If it’s about pregnancy, it’s about women: Ivana Levkovic v Her Majesty the Queen

On October 10th, 2012 the Supreme Court of Canada (“SCC”) heard arguments in the case of Ivana Levkovic v Her Majesty the Queen. The next day, the SCC heard arguments in the case of Her Majesty the Queen v ADH. Both cases involved women who had left their foetuses after giving birth. In Levkovic, the foetus was found dead, and the woman was charged under s. 243 of the Criminal Code (the decision of the Ontario Court of Appeal can be found here). In ADH, the foetus was revived and the woman was charged under s. 218 of the Criminal Code (the decision of the Saskatchewan Court of Appeal can be found here). Section 243 criminalizes the disposal of the dead body of a child. Section 218 criminalizes the abandonment of a child during the first ten years of its life. Fellow TheCourt.ca writer, Reuben Zaramian, posted about the Levkovic case here. I’ve had the benefit of reading his thoughts on the issue, and have also had the opportunity to listen to the arguments made before the SCC, which can be found here. In the paragraphs that follow, I intend to highlight some of the key issues at stake in the case, and discuss Levkovic in relation to issues surrounding women’s autonomy and privacy in decisions women make about reproduction.

To begin, s. 243 reads as follows:

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 trial judge found that phrase “child died before…birth” was unconstitutionally vague, thereby violating s. 7 of the Charter. At the Ontario Court of Appeal, Justice Watt, writing for the court, overturned the trial judge’s decision. The defendants appealed to the SCC, and spent much of the oral submissions discussing whether the test for vagueness should operate in a contextual framework, what this contextual framework consisted of (women’s reproductive rights), and whether situating the test in a contextual framework would require different standards of vagueness depending on the context. The parties agreed that the standard to declare a provision constitutionally vague is high; however, the appellant argued (supported by the intervener, the Criminal Lawyers Association) that because of the context of this case, the level of precision in the statute required to pass constitutional scrutiny was higher than it might be in other cases.

I will return to the issue of context later in this post, but first it’s necessary to talk some more about the provision itself. The defense took no issue with the statement “during or after birth” (although, as noted at the SCC, one could make an argument that the entire provision itself offends the dignity and autonomy of women); as such, I confine my observations to the phrase “child died before…birth.” The vagueness issue arose because there is no definition of “child” provided in the Code, which means we do not know at what point during the pregnancy a foetus becomes a “child” before birth. Where a woman delivers a dead foetus at fifteen weeks gestation, how, without some kind of legislative definition of when the foetus is a child, is she to know whether or not she must declare the failed pregnancy lest she be caught by the statute?

This of course begs the question of whether, if at any point prior to birth, a foetus can be considered a child (which is a question that goes to the very heart of the abortion debate). If the “thing” we’re talking about is a foetus which dies before birth, and which is disposed of and concealed after birth, the provision is not activated. If, however, the “thing” is a child who dies before birth, and is disposed of and concealed after birth, then the provision is activated. To be clear, the trial judge stated that this provision would not apply to abortions or to miscarriages. As such, the provision is activated when something other than an abortion or miscarriage causes the death of a “child” prior to birth. Notwithstanding this, the implications for abortion are undoubtedly on the Court’s mind as it hears the oral arguments—the judges themselves struggle with what to “call” a “thing that comes out of the woman” because the terms “child” and “foetus” are steadfastly aligned with opposing sides of the abortion debate.

The problem with the provision, as argued by appellant’s counsel, is that without a concrete understanding of when a foetus becomes a “child before birth,” a woman is unable to know whether she is under a duty to disclose a failed pregnancy. As such, the provision does not provide “fair notice” to a person regarding what actions constitute the crime. Although we know that the provision does not apply to a miscarriage, it may be difficult for a woman to ascertain on her own, without the assistance of a doctor, whether she has had a miscarriage or a stillbirth (to which the provision, presumably, would apply). Counsel for the appellant argued before the SCC that where an individual must use expert evidence to determine whether or not a crime has been committed, the provision is vague; in other words, the individual must be able to ascertain, at the very moment she delivers the foetus, whether or not it is a “child” for the purpose of s. 243.

