WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE
    ACT

AND IS
    SUBJECT TO:

110. (1)
Subject to this section, no person
    shall publish the name of a young person, or any other information related to a
    young person, if it would identify the young person as a young person dealt
    with under this Act.

111. (1)
Subject to this section, no person
    shall publish the name of a child or young person, or any other information
    related to a child or a young person, if it would identify the child or young
    person as having been a victim of, or as having appeared as a witness in
    connection with, an offence committed or alleged to have been committed by a
    young person.

138. (1)
Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised Statutes of Canada,
    1985,

(
a
)       is guilty of an indictable offence and
    liable to imprisonment for a term not exceeding two years; or

(
b
)       is guilty of an offence punishable on summary conviction.

CITATION:
R. v. L.B., 2011
          ONCA 153

DATE: 20110302

DOCKET: C49467-C49468

COURT OF APPEAL FOR ONTARIO

Doherty, Moldaver and Cronk JJ.A.

BETWEEN

Her Majesty
          the Queen

Appellant

and

L.B.

Respondent

Jennifer Woollcombe, for the appellant

Timothy Breen and James Fleming, for the respondent

Marie Henein, Matthew Gourlay and Joanna Birenbaum, for the
          intervener Womens Legal Education and Action Fund (LEAF)

Heard: September 23 and 24, 2010

On appeal from the acquittals returned by
          Justice Casimir N. Herold of the Superior Court of Justice on September 11,
          2008, with reasons reported at (2008), 237 C.C.C. (3d) 215.

Doherty J.A.:

I

[1]

Infanticide has been part of the criminal law of
    Canada for over 60 years.  Homicides for
    which a conviction for infanticide is a possible verdict are rare.  Most of the few convictions for infanticide
    are the product of guilty pleas.  There
    is no Canadian appellate decision that has examined the infanticide provisions
    in the
Criminal Code
, R.S.C. 1985,
c
. C-46 in any detail.
[1]
This appeal raises an issue that goes to the
    very nature of those provisions.  Is
    infanticide both a substantive offence and a partial defence to a murder charge,
    or is it exclusively a substantive offence that may in appropriate cases be an
    included offence in a murder charge to be considered by the trier of fact if,
    and only if, the Crown fails to prove murder?

[2]

Choosing between the two characterizations of
    infanticide has profound importance in a case like this one where a mother is
    charged with murdering her child.  If
    infanticide provides a partial defence to murder, the mother will escape a
    murder conviction if the homicide falls within the purview of infanticide even
    though the Crown may prove all the essential elements of the crime of
    murder.  If, however, infanticide
    operates only as a potential included offence on a murder charge, and if the Crown
    proves the essential elements of murder, the mother must be convicted of murder
    even though the homicide falls within the meaning of infanticide.

[3]

The two interpretations lead to dramatically
    different sentencing options.  If the
    mother can raise infanticide as a partial defence, and if she is successful and
    convicted of infanticide, she is liable to a maximum penalty of five
    years.  Existing sentencing patterns
    suggest she could receive a non-custodial sentence:  see G. Fitch, Infanticide (Paper presented
    to the National Criminal Law Program: Substantive Criminal Law, Halifax, Nova
    Scotia, July 2004) Federation of Law Societies of Canada, 2004, section 11.5,
    at p. 17.  However, if infanticide serves
    only as a potential included offence if murder is not proved and the mother is found
    to have committed murder, she must be sentenced to life imprisonment.

[4]

The submissions made by the Crown, respondent
    and intervener also raise two additional issues that affect the operation of
    the provisions:

·

What is the
mens
    rea
or fault requirement for infanticide?

·

If an accused can raise a defence of
    infanticide to a murder charge, does the Crown have the onus of negating that
    defence, or is the accused required to establish on a balance of probabilities
    that the homicide constitutes infanticide?

II

Overview

[5]

L.B. was charged with two counts of first degree
    murder.  The Crown alleged that she
    murdered two of her children, Alexander in 1998 and Cameron in 2002.  L.B. was seventeen years of age at the time
    of the first homicide and subject to the terms of the
Youth Criminal Justice Act
, S.C. 2002, c. 1 (
YCJA
).  She was an adult at
    the time of the second homicide, making the
Criminal
    Code
the applicable legislation.  On
    consent, the two charges were tried before a judge without a jury.  The parties agreed that L.B. would be
    arraigned on the
Criminal Code
charge
    first and that the evidence and submissions heard at that trial would be
    applied on the trial of the charge prosecuted under the
YCJA
.  The trial judge acquitted
    L.B. on the murder charges and convicted her of the included offence of
    infanticide on both charges.

[6]

The trial judge sentenced L.B. to 18 months on
    the count prosecuted under the
YCJA
.  The first 12 months were to be served in jail
    and the last six months under supervision in the community.  The trial judge also imposed a six month
    probation term.

[7]

On the second conviction, prosecuted under the
Criminal Code
, the trial judge took into
    consideration L.B.s pre-trial custody (two and a half years) and imposed a
    sentence of one day to be followed by three years probation.  That sentence was to run consecutively to the
    sentence imposed under the
YCJA
.  He also ordered L.B. to enter into a common
    law peace bond for a 20-year term.  The
    only provision in the peace bond required L.B. to notify the child welfare
    agency in the jurisdiction where she lived should she become pregnant.

[8]

The Crown appeals the acquittals on the murder
    charges, submitting that, as the trial judge found that the Crown had
    established all the essential elements of first degree murder on both charges,
    he erred in law in acquitting on those charges and convicting on the charges of
    infanticide.  The Crown seeks a new trial
    on the murder charges.
[2]

III

The Facts

(a) The
    Homicides

[9]

L.B. was fifteen years old when she met D.D., a
    high school classmate.  They began living
    together in the spring of 1998.  L.B. was
    pregnant.  She gave birth to a son,
    Alexander, on August 12, 1998.  Six weeks
    later, she smothered Alexander to death in his crib.  L.B.s actions went undetected and the cause
    of death was described as Sudden Infant Death Syndrome (SIDS).

[10]

L.B. and D.D. ended their relationship not long
    after Alexanders death.  She married
    K.B. in March 2001.  They had a child,
    Kodie, in May 2001.

[11]

L.B. became pregnant a third time late in
    2001.  Cameron was born on September 22,
    2002.  Ten weeks later, on December 1,
    2002, L.B. smothered Cameron to death in his crib.  Once again, L.B.s acts went undetected.  The cause of death was described as Sudden
    Unexplained Death Syndrome (SUDS).

[12]

L.B. became pregnant a fourth time in the spring
    of 2003.  Kayla was born in January 2004.

[13]

In the fall of 2004, L.B., whose two surviving
    children were 2 ½ (Kodie) and 10 months (Kayla), was having trouble coping with
    her children.  She had become depressed
    and was feeling overwhelmed.  L.B. had a history
    of psychiatric problems.  She had been admitted
    under the
Mental Health Act
, R.S.O.
    1990, c. M.7 to the Homewood Mental Health Centre (Homewood) about eight
    years earlier in May 1997.  In November
    2004, L.B. told a friend that she was losing her temper with her two remaining children.  Her friend convinced L.B. to visit a public
    health nurse.  L.B. was seen by a doctor
    shortly before Christmas 2004.  He prescribed
    antidepressant medication.

[14]

In late December 2004, L.B. was admitted to
    Homewood.  While she was in Homewood, L.B.
    told the attending physician that she had killed two of her children.  L.B. kept a journal while in Homewood.  In the journal she described killing her two
    children.  L.B. also told her husband,
    K.B., that she had smothered the children.  She was arrested and charged with two counts of murder in January 2005.

[15]

L.B. gave a detailed videotaped statement to the
    police admitting that she had killed her children, Alexander and Cameron.  She explained to the police that she was
    really confused and fighting with her thoughts when she smothered her two
    babies.  L.B. insisted that she did not
    want to hurt her children, but wanted to help them.  L.B. was obviously overwhelmed with feelings
    of guilt when she made her statement to the police.  The trial judge, at para. 4 of his
reasons,
described the respondents statement as a fairly
    accurate description of the relevant events.

