Fair notice and women’s reproductive rights: SCC dismisses appeal in R v Levkovic on the constitutionality of Criminal Code section 243

On May 3, 2013, the Supreme Court of Canada unanimously dismissed the appeal of Ivana Levkovic, who challenged the constitutionality of section 243 of the Criminal Code (RSC c C-46). Section 243 makes it a criminal offense to dispose of a child’s dead body with the intent to conceal the fact that it was delivered, “whether the child died before, during or after birth.” Reuben Zaramian has provided a factual background for the case in a previous TheCourt.ca piece, found here.

Soon after the arguments were heard at the SCC on October 2012, Stephanie Voudouris commented on the implications of this decision for women’s reproductive rights, and invited a more contextual vagueness analysis that considers the effect section 243 has on women’s right to autonomy and privacy with respect to making decisions about reproduction. Her thoughts on the matter can be found here.

Levkovic argued that section 243 is unconstitutionally vague because it does not provide sufficient notice to women to be able to determine when a fetus has become a “child.” As such, section 243 interferes with “every woman’s right not to disclose a naturally failed pregnancy,” a vital aspect of women’s constitutionally protected autonomy and privacy interests (R v Levkovic 2013 SCC 25 at paras 7-8).

In the sense that section 243 might compel disclosure from women who have suffered naturally failed pregnancies that they would prefer to, and have a right to, keep private, the Court characterized the appellant’s submission as “a challenge for vagueness in form but overbreadth in substance” (para 9). The overbreadth analysis requires balancing a provision’s impact on constitutionally protected interests against the means necessary for government to achieve its legislative objectives. Since Levkovic had not challenged section 243 for overbreadth on appeal, the SCC held that it was not open to her to characterize “her privacy interest submission as a vagueness challenge, to circumvent this balancing exercise that informs a properly constitutional challenge for overbreadth” (para 9).

Returning to vagueness, the SCC reaffirmed its long-held view that proportionality plays no role in vagueness analysis and reiterated that the doctrine is based on providing fair notice of the essential elements of the crime to citizens, and limiting enforcement discretion (paras 32, 37). The Court recalled that, as per its decision in Canadian Foundation for Children v. Canada (Attorney General) 2004 SCC 4 individuals are expected to refrain from “borderline” conduct or accept the consequences of the risk they knowingly assume (para 35).

Declining to draw a bright line between a developing fetus and a child where Parliament has chosen to omit one, the SCC instead opted to follow the Court of Appeal’s adoption of the “likelihood of live birth” test from the old English case, R v Berriman 1854, 6 Cox CC 388. As such, the Court concluded that a fetus becomes a child for the purposes of section 243, when it “has reached a stage of development where, but for some external event or circumstances … would likely have been born alive” (para 13). The burden is on the Crown to demonstrate that the fetus was likely to have been born alive (para 56). The SCC held that this standard would be sufficient in order to resolve any ambiguity found in section 243 in favor of the accused.

The SCC asserted that the purpose of section 243, in context, is to facilitate homicide investigations and so must cover potential victims of homicides. According to the SCC, section 243 “simply ensures that the law can respond to criminal conduct against newly born infants in cases where the evidence does not establish that death occurred post-birth” (para 66). To support this interpretation of the purpose of section 243, the Court cited surrounding sections of the Criminal Code: section 238, which prohibits killing an unborn child in the process of birth, and section 242, which prohibits failure to obtain assistance in childbirth when it results in permanent injury or death (para 63). The Court also pointed to the recent Goudge Report to demonstrate society’s concern with properly investigating crimes against children, “the community’s most precious and defenceless asset” (para 68).

The appellant’s final submission was that section 243 is overly vague because it relies on expert medical evidence to determine whether a fetus was likely to have been born alive. While the Court acknowledged that laws must be accessible (para 71), it stated that is not unusual for provisions to require expert evidence to determine whether an essential element of the offence was committed after the fact. The SCC pointed to laws requiring breathalyser tests as an example. Further, the SCC noted that severing the word “before” from section 243 would not eliminate the need for expert medical evidence to determine time of death.

The Court concluded by noting that provincial statutes require disclosure of late-term failed pregnancies that have reached at least 20 weeks or where the fetus weighs at least 500 grams. Although these statutes could not help in the interpretation of the word “child” in section 243, the SCC commented that the fact that these provisions have gone constitutionally unchallenged “may well negate the privacy and autonomy interests claimed by the appellant in this case”(para 15).

While the state’s interest in ensuring that crimes against young children are investigated fully and responsibly is undoubtedly an important goal, this decision does not provide women with much concrete guidance as to when their duty to disclose a failed pregnancy is engaged by section 243. Without expert medical evidence after the fact, a woman cannot know for sure whether her child would likely have been born alive. Without more precision in the provision, it seems inevitable that women who have a right to keep their naturally failed pregnancies private will feel compelled to disclose them. While the SCC understandably deferred to Parliament’s omission of more specific guidance or a bright line, holding that section 243 is unconstitutionally vague would have signalled to the legislature that it must revise the provision in order to make it more understandable and accessible to women without recourse to expert medical evidence. As demonstrated by the provincial statutes cited in this case, there is clearly room to provide fairer notice to women.