Sunday, 13 March 2011

SIDS: Canada: or Infanticide

Adrian Humphreys, National Post · Mar. 2, 2011 |
A young mother who “did not take well to motherhood” and killed two of her four children three years apart has avoided significant punishment after “infanticide” was upheld as a defence, even when evidence points to murder. The only way out, the Ontario Court of Appeal said Wednesday in a landmark ruling, was for Parliament to revisit a law the Crown prosecutor suggested was outdated and unsound.
The emotional case of the double killing, one of a child who did not stop crying and another who had minor medical issues, was the first thorough appellate examination of the 57-year-old wording of the law.
The ruling noted that Crown prosecutor Jennifer Woollcombe had argued that the concept of infanticide “rests on discredited medical opinions and assumptions about the plight of young unwed mothers that do not accord with present reality, and constitutes an unacceptable devaluation of the worth of a newborn child.”
And although the court upheld it, the infanticide law — based on a 1922 English provision that has itself since been abandoned — did not emerge unscathed.
The woman, who cannot be identified because of the Youth Criminal Justice Act, had a troubled childhood and had previously received mental health treatment before becoming pregnant while in high school.
In 1998 she gave birth and, as the court of appeal notes, “did not take well to motherhood.” Six weeks later, her son’s crying made her angry. When he would not stop, she smothered him in his crib with blankets and a plastic bed sheet. She left the room and turned up some music.
The killing went undetected, with the cause of death being attributed to Sudden Infant Death Syndrome.
In 2001 she had a second child with a different father. There appeared to be no problems associated with that experience.
About a year later, she gave birth yet again. When the third child was 10 weeks old, she smothered him in his crib as well and again her culpability went undetected after another finding of SIDS.
She had a fourth child in 2003. That seems to have gone well.
A year later, however, when she was in a mental health treatment centre, she confided to a doctor she had killed two of her children. She also described the incidents in her journal.
She was charged with first-degree murder.
At trial, the judge acquitted her of murder, instead finding her guilty of infanticide for both killings. She was sentenced to 18 months in custody, followed by three years probation and an order that, for the next 20 years, she notify a child welfare agency if she becomes pregnant.
The Crown appealed the murder acquittals, saying that all essential elements of first-degree murder had been proved. The Crown argued infanticide should only be applied if the elements of murder are not proved.
The appeal focused on parsing the wording of the Criminal Code detailing what constitutes murder, manslaughter and infanticide, the three categories of culpable homicide. The Crown also, however, attacked the validity of the infanticide provision itself.
The court of appeal noted that position, but concluded they must work with the words of the Criminal Code that are passed by the government.
“If the Criminal Code makes infanticide a partial defence to murder, it is not for the court to decide whether that partial defence reflects sound criminal law policy or should be reconsidered in light of advancements in medical knowledge and/or changed social circumstances. Those are matters for Parliament,” said Justice David Doherty, who wrote the judgment on behalf of a unanimous panel of three judges.
A spokeswoman for Rob Nicholson, Minister of Justice and Attorney General of Canada, left the door open for a review of infanticide but declined to specifically address the issue.
“Our government is always interested in improving and updating our laws,” said Pamela Stephens, press secretary for the minister.
A noted mental health specialist said such a review would be in keeping with modern legal reform in other countries, suggesting it was a relic of a time long past.
“It came about to deal with the appalling situation for young unwed mothers in the Victorian era, to keep young mothers in distress from being hung if they killed a child,” said Sandy Simpson, a forensic psychiatrist and head of the law and mental health program at both the Centre for Addiction and Mental Health and the University of Toronto.
“The test as it generally exists in Commonwealth countries tends to draw on some of that historical heritage; some of which does not fit with what we know about the patterns of mental illness and how it effects young mothers.”
Canada adopted its law from a 1922 English law but the infanticide provision has since been abandoned in England, replaced with a general law of diminished responsibility that can apply to a variety of special circumstances rather than a special law for these specific circumstances.
“To call it discredited is unfair but our modern understanding of the epidemiology of major depression or major mental illness in the period of pregnancy and delivery doesn’t support a huge rise in people becoming depressed… but some women can certainly develop a significant and serious depression in those days, weeks and months after giving birth,’’ said Dr. Simpson.
“Child bearing and lactation have lost their specificity in our understanding of it directly contributing to depression.”

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