(b) The
    Respondents Background and Mental Condition

[16]

The respondent had a troubled childhood.  Her mother, who was only 19 when she had the
    respondent, was later diagnosed as an alcoholic.  The respondents mother had been abused by her
    parents.  She neglected the respondents
    emotional needs and, on occasion, physically abused her.  The respondents parents separated when she
    was a young girl.  The respondent
    reported feeling unwanted as a child.  As
    an infant, she spent three months as a ward of the Childrens Aid Society.

[17]

People who knew the respondent as a child
    described her as angry and depressed.  She hated being alone.  By the
    time the respondent was in grade 11, she had been ordered out of her fathers
    home and was living with a friend.  The
    respondent began to engage in a variety of self-destructive behaviour
    suggestive of suicidal ideation.  She
    eventually found herself admitted to Homewood in May 1997 and remained there
    for two weeks.

[18]

The respondent and D.D., high school classmates,
    became romantically involved in 1997.  L.B.
    was sixteen years old and D.D. was seventeen.  The respondent wanted to have a baby.  She became pregnant and D.D. quit school and got a job.  The respondent and D.D. began to live
    together in the spring of 1998.  She was
    pregnant and very excited about having a baby.  D.D. was fully supportive and did his best to provide for his familys
    financial needs.

[19]

Alexander was born in August 1998.  D.D., the respondent and Alexander lived in a
    three-unit apartment building.  D.D.s
    mother lived in one of the other apartments.  After Alexanders birth, the respondent had the support of her father, D.D.s
    mother and other neighbours in the building.  D.D. did his best to help out, but he was out of the home a great deal,
    often working 12-hour shifts.

[20]

Alexanders health and development seemed
    relatively normal in the weeks after his birth.  The respondent breastfed Alexander for about four weeks.  The respondent did not take well to
    motherhood.  She became frustrated and
    angry with the burden of caring for her new baby.  She often seemed depressed and obsessive
    about cleanliness.  Her friends and
    neighbours noticed that she would seem zoned out at times.  Her relationship with D.D. deteriorated and
    they often argued.

[21]

In her statement to the police, the respondent
    described a variety of feelings on the day she killed Alexander.  His crying made her angry.  She wanted him to stop.  When he did not, she placed him in his crib,
    covered him with blankets and placed a plastic cover over him.  She then left his room and turned on some
    music.  The respondent told the police that
    she was very confused and insisted she wanted to help Alexander feel
    better.

[22]

Kodie, the respondents second child, was born
    in May 2001.  The respondent was very
    attentive to Kodies needs and things appeared to be going relatively
    well.  The respondent had the support of
    her husband, in-laws and neighbours.

[23]

Cameron was born in September 2002.  She breastfed Cameron for three weeks.  From the outset, the respondent did not seem
    to be as attentive to Cameron as she was to Kodie.

[24]

Cameron was a somewhat difficult child who
    experienced some minor medical problems.  There were trips to the hospital.  There is some evidence that the respondent actually started to smother
    Cameron on one occasion before his death, but managed to stop herself.

[25]

Cameron was hospitalized briefly in late
    November 2002.  The respondent and her
    husband took Cameron back to the hospital on December 1, 2002.  He was dehydrated.  The doctor prescribed some medication and
    Cameron was sent home with his parents.  The respondent killed Cameron later that night.

[26]

In her statement to the police, the respondent
    reported that on the day she killed Cameron she was very upset and feared that
    she would do harm to Cameron.  The
    respondent wanted Cameron to die, believing it was the right thing to do.  She knew she needed help and tried to get her
    husband to stay home that day.  She did
    not, however, tell anyone about her feelings.  When she killed Cameron, she told him he was going to a better
    place.

[27]

The trial judge had the benefit of detailed
    psychiatric reports and testimony from Dr. P. Klassen and Dr. J. Gojer.  Dr. Klassen saw the respondent pursuant to a
    court ordered assessment.  Dr. Gojer was
    retained by the defence.  Both doctors
    had a great deal of material available to them; however, neither saw the
    respondent until well after the charges were laid and several years after the
    homicides.

[28]

The trial judge thoroughly reviewed the evidence
    of both psychiatrists.  I do not propose
    to repeat that review.  The trial judge
    noted that the opinions of Drs. Gojer and Klassen were very similar in most
    respects.  Ultimately, the trial judge preferred
    Dr. Gojers opinion as to the significance of the respondents post-partum
    depression.  The trial judge was entitled
    to make that determination and it is not challenged on appeal.

[29]

Both psychiatrists agreed that the respondent
    suffered from a serious personality disorder prior to her pregnancies.  Dr. Klassen described her as suffering from
    borderline personality disorder and to a lesser extent, histrionic personality
    disorder.  He described these disorders
    as typically emerging during adolescence.  Dr. Gojer testified that the respondent suffered from a personality
    disorder with prominent borderline traits stemming from issues of rejection and
    abandonment.  Both psychiatrists agreed
    that the respondents personality features predisposed her to post-partum mood
    disturbance.

[30]

Dr. Gojer opined that the respondent was
    suffering from a mixed effective disorder at the time of both homicides.  In his report, he said:

It is likely that her mental state at the time of both
    homicides was impacted on or associated with mood and behavioural changes as a
    consequence of the effects of child birth, from which she had not fully
    recovered

[31]

Dr. Klassen agreed with Dr. Gojers evidence
    that biological and endocrinological changes caused by pregnancy could produce
    major clinical depression with post-partum onset.  He described three levels of that depression
    ranging from the baby blues through to full blown post-partum psychosis.  There was no suggestion that the respondent
    suffered from post-partum psychosis.  Dr.
    Klassen accepted that the respondent suffered from some level of post-partum
    depression.  He could not exclude the
    possibility that the respondent experienced a major depressive disorder with
    post-partum onset at the time of the homicides.

[32]

Both psychiatrists acknowledged the difficulty
    in isolating and quantifying the biological, psychological and social factors that
    could contribute to a mothers mental state after giving birth.  As I understand their evidence, Dr. Gojer put
    a heavier emphasis on the impact of post-partum related depression on the
    respondents state of mind when she killed her children than did Dr.
    Klassen.  However, Dr. Klassen
    acknowledged the presence of post-partum depression, but could not quantify the
    role played by that depression in the respondents mental state at the relevant
    time.

[33]

The trial judge ultimately concluded, at para.
    66:

We know that this disturbance of the mind, which
    sometimes affects new mothers, can have a variety of causes and it is almost
    certain ... that biological reasons related to hormonal changes are included
    therein.  It would appear that
    biological, social and psychological factors all intersect and, depending on
    the severity of each and also depending on the predisposition of the mother
    whose actions are being considered, different consequences may follow.

[34]

The trial judge went on to hold that he was
    satisfied that the respondents mind was disturbed as a result of her not
    having fully recovered from the biological effects of giving birth or perhaps
    the effects of lactation at the time she killed her children.  He determined that the disturbance caused by
    the effects of giving birth and perhaps lactation was sufficient to afford the
    respondent the defence of infanticide.

IV

The Conduct of the Trial

[35]

Counsel for L.B. relied almost exclusively on
    the partial defence of infanticide.  Counsel
    conceded that the Crown had established the essential elements of the crime of
    murder as defined in s. 229(a), and that L.B. did not have a s. 16 defence (not
    criminally responsible on account of mental disorder) to either charge.  On the issues of planning and deliberation,
    the defence acknowledged that there was evidence of both but argued that the
    planning and deliberation had not preceded the formation of the intent to kill
    and could not, therefore, support a finding of planning and deliberation for
    the purpose of a first degree murder conviction.  The trial judge rejected this submission and concluded,
    at para. 27:

[T]here can be no doubt on the totality of the
    evidence (as all counsel agree) that both planning and deliberation have been
    amply proven by the evidence, and that at the requisite time in each case (that
    is to say when the blankets and plastic sheeting were pulled over the head of
    the infant in each case) Ms. B. had the intent to put them to sleep
    permanently, to murder them.

