R. v. Levkovic, 2013 SCC 25

Ivana Levkovic was charged under Section 243 of the Criminal Code with concealing the dead body of a child, after the remains of a newborn baby (allegedly “at or near full term”) was found in her vacated apartment. Levkovic challenged the constitutionality of Section 243 as being unconstitutionally vague, insofar as it related to a child which died before birth and was therefore stillborn. She argued that the law constituted an infringement on her right to liberty and interfered with every woman’s right not to disclose a naturally failed pregnancy.

The trial judge accepted Levkovic’s arguments, resulting her acquittal, which was subsequently overturned by the Court of Appeal.

On further appeal, the Supreme Court of Canada upheld the Court of Appeal’s decision, finding that it is possible to draw a line between a miscarriage (the concealing of which Section 243 does not prohibit) and a stillbirth (which is legally required to be reported). This distinction, the court found, turns on the likelihood that the child would have been born alive:

[56] To support a conviction under s. 243, it must be shown that the “remains” disposed of were the remains of a child. In cases involving death before birth, the burden is therefore on the Crown to prove that the fetus would likely have been born alive.

And further:

[78] The foregoing contextual and purposive analysis persuades me that s. 243 meets the minimum standard of precision required by the Charter. In its application to a child that died before birth, s. 243 only captures the delivery of a child that was likely to be born alive.

The decision of the Supreme Court makes clear that the Crown faces an uphill battle in proving the necessary intent for a conviction under Section 243 in circumstances where the child in question died before birth. However, the decision also makes clear that the actual moment when a child’s life begins (and warrants legal protection) cannot be fixed at the moment of birth any more than it can be fixed at some arbitrary point during gestation.

The Levkovic decision is a clear statement from the Supreme Court of Canada that the legal definition of a “person” contained in Section 223(1) of the Criminal Code (i.e. that personhood begins when a child has “completely proceeded, in a living state, from the body of its mother”) is both legally and medically inaccurate and untenable.

Decided by the Supreme Court of Canada on May 3, 2013.
Click here for the full text of the decision.

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Filed under Section 7: Life, Liberty, & Security of the Person

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