Defining the Mental State for Infanticide: R v Borowiec
The Supreme Court of Canada (“SCC”) recently heard the Crown appeal of R v Borowiec, 2015 ABCA 232 (“R v MB”). The case is significant given the possibility for a change in the law of infanticide in Canada, as the Crown has argued for the need for greater clarity of what constitutes a ‘disturbed mind’ in the infanticide provision, through the substitution of a higher bar for such a finding.
The impugned provision, section 233 of the Criminal Code, RSC 1985, c C-46 states:
A female person commits infanticide when by a wilful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed.
Like murder, the provision is an indictable offence. However, it is also a partial defence to a charge of murder, if a woman who causes the death of her baby is found to meet all the elements of s. 233. This includes that the accused was not fully recovered from the effects of giving birth and by reason thereof her mind is then disturbed.
Rather than a charge of infanticide, MB had originally been charged with two counts of second-degree murder. The charges came after she was found seated with a blanket wrapped around her waist, close to a dumpster in which an infant was found. During the police investigation, MB admitted to leaving two previous infants in the dumpster.
The trial judge acquitted MB of the second-degree murder charges and instead found her guilty of two counts of infanticide. The Crown appealed the infanticide convictions to the Alberta Court of Appeal, where the majority upheld the decision. According to s. 676 of the Criminal Code the Crown can appeal an acquittal without leave based only upon issues of law.
The Crown raised three issues on appeal. The first issue was whether the trial judge erred in his application of the law of infanticide. The second issue concerned conflicting expert evidence, and whether the trial judge erred in his assessment of the competing expert testimony. A third lesser issue was the adequacy of the trial judge’s reasons.
Writing for the majority of the Court of Appeal, Justice Côté and Justice MacDonald held that the trial judge did not err in his application of the law of infanticide. On the second issue of competing experts, the majority held that the assessment of the conflicting evidence of the expert witnesses was not a question of law but of fact, and therefore, could not form the basis of a Crown appeal.
In contrast, the dissent of Justice Wakeling disagreed with the majority on the first issue and determined that the trial judge erred in the application of the infanticide requirements under section 233. Justice Wakeling would have allowed the Crown appeal, setting aside the acquittal for the second-degree murder charges and ordering a new trial.
Returning to the reasoning of the majority, it was noted that the court-appointed psychiatrist, Dr. Hashman, had given expert testimony but had elevated the mental state enumerated in the criminal code from that of “mind is then disturbed” to that of “major mental disturbance.” Dr. Hashman had also determined that MB’s “balance of the mind was not disturbed” (R v MB, para 23). However, the trial judge observed that the infanticide provision does not specify a test of ‘balance of the mind’ and that the Crown had set the bar too high for establishing a disturbance of the mind (R v MB, para 23).
The majority also outlined the history of the infanticide provision, in that it was first introduced into the Criminal Code in 1948 by way of amendment. Note was made of the historical context, wherein the punishment for murder was that of ‘death by hanging’ and juries were reluctant to convict women who had caused the death of their newborns for murder.
Although the introduction of infanticide also may have been a reflection of outdated gender stereotypes, it is a reality that women do experience real physical changes after giving birth.
Yet as Professor Isabel Grant argues, the impact of physical changes cannot be separated from the socio-economic context and persistence of power imbalances in gender relations (Grant, Isabel, Desperate Measures: Rationalizing the Crime of Infanticide (2010). Canadian Criminal Law Review, Vol. 14, pp. 253-272, 2010. Indeed the accused stated that she hid the pregnancies from her boyfriend out of a concern for not wanting to upset him.
This evidence does suggest that the facts of MB’s case ought to have been considered in their unique social context. The Women’s Legal Education and Action Fund (LEAF) was granted leave to intervene at the SCC. LEAF raised issues of substantive equality in its Factum—including the purpose of the infanticide law—in that it provides for a consideration of mitigating factors such as medical, social and economic, which could diminish culpability in the commission of the act.
Indeed, many of these factors were present with the accused MB, as could be seen through the evidence given at trial from her coworkers, her statements to police, and the expert medical opinion presented.
These considerations certainly raise questions as to whether a conviction for murder would be appropriate in this case, given the diminished moral culpability of the accused. As was noted in the Factum of the respondent MB at paragraph 41:
The Respondent, consistent with most perpetrators of neonaticide, did not suffer from a mental disorder but experienced symptoms of depersonalization, anxiety and confusion reflecting a disturbance in the mind.
Thus given the circumstances described above concerning the mental health of the accused the infanticide provision does appear to be the appropriate charge as per the Criminal Code. However, courts have indeed wrestled with where to draw the line in determining when an accused has a “disturbed” mind. As was noted by the trial judge in R v B(L) (2008), 237 CCC (3d) 215, 61 CR (6th) 179 at paragraph 59 and subsequently cited by the majority in the instant case:
[T]he disorder must not be so minimal that finding it crosses the threshold cheapens or disrespects the memory of the innocent victim. On the other hand, it must not be so severe as to be almost indistinguishable from a section 16 defence, nor should it inject into the mix something which Parliament apparently decided to exclude, the element of causation.
Nevertheless, there does not appear to be a real need to update the provision, despite the Crown’s argument that “the infanticide provision requires a purposive and prosocial interpretation that would prevent this defence from being applied across the board to all mothers who kill their newborn children while only mildly disturbed.” (Factum of the Appellants, at para 112). Notwithstanding this “floodgates” argument made by the Crown – that a new legal test for infanticide must be developed which includes the “substantial” standard for psychological disturbance – there does not appear to be evidence that an epidemic of women killing their babies while suffering from something closer to postpartum depression has occurred or will occur.
Although it has been argued that the infanticide provision is no longer necessary in its current form with the abolition of capital punishment, or, as the Crown argues, the greater equality that women now have in society, it is not certain that the SCC will take on the opportunity to carry out what it may deem to be the purview of parliament. The majority of the Alberta Court of Appeal noted this point as well:
 The opportunity has existed for Parliament either to re-configure the defence, abolish it, or change the onus of proof. Parliament has chosen not to do so. In that light, it is not open to this Court to revise the location of the onus of proof. Furthermore, Parliament does not legislate to no purpose, so it is clear that infanticide must occupy a realm of circumstances which would otherwise appear to be murder or manslaughter but are not proven to be so.
Further, given the rarity of incidents of infanticide it does not seem entirely necessary either. As the majority noted at the Court of Appeal, raising the bar so as to make it more difficult to convict on charges of infanticide could lead to more acquittals, which seems like a consequence that the SCC would not likely accept. However, what the Crown seems to be advocating for here could also lead to increased findings of murder, which does not seem appropriate either given the diminished mental state of the accused in such cases. Furthermore, given the reluctance of the Court to take on roles it deems to be “legislative” it seems unlikely that the Court will be persuaded by the Crown’s argument that it must update the provision to accord with contemporary norms and values.