Accordingly,
    subject to the issue of the role, if any, which infanticide might play in my
    judgment, I make a tentative finding of guilt of first degree murder with
    respect to each of Alexander and Cameron.
[Emphasis added.]

[36]

After concluding that the Crown had established
    the essential elements of first degree murder, the trial judge went on to
    consider infanticide.  He accepted that
    infanticide provided a partial defence to murder in that a homicide that met
    the criteria for a murder could be reduced to infanticide if it met the
    criteria for infanticide.  The trial
    judge held, contrary to the defence position, that the accused was required to
    establish the partial defence of infanticide on the balance of probabilities.  After a review of the evidence, the trial
    judge determined that the defence had met the burden of proof and established
    the partial defence of infanticide.  The
    trial judge found the respondent not guilty on the charges of first degree
    murder and guilty on both counts of the included offence of infanticide.

V

The Issues

(a)

Is the Appeal an Abuse of Process?

[37]

Before turning to the issues as outlined above,
    I will address a preliminary argument made by Mr. Breen in his factum on behalf
    of the respondent.  He submitted that the
    Crown conceded at trial that infanticide was a partial defence to murder and
    should not be allowed to take a different position on a Crown appeal.  Mr. Breen asked that the appeal be dismissed
    as an abuse of process.

[38]

The Crown raised the interpretation of the
    infanticide provisions at the outset of the trial.  Crown counsel submitted that infanticide was
    not a partial defence to murder, but was only available as a potential included
    offence if murder was not made out.  Defence
    counsel took the contrary position.  The
    trial judge ruled that infanticide was available as a partial defence to
    murder.  The trial proceeded.

[39]

During the trial, the trial judge expressed some
    unease with the ruling he had made.  He
    suggested that he needed some help from counsel and that more detailed
    argument would be welcomed.  It is
    unclear from the trial judges comments whether he was referring specifically to
    his ruling that infanticide was a partial defence to murder.  I think it is fair to say that the trial
    judge was prepared to hear further argument on and reconsider any of the issues
    he had decided, including whether infanticide was a partial defence.

[40]

Neither the Crown nor the defence made any
    further arguments.  In closing
    submissions, Crown counsel accepted, in keeping with the trial judges ruling
    at the beginning of the
trial, that
infanticide could
    operate as a partial defence to murder.  At
    paras. 39-40 of his reasons for judgment, the trial judge reiterated his
    conclusion that infanticide was a partial defence to murder.

[41]

The Crown chose to abide by the ruling of the
    trial judge made at the outset of the trial and to proceed in accordance with
    that ruling.  That decision does not
    preclude the Crown from arguing on appeal, as it did at the outset of the
    trial, that infanticide was not a partial defence to murder.

(b)  Is
    Infanticide a Partial Defence to a Murder Charge?

(i)  The
    Crowns Argument

[42]

Ms. Woollcombe for the Crown, in able
    submissions, relies on a plain reading of ss. 233 and 662(3) of the
Criminal Code
.  She submits that those sections provide that
    infanticide is an indictable offence that may be charged as an offence in an
    indictment or left with the jury as an included offence on a charge of murder
    in appropriate circumstances.  She
    contends that there is nothing in the language of these provisions to support
    the claim that infanticide can also operate as a partial defence to reduce what
    would otherwise be murder to infanticide.

[43]

Ms. Woollcombe begins her analysis with the
    language of s. 233.  She submits that the
    section creates the indictable offence of infanticide  nothing more and
    nothing less.  Section 233 reads:

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.

[44]

Ms. Woollcombe contrasts the language of s. 233
    with the language of s. 232(1), which unquestionably recognizes provocation as
    a partial defence that reduces murder to manslaughter:

Culpable homicide that otherwise would be
    murder may be reduced to manslaughter
if the person who committed it did so in the heat of passion caused by
    sudden provocation.  [Emphasis added.]

[45]

Crown counsel asserts that absent language like
    culpable homicide that would otherwise be murder may be reduced to
    manslaughter, s. 233 cannot be read as providing a partial defence to murder
    as provocation undoubtedly does.

[46]

Crown counsel next refers to s. 662(3).  That section declares that infanticide is a
    statutorily included offence in a murder charge.  Crown counsel submits, however, that nothing
    in the language makes infanticide a partial defence capable of reducing murder to
    a lesser offence.  Section 662(3) provides:

[W]here a count charges murder and the evidence
    proves manslaughter or infanticide
but
    does not prove murder
,

the jury
    may find the accused not guilty of murder but guilty of manslaughter or
    infanticide, but shall not on that count find the accused guilty of any other
    offence.  [Emphasis added.]

[47]

As Ms. Woollcombe correctly points out, a lesser
    and included offence is, by its very nature, only considered by the jury if the
    full offence charged is not proved.  She argues
    that this self-evident relationship between the full crime charged and the
    potential lesser and included offence is made explicit in s. 662(3) by the
    words but does not prove murder.

[48]

Crown counsel also places s. 662(3) beside ss.
    610(2) and 610(4).  Sections 610(2) and 610(4)
    are procedural provisions that, taken together, preclude successive
    prosecutions for the same homicide charged as murder, manslaughter or
    infanticide.  Crown counsel submits that ss.
    610(2) and 610(4), read with s. 662(3)
,
ensure that an
    accuseds culpability in a homicide will be determined once and for all in a
    single prosecution.  She submits that
    nothing in these procedural provisions suggests that infanticide is a partial defence
    to murder.

[49]

Ms. Woollcombe also urges the court to refrain
    from judicially creating an infanticide defence.  She contends that the concept of infanticide,
    which reduces murder to a much less culpable homicide, 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.  She
    also argues that recognizing infanticide as a partial defence to murder would be
    inconsistent with the rationale underlying other justifications and excuses
    recognized as common law defences in the criminal law.

[50]

I assume that Ms. Woollcombe is referring to s.
    8(3) of the
Criminal Code
when she
    refers to judicially created defences.  I do not see this as a case where the court must decide whether to
    recognize a common law defence of infanticide.  This is a case of statutory interpretation.  If infanticide is a partial defence, it is
    because the
Criminal Code
, properly
    interpreted, provides for that partial defence.  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.  In the same vein, if the
Criminal Code
provides for the
    defence, it is irrelevant whether the defence is consistent with the rationale
    underlying common law criminal defences.

[3]

(ii)  The
    Proper Approach to Statutory Interpretation

[51]

Crown counsels interpretation of s. 233 and s.
    662(3) is supported by the language of those sections.  Statutory interpretation, however, requires
    more than a close reading and careful parsing of the words of the text of the
    specific sections in issue:
Re Rizzo & Rizzo Shoes
, [1998] 1
    S.C.R. 27, at para. 21;
Montr
é
al
    (City) v. 2952-1366 Qu
é
bec Inc.
, [2005] 3
    S.C.R. 141, at para. 9.  Statutory
    interpretation is a multi-faceted exercise that looks to the language used in
    the relevant provisions, the statutory context in which those provisions appear
    and the object and purpose of the provisions in issue:
Re
    Application under s. 83.28 of the Criminal Code
, [2004] 2 S.C.R. 248, at
    para. 34.  Professor Driedgers modern principle
    has become the accepted approach to statutory interpretation:

There is only one principle or
approach,
namely, the words of an Act are to be read in their entire context, in their
    grammatical and ordinary sense harmoniously with the scheme of the Act, the
    object of the Act, and the intention of Parliament.
[4]

[52]

I take
    the modern principle of statutory interpretation to mean that the words of a
    statute, like any other words, derive their meaning from their context in the
    broadest sense of that word:
R. v. Sharpe
, [2001] 1 S.C.R. 45, at
    para. 33;
Redeemer Foundation v. Canada
    (National Revenue)
, [2008] 2 S.C.R. 643, at para. 15;
R. v. Ahmad
, 2011 SCC 6, at para. 28.