The fact scenario in ADH can illustrate the difficulties of requiring a woman to determine the viability of the foetus at birth, so as to ascertain whether she has given birth to a “child” and might be caught by s. 243 if she fails to disclose the pregnancy. In this case, the woman was unaware that she was pregnant, and gave birth in the bathroom of a Wal-Mart. The woman (incorrectly) believed that the foetus was dead and left the store. A physician called to testify revealed that the birth had been precipitous, which means it took place in less than an hour. After births of this kind, it is common for a foetus to be in a shock-like state, be blue or pale, and appear to be dead to a layperson. To clarify, in this case because the foetus was alive, the charge was laid under s. 218 (and not s. 243, which requires that the foetus is dead). Despite the different charges in ADH and Levkovic, ADH exemplifies the difficulty of knowing the status of the foetus, without the help of a doctor.

Now, one might ask, why wouldn’t a person who had just given birth immediately call the police and declare the pregnancy? Perhaps because society as a whole is not generally kind to women who are unaware that they are pregnant (labeling them negligent or unfit, even though in this case, the woman had taken several pregnancy tests which had indicated that she was not pregnant, and she had her period each month), because she has a distrust of the ability of the authorities to help her, because she does not want to endure the stigma of revealing that she had given birth, or for any other number of reasons that may be valid, and that should not attract criminal liability. More importantly, s. 7 of the Charter not only protects the physical integrity of the person, but also protects liberty and autonomy—and this includes (or should include) the liberty and autonomy a woman has to choose when to say something about her own body (ie., “I’m pregnant” or “I’ve had a miscarriage”). As Marie Henein, counsel for the Criminal Lawyers’ Association, argued before the Court, if the state is going to mandate the disclosure of information that we would not otherwise think a woman should have to disclose (ie., that she has had a failed pregnancy), it should be precise in telling a woman when the duty to disclose is triggered.

In response to the assertion that this case implicates women’s autonomy and privacy interests, both Justice Watt at the Ontario Court of Appeal and Justice Moldaver at the SCC implied that this case was not about gender, because the provisions did not use gender-specific pronouns, and as such, a man could be charged under the provision. With respect to both judges, this case is necessarily about gender. In Dobson (Litigation Guardian of) v Dobson, [1999] 2 SCR 753, Justice McLachlin (as she then was) stated that pregnancy is essentially related to womanhood; as such, this case is about gender because it is about pregnancy. While it is true that a man could be charged with the provision, a woman is necessarily implicated because she is needed for the birth of the child. As Henein argues, while technically a man could be charged, charges under this provision have not proceeded on a gender-neutral basis. The belief that this case is somehow not about gender is particularly troubling because until we understand that questions about abortion, the definition of “child,” and offenses surrounding reproduction are gendered questions, thereby implicating women’s autonomy and privacy rights, we cannot have a functional discussion about the implications of decisions in which these issues are at play.

Cases involving abandoned foetuses are often met with skepticism about the criminal (and moral) innocence of the woman who gave birth. Maybe this is so because we do not talk openly about women’s reproduction. Stereotypes about maternal instinct continue to infiltrate the discussion about women’s reproduction and relegate women who do not embrace pregnancy as outcasts; these women are labeled unfit, irresponsible, or clearly criminally liable for something. Perhaps it is difficult to talk about foetuses abandoned in toilets at Wal-Mart, or left on balconies of apartment buildings, because it we talk about this, then we also have to talk about broader issues regarding the ways in which society has failed women in the area of reproduction (ie., the failure to provide free contraception), and the ways in which these failures influence decisions women make about reproduction.

This context should matter in the determination of whether the provision is vague, and therefore unconstitutional. It is because this provision affects the autonomy and privacy of women’s decisions relating to reproduction that the language of the provision should be precise in signaling when a woman’s actions approach criminal liability (and again, it may be possible to argue on these same reasons, that the provision should be struck down entirely). Does recognition of context mean we might have different standards of vagueness depending on that context? Perhaps. Would this be a bad thing? Maybe not, since courts have time and again recognized, especially in the area of criminal and constitutional law, that context should inform the application of a legal test. Indeed, it was the recognition of the ways in which stereotypes formed the foundation for the application of sexual assault laws, to the detriment of women’s sexual autonomy and safety, that led the SCC in R v Ewanchuk, [1999] 1 SCR 330 to change the approach to sexual assault and recognize that for this particular offense, the test required to prove the actus reus and mens rea had to be applied with an acute awareness of the context in which sexual assaults took place (ie., the damaging, and widely held assumption that women walked around in a state of perpetual consent). It remains to be seen whether the SCC finds the appellant’s argument persuasive and, if they do, the implications this will have for women’s reproductive rights, and the rhetoric that surrounds it.

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