At the Court: What We Talk About When We Talk About Children… and UROM

Redefining “child”?

In Ivana Levkovic v. Her Majesty the Queen, the Supreme Court will have the opportunity to define or clarify what a “child” is. Although the Criminal Code of Canada has many provisions that criminalize acts against and involving children, it does not explicitly define who can be categorized as such, nor does it offer general guidelines.

The appellant was charged and convicted under s.243 of the Code, which states that “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 provision is intended to apply to stillbirth-related matters, and does not apply to miscarriages or abortions. The applicant admitted to police that she gave birth to her child in her apartment after taking a fall, placed the deceased child in a bag, left it on the balcony, and proceeded to vacate the apartment. The cause of death was unknown, and a pathologist could not conclusively point to the time at which the child died. Justice Hill, of the Ontario Superior Court of Justice, acquitted the defendant, as he could not come up with an unambiguous meaning for the term “child,” and because the cause of death could not be determined. The Court of Appeal set that decision aside and ordered a retrial.

The appellant now submits that the Crown’s argument that the language of s.243 covers a specific gestational-age definition of “child” before birth – the Crown identifies a fetus of seven months and older as a “child” – has no basis in the provision, and that the Court cannot overlay the provision with its own unlegislated remedy to correct for vagueness. She argues that s.243 violates her liberty under s.7 of the Charter for being unconstitutionally vague, and that it cannot be justified under the s.1 reasonable limits clause. The Court resumes its judicial season with this case on October 9.


UROM (Unsubstantiated Recovery on Overpriced Memory)

In Samsung Electronics Co., Ltd., et al. v. Option Consommateurs, et al., the Court will determine whether manufacturers and retailers (direct purchasers), and individuals (indirect purchasers) of Dynamic Random Access Memory (DRAM) computer parts are entitled to sue to recover an increase in the price of the component due to anti-competitive behaviour by Samsung Electronics and three other companies operating in the United States, for which they pleaded guilty in 2004. The purchasers have argued that the direct purchasers were subjected to inflated costs, which they were then forced to pass on to indirect purchasers when using the components in their computers and other devices. The Quebec Superior Court refused to authorize the class action on the basis that it did not have the jurisdiction to hear the motion; this was set aside by the Court of Appeal, who authorized the class action. The applicant companies have been granted leave to appeal by the Supreme Court, and will argue that the Court of Appeal erred in its decision, as the ruling was made without a finding of error. They further argue that both types of purchasers are using the “vehicle” of a class action proceeding to claim an aggregate amount that does not reflect losses. They claim that those losses have not been substantiated, and a claim cannot be grounded without proof. The Court is scheduled to hear arguments on October 17.

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