(iii)  The
    Statutory Context:  The Homicide
    Provisions

[53]

The
Criminal
    Code
is the statutory context in which the infanticide provisions are found.  I will focus on the homicide related
    provisions in the
Criminal Code
.  Read together, those provisions provide a
    detailed, integrated statutory scheme of which infanticide is one part.  The homicide provisions constitute the
    relevant statutory context.

[54]

Section 222(1) defines homicide as causing the
    death of a human being by any direct or indirect means.  Homicides are culpable or non-culpable:
Criminal Code
, s. 222(2).  The former are criminal, the latter are not:
Criminal Code
, s. 222(3).  A person commits culpable homicide when that
    person causes the death of another person by one of the means described in s.
    222(5).

[55]

Section 222(4) divides culpable homicides into
    three different indictable offences: murder, infanticide and manslaughter.  Murder is defined in s. 229 and subdivided
    into first and second degree murder by s. 231.  All murders are punishable by a minimum sentence of life imprisonment:
Criminal Code
, s. 235.  Infanticide is defined in s. 233 and is
    punishable by a maximum of five years in prison:
Criminal Code
, s. 237.  There
    is no minimum punishment.  All culpable
    homicides that are neither murder nor infanticide are manslaughter:
Criminal Code
, s. 234.  Manslaughter is punishable by a maximum of
    life imprisonment:
Criminal Code
, s.
    236(b).  There is no minimum punishment for
    manslaughter unless a firearm is used in the commission of the manslaughter:
Criminal Code
, s. 236(a).

[56]

Murder and manslaughter are distinguished by the
    mental element required to prove murder.  Murder requires proof of an intention to kill (s. 229(a)(i)) or an
    appreciation that ones acts are likely to cause death (s. 229(a)(ii), s.
    229(c)).  Manslaughter does not require
    either an intention to kill or an appreciation that death may be caused by
    ones acts, but instead requires objective foreseeability of the risk of bodily
    harm:
R. v. Creighton
, [1993] 3
    S.C.R. 3, at pp. 44-45.  The requisite
    mental element required to prove murder is what makes murder more morally
    culpable than manslaughter and justifies the more punitive sentence.

[57]

Unlike murder and manslaughter, infanticide and
    murder are not distinguished by the required mental element.  Infanticide requires a wilful act or omission
    that causes death.  The conduct must also
    be culpable homicide within s. 222(5), meaning, in most cases, that the conduct
    must constitute either an unlawful act or criminal negligence:
Criminal
    Code
, ss. 222(5
)(
a) and (b).  As will be explained later in these reasons, although
    the mental element of infanticide is not limited to the intention to kill, an
    act or omission done with the intent necessary for murder will satisfy the
mens rea
component of infanticide.  The distinction between murder and infanticide
    lies more in the
actus
reus
than the
mens rea
.

[58]

Infanticide, as defined in s. 233, targets a
very
particularized form of culpable homicide.  The section has potential application only where
    a mother kills her newborn child, defined in the
Criminal Code
as a child
under
one year of
    age.  The potential application of
    infanticide is further limited by requiring that at the time of the homicide,
    the mothers mind must be disturbed, either because she is not fully
    recovered from the effects of giving birth or by reason of the effect of
    lactation.

[59]

The definition of infanticide focuses on two
    things.  First, it requires a
    mother-child relationship between the perpetrator and the victim.  Second, the mental state of the perpetrator/mother
    must be disturbed and that disturbance must be connected to the effects of
    giving birth or lactation.  Unlike other
    mental states that may mitigate criminal responsibility, infanticide does not
    require any causal connection between the disturbance of the mothers mind and
    the decision to do the thing that caused her childs death:
R. v. Guimont
(1999), 141 C.C.C. (3d)
    314 (Q.C.A.), at p. 317; E. Cunliffe, Infanticide:  Legislative History and Current Questions (2009)
    55 Crim. L.Q. 94, at pp. 112-113;  I.
    Grant, D. Chunn & C. Boyle,
The Law
    of Homicide
, loose-leaf (Scarborough: Carswell, 1995), at p. 4-91.  Because the mothers mental disturbance is
    not connected to the decision to kill, that disturbance is better considered
    as part of the
actus
reus
and not a
mens rea
component of the
    crime of infanticide.

[60]

The drastically different penalties available
    upon conviction for murder, manslaughter or infanticide reflect the very
    different levels of moral blameworthiness attached to each offence.  Clearly murder is regarded as the most
    blameworthy and infanticide as the least blameworthy.  Manslaughter occupies that vast middle ground
    of blameworthiness between the two extremes of murder and infanticide.  The very different penalties prescribed by Parliament
    for the offences of murder and infanticide leave no doubt that a mother who commits
    a culpable homicide that constitutes infanticide is regarded as having
    committed a much less serious crime than someone who committed murder.

[61]

Section 222(4) declares that culpable homicide
    is murder or manslaughter or infanticide.  Section 222(4) suggests that the three categories of culpable homicide
    are alternatives to each other, such that any specific culpable homicide will
    fit within one and only one of the three categories.  To properly place a particular culpable
    homicide in its appropriate category one must look to the definitions of murder
    and infanticide.  If the homicide does
    not fit within either of those specific definitions, by operation of s. 234, the
    homicide is categorized as manslaughter.

[62]

Infanticide is clearly a much more specific form
    of culpable homicide than murder.  In my
    view, it is arguable that, in categorizing a culpable homicide, one must begin
    with the narrower and more specific definition of infanticide.  If a homicide fits within that definition it
    is excluded by the operation of s. 222(4) from the broader category of culpable
    homicides defined as murder.  On this approach,
    a culpable homicide that is infanticide is not murder.  For the purpose of s. 662(3), the Crown fails
    to prove murder if the homicide is infanticide, thereby allowing a jury to return
    a verdict on the included offence of infanticide.  Counsel for the respondent and the
    intervener, in their helpful submissions, advance this interpretation.

[63]

I do not go so far as to agree with counsel that
    the reading of the homicide provisions as a whole compels the interpretation
    they have advanced as summarized immediately above.  I am satisfied, however, that placing s. 233
    and s. 662(3) in the broader context of the homicide regime renders the
    interpretation urged by Crown counsel considerably less obvious than it appears
    to be when those two sections are considered in isolation.   The
    exercise in statutory interpretation must go beyond the words of those sections
    even as read in the context of the other homicide provisions.

(iv) The
Legislative Evolution and
    History of the Infanticide Provisions

[64]

Tracing a statute from its common law and legislative
    roots to its current version can shed considerable light on the meaning of the
    present day provision.  In tracing that
    legislative genealogy, extrinsic aides, including statements in Hansard, can
    assist.  In looking to these aides,
    however, the interpreter must be cautious not to confuse the legislative purpose
    and intent, as expressed in the language of the statute, with a Ministers or other
    government officials stated understanding of that purpose or intent.  The latter is at best some evidence of the
    former:  R. Sullivan,
Sullivan on the Construction of Statutes
,
    5th ed. (Markham: LexisNexis, 2008), at pp. 577-93, 608-18.

[65]

The present infanticide provisions have a clear
    pedigree going back to the English
Infanticide
    Act, 1922

(U.K.), 12 & 13 Geo. V, c. 18
.
[5]
That legislation was replaced by the
Infanticide Act, 1938

(U.K.),
    1 & 2 Geo. VI, c. 36,
which remains in force in the United Kingdom today.  Amendments to that Act were proclaimed in
    force in October 2010 while this judgment was under reserve.  Infanticide first appeared in the
Criminal Code
in 1948.  Significant amendments were made to the
    infanticide provisions as part of the omnibus revision of the
Criminal Code
in 1954:
Criminal
    Code
, S.C. 1953-54, c. 51
(1953-54
Criminal Code
)
.  There
    have been no significant changes to those provisions since that time.  The evolution of the English legislation is
    set out in Appendix A to these reasons.  The recent English amendments are found in Appendix A1 and the
    evolution of the Canadian infanticide provisions is set out in Appendix B to
    these reasons.

