or dead, and under Canadian case law, a child has no legal rights before it has emerged from the womb. By using words like “child,” “baby” or “girl,” therefore, the judges could be implying humanity on the part of the deceased. They’d also be undermining Levkovic’s defence: if an unborn child has no right to legal protection, her lawyers had reasoned, how could the law stand?

Thus began a kind of linguistic minuet, as the judges reached for acceptable nomenclature for a hypothetical baby that the law might not regard as a person. McLachlin tried “object” and “being” and, at one cringeworthy point, referred to it as “this, um, dead, um, whatever.” Her colleagues didn’t fare much better. During a discussion of the applicability of mens rea, Justice Michael Moldaver, a former criminal lawyer who joined the court one year ago, referred to the infant in such cases as “the thing.”

Not, in short, the Supremes’ finest hour.

No, it was not.

What were the justices options? They faced a legal status quo that allows abortion for any and every reason and their own previous decisions that state that the child in the womb has no legal rights.To call it a child would imply that it’s human and humans have legal rights but not when the humans find themselves in one location, the womb, and …

Oh dear.

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