Appeal court says Parliament must decide future of infanticide defence

The Ontario Court of Appeal has ruled that infanticide can be a partial defence to murder.

It means women who kill their newly born children can be convicted of infanticide, even when charged only with murder.

The Court of Appeal upheld a judgment in the trial of L.B., who killed two of her children. The trial judge found the Crown had proved the essential elements of first-degree murder, but went on to find her guilty of infanticide, agreeing with a defence expert who said her mental state at the time of the killings was affected by the effects of child birth.

Joanna Birenbaum, the legal director of the Women’s Legal Education and Action Fund, an intervener in the case, said her group was pleased with the result after noticing a recent trend of the Crown charging women with murder rather than infanticide.

“The result is that these women face life imprisonment,” said Birenbaum. “This is a significant concern to LEAF since the offence of infanticide, which carries a maximum sentence of five years imprisonment, is intended to account for the complex and gendered social, economic, psychologicalm and medical context in which the offence occurs.”

Justice David Doherty, writing for the court in R v. L.B., said the decision to treat infanticide as a partial defence to murder was consistent with the intention of Parliament when it made the distinction between the two in the Criminal Code in 1948.

“Infanticide is both a discrete indictable offence and a partial defence to murder under the terms of the present Criminal Code. Whether it should continue to so operate, and if so under what terms, raises difficult policy questions. Those questions are for Parliament and not the court,” wrote Doherty.

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