[66]

Counsel have diligently collected extracts from
    the parliamentary debates in England and Canada, as well as other contemporary
    secondary sources, in an effort to provide insight into the purpose and intent
    of the initial English and Canadian legislation and the subsequent amendments
    to both pieces of legislation.  As will
    become evident, the amendments made to the
Criminal
    Code
in 1954 are the key to the interpretative exercise undertaken in these
    reasons.

(1) The English Legislation

[67]

The
Infanticide
    Act, 1922
(Appendix A) was the culmination of a long struggle for
    legislation that drew a distinction between mothers who killed their newborn
    children, often in most difficult circumstances, from other forms of culpable
    homicide.  Juries had demonstrated a
    strong reluctance to convict mothers who had killed their newborn children of murder.  At the time, murder carried a mandatory death
    penalty.  Juries would acquit mothers
    entirely or convict of substantially less serious charges, such as concealing
    the childs birth, even where the evidence left no doubt that the mother had
    killed her child:  see D. Seaborne
    Davies, Child-Killing in English Law in
The
    Modern Approach to Criminal Law: Collected Essays
(London, U.K.: MacMillan
    and Co., 1945) 301, at pp. 316-18; Law Commission,
A New Homicide Act for England and Wales?  A Consultation Paper
(Consultation Paper
    No. 177) (London: Law Commission, 2005), at paras. 9.5-9.6.

[68]

In the few cases where juries did convict,
    judges balked at engaging in what was described as a black cap farce,
    requiring judges to pronounce a death penalty knowing that the penalty was a monstrous
    overreaction to the crime and that it would never be carried out.  This solemn mockery was said to do nothing
    other than terrorize the mother on whom it was pronounced as she was probably the
    only person in the courtroom who did not know that the penalty would never be carried
    out: Davies, at p. 319; Law Commission,
A
New Homicide Act for
    England and Wales?  A Consultation Paper
,
    at paras. 9.5-9.7; Law Commission,
Murder,
    Manslaughter and Infanticide
(Law Com. No. 304) (London: Law Commission,
    2006), at paras. 8.13-8.14.

[69]

The
Infanticide
    Act, 1922
defined infanticide in terms
that are
similar to the present definition in Canada.  That definition established the often criticized connection between mothers
    who kill their newborn children and mental disturbance attributed to the act of
    giving birth.  The
Infanticide Act,

1922
further
    provided that those convicted of infanticide were to be sentenced as if guilty
    of manslaughter.  The legislation thereby
    removed the mandatory death penalty and gave trial judges a wide sentencing
    discretion that would permit the imposition of a sentence that accurately
    reflected the mothers culpability in the specific circumstances of the case.
[6]

[70]

Section 1(2) of the
Infanticide Act, 1922
made it clear that infanticide operated as a
    partial defence to a murder charge.  The
    section provided that on a murder trial where the jury was satisfied that
    infanticide was made out, the jury could:

[N]otwithstanding that the circumstances were such
    that but for this Act the offence would have amounted to murder, return in lieu
    thereof a verdict of infanticide.

[71]

In carving infanticide out from the definition
    of murder and treating it as a distinct and less culpable offence, Parliament attempted
    to bring the law into line with the communitys sense of fairness and justice
    as expressed through the verdicts of numerous juries:  see P. Devlin,
Trial by Jury
(London: Stevens & Sons, 1956), at p. 160.  The creation of a distinct, less culpable
    form of homicide, applicable to mothers who killed their newborns while
    suffering a mental disturbance related to birth, is an example of the
    application of the principle of fair labelling in criminal law.  The fair labelling principle dictates that
    two types of conduct that are both regarded by the community as worthy of a criminal
    sanction, but are seen as significantly different in terms of culpability, should
    be identified and treated as different substantive crimes subject to different
    penalties that reflect the different level of moral culpability.  Fair labelling promotes public confidence in
    and support for the administration of criminal justice:  A. Ashworth,
Principles of Criminal Law
, 5th ed. (Oxford: Oxford University
    Press, 2006), at pp. 88-90.

[72]

The
Infanticide
    Act, 1922
was replaced by the
Infanticide
    Act, 1938
(Appendix A).  The
Infanticide Act, 1938
maintains
    infanticides unique status as both a separate offence and a partial defence to
    murder:
R. v. Gore
, [2007] EWCA Crim 2789, at para. 20; Law Commission,
Murder, Manslaughter and Infanticide
, at
    paras. 8.6-8.8. That unique status is unaffected by the 2010 amendments to the
Infanticide Act, 1938
:  see Appendix A1.

(2)  The Canadian
    Legislation

[73]

The debates in Hansard preceding the first
    Canadian infanticide legislation in 1948 demonstrate that the same factors that
    motivated the English legislation in 1922 were at play in Canada in 1948:  see
House
    of Commons Debates
, 1948, Vol. V (June 14, 1948), at pp. 5184-87.  Like their English counterparts, Canadian
    juries were reluctant to brand mothers as murderers, many of whom were very young,
    emotionally distraught, and in dire social and economic circumstances at the
    time of the homicide.  As in the United
    Kingdom, the death penalty was mandatory for all murders in Canada in 1948.

[74]

The initial Canadian legislation (Appendix B) closely
    tracked the
Infanticide Act, 1922
, even
    to the point of ignoring the changes made by the
Infanticide Act, 1938
.  Section 262(2) introduced infanticide into the
Criminal Code
and, like its English counterpart, tied the concept
    to mental disturbance arising from the act of giving birth:

A woman who by wilful act or omission causes the
    death of her newly born child
shall be
    deemed not to have committed murder or manslaughter
if at the time of the
    act or omission she had not fully recovered from the effect of giving birth to
    such child and by reason thereof the balance of her mind was then disturbed,
    but shall be deemed to have committed an indictable offence, namely,
    infanticide.  [Emphasis added.]

[75]

Unlike the English legislation, the Canadian
    provisions did not treat infanticide as manslaughter for the purposes of
    sentencing.  Instead, s. 268A provided
    for a maximum penalty of three years imprisonment.  The three-year maximum penalty for
    infanticide clearly marked it as significantly less culpable than murder, and
    less culpable even than manslaughter.

[76]

Section 262(2) expressly declared that culpable
    homicide that fell within the definition of infanticide was to be deemed not
    to be murder or manslaughter.  I take the
    word deemed to signal that Parliament intended that culpable homicides which
    had formerly constituted murder or manslaughter should now be regarded by law
    as infanticide and not murder or manslaughter if those homicides fell within
    the language of the infanticide provision.  Consequently, for the purposes of applying the included offences
    provision in s. 951(2) (now s. 662(3)), a culpable homicide that fell within
    the definition of infanticide was deemed not to be murder, meaning that the
    Crown had failed to prove murder if the homicide came within the definition of infanticide.
     As murder had not been proved, it was
    open to the jury under the included offence provision to return a verdict on
    the included offence of infanticide.  I
    think the 1948 legislation, while perhaps not as clearly worded as the
Infanticide Act, 1922
, nonetheless makes
    it clear that infanticide was brought into the
Criminal Code
as both a stand alone indictable offence and a
    partial defence to a murder charge.

[77]

I come now to the amendments made to the
    infanticide provisions
in the 1953-54
Criminal Code
(Appendix B)
.  Those amendments were part of the
    comprehensive overhaul of the
Criminal
    Code
that began with the creation in 1949 of a Royal Commission to revise
    the
Criminal Code
.  The Commissioners were charged with the
    daunting task of modernizing a
Criminal
    Code
that had become unwieldy after decades of
ad hoc
amendments.  The terms
    of reference included:

·

revising ambiguous and unclear provisions;

·

adopting uniform language;

·

eliminating inconsistencies, legal anomalies and
    defects;

·

rearranging provisions;

·

seeking to simplify by omitting and combining
    provisions;

·

making the
Criminal
    Code
an exhaustive statement of the criminal law; and

·

effecting
procedural
    amendments deemed appropriate for the speedy and fair enforcement of the
    criminal law:  see Royal Commission on
    the Revision of the Criminal Code,
Report
    of Royal Commission on the Revision of the Criminal Code
(Ottawa: Queens
    Printer, 1954).

[78]

Counsel, particularly Mr. Breen and Mr. Fleming,
    have diligently tracked the progress of the
Criminal
    Code
revision from the appointment of the Commission to the first draft,
    and through proclamation:  see A.J.
    MacLeod & J.C. Martin, Offences and Punishments under the New
Criminal Code
 (1955) 33 Can. Bar Rev.
    20; A.J. MacLeod & J.C. Martin, The Revision of the
Criminal Code
 (1955) 33 Can. Bar Rev. 3.

[79]

Five changes to the infanticide provisions can
    be found in the over 750 sections making up the new
Criminal Code
.  I think only
    one of the five amendments is germane to the present inquiry.  That amendment removed the phrase, shall be
    deemed not to have committed murder or manslaughter from the section defining
    infanticide.  I will, however, describe
    the other four amendments before addressing the deletion of the deeming
    provision from the definition of infanticide.

[80]

The penalty for infanticide was increased from
    three to five years as part of the standardization of maximum penalties under
    the
Criminal Code
:  1953-54
Criminal Code
, s. 208.  That
    standardization eliminated potential maximums between two and five years:
House
    of Commons Debates
, 1953-54, Vol. III (February 25, 1954), at p. 2446.  In my view, the increase in maximum penalty
    does not speak to any reassessment of the blameworthiness of the crime of
    infanticide.

[81]

The phrase, newly born child was defined as a
    child
under
one year of age.  This amendment corresponded to an amendment
    made by the
Infanticide Act, 1938
in
    England, and overrode the narrow meaning that had been given to the phrase,
    newly born child by the English and Canadian courts:
R. v.
    ODonoghue
(1928), 20 Cr. App. R. 132 (C.A.);
R. v. Marchello
(1951), 100 C.C.C. 137 (Ont. H.C.).  There was no mention of this amendment in the
    debates.

[82]

The amendments also introduced the effect of
    lactation as a second source of mental disturbance that could support the
    offence of infanticide.  This amendment was
    also taken from the
Infanticide Act, 1938
that had introduced the effect of lactation into the English infanticide law.
[7]
This amendment drew no debate.

[83]

The 1954 amendments also introduced s. 570 into
    the
Criminal Code
.  That amendment, unlike the amendments referred
    to above, was a Canadian original and does not appear to have any counterpart
    in other commonwealth legislation.  Section 570 (now s. 663) provided:

Where a female person is charged with infanticide
    and the evidence establishes that she caused the death of her child but does
    not establish that, at the time of the act or omission by which she caused the
    death of the child,

(a)

she was not fully recovered from the effects of
    giving birth to the child or from the effect of lactation consequent to the
    birth of the child, and

(b)

the balance of her mind was, at that time,
    disturbed by reason of the effect of giving birth to the child or the effect of
    lactation consequent on the birth of the child,

she
may be convicted unless
    the evidence establishes that the act or omission was not wilful.

[84]

Section 570 was a direct response to the criticisms
    of the 1948 legislation made by Chief Justice McRuer in
Marchello
at pp. 141-42.  In that
    case, a woman was charged with murdering her four and a half month old child.  She was found not guilty on account of
    insanity.  Chief Justice McRuer did not
    leave infanticide with the jury as, in his
view,
a four
    and a half month old child was not a newly born child within the meaning of
    the infanticide provision.  After the
    trial was completed, Chief Justice McRuer delivered a judgment that had nothing
    to do with the facts in
Marchello
,
    but was a cogent criticism of the infanticide provision.  He observed that where a mother was charged
    with infanticide (not the charge in
Marchello
),
    she would be acquitted outright if the Crown failed to prove either aspect of the
    mental disturbance component of infanticide.  This could mean that a mother who intentionally, and after calm and careful
    consideration, decided to kill her child, would escape criminal liability altogether
    if charged only with infanticide.

[85]

Section 570 sought to correct the shortcomings
    identified in
Marchello
.  It is an unusual, if not unique, provision in
    the
Criminal Code
.  Section 570 (now s. 663) not only absolves
    the Crown from proving an element of the offence of infanticide (the mental
    disorder component)
,
it also appears to transfer the
    onus of proof on the issue of wilfulness to the defence.
[8]

[86]

There are potential constitutional problems with
    s. 570 (now s. 663).  Those problems do
    not arise in this case.  By its terms, s.
    570 applies only where a female person is charged with infanticide.  The respondent was charged with first degree
    murder, not infanticide.  Where the Crown
    proceeds on a murder charge, there is no danger that the mother will escape
    liability if the only thing lacking in the Crowns case is evidence of a mental
    disturbance arising out of the birth of the child.  Assuming the Crown proves beyond a reasonable
    doubt that the mother caused the childs death by an unlawful act, any absence
    of evidence supporting a mental disturbance required for infanticide would lead
    either to a murder or manslaughter conviction, depending on whether the Crown
    proved the
mens rea
for murder.

[87]

Section 570 (now s. 663) was designed to deal
    with a very specific problem that arose only in cases where infanticide was the
    charged offence.  That section does not assist
    me in determining whether Parliament intended to remove infanticide as a
    partial defence to murder when it amended the infanticide provisions in 1954.

[88]

The final and, for present purposes, important
    amendment to the infanticide provisions is best demonstrated by comparing the
    language of s. 204 in the 1953-54
Criminal
    Code
with the language in its predecessor provision, s. 262(2).  I have highlighted the portions deleted from
    the earlier legislation by the amendment:

Section 262(2)

Section 204

A woman who by wilful act or omission causes the
          death of her newly born child
shall be
          deemed not to have committed murder or manslaughter
if at the time of the
          act or omission she was not fully recovered from the effect of giving birth
          to such child and by reason thereof the balance of her mind was then
          disturbed,
but shall be deemed to have
          committed an indictable offence, namely, infanticide.

A female person commits infanticide when by 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 the effect of lactation
          consequent on the birth of the child her mind is then disturbed.

[89]

Section 204 removed both deeming provisions from
    s. 262(2).  The removal of the second
    deeming provision, but shall be deemed to have committed an indictable
    offence, namely, infanticide effected no substantive change.  The deleted language was replaced by the clearer,
    straightforward phrase, a female person commits infanticide when ... that
    appears at the beginning of s. 204.

[90]

The removal of the phrase shall be deemed not
    to have committed murder or manslaughter from the infanticide provision is
    more problematic.  That phrase had made
    it clear that infanticide acted as a partial defence to murder by declaring
    that a culpable homicide that was infanticide would be deemed not to be
    murder.  The removal of the deeming
    language obscures that intention to some extent.

[91]

In determining whether the removal of the
    deeming language meant that infanticide was not a partial defence to murder, I start
    from the premise that, for the reasons outlined above, it was Parliaments
    intention to make infanticide a partial defence to murder under the 1948
    legislation.  The Crown must convince the
    court that the removal of the deeming language signalled Parliaments intention
    to fundamentally alter the nature of infanticide by removing it as a potential partial
    defence to murder.  If that was indeed
    the purpose behind the removal of the deeming language, it seems to me that
    Parliament chose to achieve its purpose in a somewhat indirect fashion.

[92]

In assessing the effect of the 1954 amendment, I
    bear in mind that infanticide had been introduced into the
Criminal Code
only about six years earlier.  That introduction was precipitated by the perceived
    need to give juries trying murder cases involving mothers who killed their
    children an alternative to a murder verdict that more accurately reflected the
    jurys sense of the true culpability of the mother.

[93]

On the Crowns argument, by removing the deeming
    provision, Parliament effectively undid the very purpose for which the
    infanticide provision had been introduced six years earlier.  If the Crown is correct, juries facing
    mothers charged with murder after the 1954 amendments would find themselves back
    in exactly the same predicament that juries had faced prior to the introduction
    of the infanticide law in 1948.  If the
    Crown proved the essential elements of murder, the jury would be required to
    convict of murder even though the circumstances brought the offence within the
    less blameworthy crime of infanticide.  It
    would take strong evidence to satisfy me that Parliament intended to abandon
    the very purpose behind the infanticide legislation less than six years after
    enacting that legislation, and that it intended to give to the prosecutorial
    authorities, through their charging discretion, the exclusive power to
    determine whether a mother who killed her newborn child could be convicted of
    infanticide and not murder.

[94]

There is a presumption that when Parliament
    changes legislation it does so for a purpose.  That purpose may, however, vary from benign housekeeping concerns to the
    intention to make a fundamental change in the law:  Sullivan, at pp. 579-86.  The nature of the legislation effecting the
    amendment can assist in determining the purpose behind any specific
    change.  Referring specifically to the
    amendments made to the
Criminal Code
in 1954, Professor Sullivan has commented, at p. 585:

Particularly where an older statute is given a major
    overhaul, as was the case with the 1953-54
Criminal
    Code
,
it may be clear that even
    dramatic changes in wording are meant to simplify or otherwise modernize the
    style rather than to change the substance of the provision.
[Emphasis added.]

[95]

I find nothing in the debates surrounding the
    introduction
of the 1953-54
Criminal Code
referring to the deletion of the deeming
    language from the infanticide provision, much less anything suggesting that, in
    doing so, Parliament intended to remove infanticide as a partial defence to
    murder.  Nor have I found anything in the
    secondary sources contemporary to the amendments suggesting Parliament intended
    to remove infanticide as a partial defence.  For example, J.C. Martin, Q.C., the editor of
Martins Criminal Code 1955
(the first
Martins

Criminal Code
),
    outlined the amendments made by the 1953-54
Criminal

Code
at length in his introduction (Toronto:
    Cartwright & Sons, 1955).  At pp.
    10-11, he described the changes to the infanticide amendments.  His commentary does not suggest any change in
    the fundamental nature of infanticide.  In his comments under the infanticide section itself, Mr. Martin
    observes, at p. 392: The present section, with the definition mentioned, [the definition
    of newly born child] is taken from the
Infanticide
    Act, 1938
, (U.K.).

[96]

Mr. Martin was a member of the Royal Commission
    charged with the task of revising the
Criminal
    Code
, and one of the drafters of the revision.  I would not have expected Mr. Martin to
    connect the 1954 amendments to the
Infanticide
    Act, 1938
, which clearly recognized infanticide as a partial defence to
    murder, if Mr. Martin perceived that the 1954 amendments had removed
    infanticide as a partial defence.

[97]

The 1953-54
Criminal Code
did not alter the
    tripartite division of culpable homicide into murder, manslaughter and
    infanticide created by the infanticide amendments in 1948.  Nor did it alter the very different levels of
    culpability applicable to each of the forms of culpable homicide as represented
    by the potential penalties.  Parliament clearly
    intended to maintain the distinction between homicides that constituted murder
    and the much narrower category of homicides that constituted infanticide.  That distinction, unlike the distinction between
    murder and manslaughter, did not depend on the mental element, but turned on
    the existence of specific facts peculiar to infanticide.

[98]

Treating infanticide as a partial defence to
    murder is consistent with the distinction drawn between infanticide and murder
    by Parliament.  It allows juries to draw
    that distinction in cases where mothers are charged with murdering their
    children and evidence brings the homicide within the very narrow factual
    confines of infanticide.  Eliminating infanticide
    as a partial defence effectively allows the Crown to remove the distinction
    between infanticide and murder through the exercise of its charging
    discretion.

[99]

My application of the modern principle of
    statutory interpretation leads me to conclude that Parliament intended to make
    infanticide a partial defence to murder when it introduced infanticide into the
Criminal Code
in 1948.  Parliament did not intend to alter the status
    of infanticide by the 1954 amendments.  Infanticide was initially, and still is, both a stand alone indictable
    offence and a partial defence to a charge of murder.

[100]

Guimont
, the only appellate authority
    that has commented on the nature of infanticide, is consistent with my
    interpretative analysis.  The academic commentary
    also supports my conclusion.

[101]

In
Guimont
, Proulx J.A., an eminent
    criminal law lawyer and jurist, writing for a unanimous court, described infanticide
    as a defence on a murder charge.  He
    held, at p. 319, that infanticide, just like any other defence, should be left
    with the jury where the evidence gave that defence an air of reality.  Proulx J.A. did not examine the nature of the
    defence of infanticide at length as it would appear that the Crown accepted
    that infanticide could be a partial defence to murder.
[9]

[102]

Professor
    Grant addresses the interpretative problem directly in her recent article, Desperate
    Measures:  Rationalizing the Crime of
    Infanticide (2010) 14 Can. Crim. L. Rev. 253.  She observes, at pp. 262-63:

In my view, not only should section 662(3) be
    interpreted as permitting a finding of infanticide even when murder is proved,
    section 233 should be read as providing that where the elements of infanticide
    are present, the offence is infanticide
and
    not murder
.  This interpretation is
    not re-writing section 233 but rather giving it an interpretation that provides
    both murder and infanticide with a role to play in the scheme of culpable
    homicide.  In other words, a finding of
    infanticide should rule out a finding of murder.  This is in fact how the original infanticide provision
    was drafted in Canada

The removal of the reference to manslaughter and
    murder was part of a revision of form that was not intended to change the
    substance of the offence of infanticide.
[Emphasis in
    original.]

[103]

Professor
    Grants view is echoed in other Canadian academic commentary, although it must
    be said that most commentators engage in little, if any, analysis of the issue:  Cunliffe, at p. 103; Fitch, at p. 13; S.
    Anand, Rationalizing Infanticide:  A
    Medico-Legal Assessment of the
Criminal
    Codes
Child Homicide Offence (2010) 47 Alta. L. Rev. 705, at p. 707.

[104]

It
    has been the accepted wisdom in Canada since infanticide became part of the
    criminal law that it operates as both an offence and a partial defence to
    murder.  There is merit to the Crowns
    claim that infanticide has operated in this dual capacity more by way of
    assumption than as a result of any critical analysis of the relevant
Criminal Code
provisions.  This appeal has forced that critical
    analysis.  I am satisfied that the
    analysis supports the long held assumption.  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.
[10]

VI

The Other Issues

[105]

My
    conclusion that the trial judge correctly held that infanticide operates as a
    partial defence to murder decides this appeal against the Crown.  The trial judge found that the respondent had
    made out the defence even though he put the onus on the respondent to establish
    the defence on the balance of probabilities.  Although the resolution of this appeal does not require that the court
    address the other two issues
raised
in argument, those
    issues are integral to the proper interpretation of the infanticide provisions.  Given the detailed and thoughtful arguments
    of counsel, the present uncertainty in the law, and the unlikelihood that the
    matters will come back before the court in the near future, I think the court
    should take this opportunity to resolve those issues.

(a)

The
Mens Rea
Requirement for Infanticide

[106]

For
    convenience, I repeat s. 233:

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.

[107]

Counsel
    for the respondent and the intervener submit that infanticide requires proof of
    the same
mens rea
required to prove
    murder under s. 229(a); that is an intention to kill, or an intention to cause
    bodily harm knowing that it is likely to cause death and being reckless as to
    that result.  In making this argument, counsel
    rely on the word wilful in s. 233, the language of the 1948 provision, an
obiter
statement in
Creighton
, and trial decisions,
e.g.

R. v. Smith
(1976), 32 C.C.C. (2d)
    224 (Nfld. Dist. Ct.), at pp. 230-31;
R.
    v. Del Rio
, [1979] O.J. No. 16 (H.C.), at para. 46.  Most of the Canadian academic literature also
    favours a
mens rea
for infanticide
    akin to that required for murder:  see
    Cunliffe, at pp. 113-16; Anand, at pp. 716-18; Boyle et al., at 4-91 to 4-93.
[11]

[108]

The
    respondents and interveners reliance on the word wilful in s. 233 is
    understandable.  Wilful is a strong
mens rea
word and can be understood to
    require proof of an intention to bring about the prohibited consequence,
e.g.
death, even where, as in s. 233, on
    a plain grammatical reading wilful modifies the phrase act or omission and
    not the phrase causes death:
R. v. Docherty
, [1989] 2 S.C.R. 941, at
    pp. 949-50; M. Manning & P. Sankoff,
Manning,
    Mewett & Sankoff: Criminal Law
, 4th ed. (Markham: LexisNexis, 2009), at
    p. 173.  However, the
Criminal Code
is notoriously
    inconsistent in the manner in which it uses
mens
    rea
words.  This court has recognized
    that wilful can have different meanings in different sections of the
Criminal Code
:
R. v.
    Buzzanga and Durocher
(1979), 25 O.R. (2d) 705 (C.A.), at p. 717.

[109]

In
Buzzanga
, this court stressed that
    the meaning of wilful in one section of the
Criminal Code
could be influenced by the
mens rea
language of clearly related
Criminal Code
provisions.  The
mens rea
for murder is
    expressly set out in the language of s. 229(a).  The word wilful is not used.  The use of very different
mens rea
language in s. 229, as compared to the word wilful in s. 233, suggests that Parliament
    did not intend to equate the
mens rea
required for murder (s. 229) with the
mens
    rea
required for infanticide (s. 233).  While the word wilful figures in any analysis of the
mens rea
for infanticide, I do not think
    that word alone is determinative of the
mens
    rea
required for infanticide.

[110]

I
    also cannot accept that the comment by McLachlin J. in
Creighton
has determined the
mens
    rea
of infanticide.
Creighton
was a case about the
mens rea
of manslaughter and the
    constitutionality of that offence.  McLachlin J. introduced her examination of the
mens rea
of manslaughter with this observation, at pp. 41-42:

The
Criminal
    Code
defines three general types of culpable homicide.  There is murder, the intentional killing of
    another human being.  There is
    infanticide, the intentional killing of a child.  All other culpable homicides fall into the
    residual category of manslaughter.

[111]

I
    cannot read the single sentence referable to infanticide in
Creighton
as a definitive and all
    encompassing description of the
mens rea
of that offence.  The case had nothing to
    do with infanticide.  I take the sentence
    to be merely an indication that an intentional killing of a child can be
    infanticide.  That is not the same thing
    as saying that to constitute infanticide, the killing of the child must be
    intentional in the same way that murder must be intentional.

[112]

The
    analysis of the
mens rea
requirement
    for manslaughter in
Creighton
at pp. 45-49
    does, however,
provides
assistance as to the approach
    to be taken in determining the
mens rea
for infanticide.  In considering whether foresight
    of bodily harm, the
mens rea
required
    for manslaughter, met constitutional standards, McLachlin J., for the majority,
    observed that the
mens rea
of an
    offence should reflect the gravity of the crime and the societal stigma
    attached to the commission of the particular crime.  The penalties provided by Parliament afforded
    a measure of the gravity of an offence and the stigma associated with its
    commission.  McLachlin J. concluded that
    as manslaughter, unlike murder, carried no mandatory sentence, a
mens rea
that did not require proof of
    intention was consistent with the gravity of the offence and the stigma
    attached to the commission of the offence by the community.

[113]

The
    five-year potential maximum penalty for infanticide is far removed from the
    mandatory minimum life sentence for murder and is significantly less than even the
    maximum penalty of life imprisonment available for manslaughter.  To the extent that the potential penalty
    provides insight into the requisite
mens
    rea
, the five-year maximum penalty for infanticide strongly suggests a
mens rea
closer to the manslaughter requirement
    of foresight of harm than to the murder requirement of an intention to kill or
    foresight of probable death.

[114]

Considering
    the homicide provisions as a whole and the obvious hierarchy created by those
    provisions, I do not think that the infanticide provision can be read as
    requiring proof of the same
mens rea
as that required for murder.  Instead, a
mens rea
for infanticide akin to that
    for manslaughter is much more consistent with the hierarchy of culpable
    homicides established in the
Criminal
    Code
.  In my view, infanticide as a
    form of culpable
homicide,
should require the
mens rea
required for manslaughter.  There is nothing inherent in the seriousness
    of the offence or the stigma attached to it which requires the imposition of a
    higher
mens rea
like that required
    for murder.  That, of course, is not to
    say that a mother who intends to kill her child is, therefore, not guilty of
    infanticide.  Clearly, a person who intends
    to kill foresees the risk of bodily harm to the child and, therefore, has the
    required
mens rea
for either
    manslaughter or infanticide.

[115]

If
    infanticide was read as requiring proof of the same
mens rea
as murder, circumstances could produce anomalous
    results.  For example, if infanticide
    requires the
mens rea
for murder, a
    mother who intends to kill her child but whose conduct comes within the meaning
    of infanticide would be convicted of infanticide, the least culpable form of culpable
    homicide.  A second mother, whose conduct
    also comes within the meaning of infanticide, but who was
so
emotionally distraught as to be incapable of forming the intention for murder, could
    not be convicted of infanticide but would instead be convicted of manslaughter,
    a more serious offence.  Surely, a mother
    who does not intend to kill her child should not be regarded as having
    committed a more culpable homicide than the mother who did have that intention.  This anomaly disappears if the
mens rea
for infanticide captures both
    the mother who intends to kill and the mother who unlawfully assaults her child
    in circumstances where bodily harm to the child is foreseeable.

[116]

There
    is a second, and I think significant, practical problem with treating the
mens rea
for infanticide as the same as
    that required for murder.  Infanticide
    requires evidence that the mother
s
    mind was disturbed at the time of the homicide.  Evidence proffered by the defence to meet the
    evidentiary burden on that issue will, in some cases,
cast doubt on
    whether the mother intended to kill her child.  If infanticide operates as a partial defence to murder only where the
mens rea
for murder exists, the very
    same evidence offered to bring the mother within the infanticide defence could push
    her outside of that defence by negating the intention to kill or the existence
    of foresight as to the likelihood of death.  If the
mens rea
for
    infanticide is interpreted as including the
mens
    rea
required for murder or manslaughter, the defence is not put in the
    position of offering evidence of the mother

s mental state that could simultaneously support and
    undermine the infanticide defence.

[117]

I
    think treating the
mens rea
for
    infanticide as reaching not only an intention to kill, but also objective
    foresight of bodily harm, provides a coherent and comprehensive reading of the
    homicide provisions that best reflects the relative seriousness of the three
    levels of culpable homicide created in the
Criminal
    Code
.  This approach does give the
    word wilful a meaning that is somewhat inconsistent with its customary
    meaning.  I am satisfied, however, that a
    coherent and workable reading of s. 233 in the context of the homicide
    provisions supports my interpretation of the word wilful in this context.

[118]

Although
    I reach my conclusion as to the
mens rea
of infanticide based on the language of the present
Criminal Code
, I am fortified in that view by the language of the
    original provision in 1948 (Appendix B).  Section 262(2) provided that a woman who committed what was defined as
    infanticide shall be deemed not to have committed murder or
    manslaughter.  That section contemplated
    that infanticide, the new category of culpable homicide, would include
    homicides that had previously been murders or had previously been
    manslaughters.  The intention to cover
    both is even clearer when one bears in mind that the
Infanticide Act, 1922
in England referred only to homicides that
    would have amounted to murder in the provision creating infanticide.
[12]

[119]

Lastly,
    I draw support for my conclusion concerning the
mens rea
of infanticide from the recent decision of the English
    Court of Appeal in
R. v. Gore
,

[2007] EWCA Crim 2789, the only
    appellate decision of which I am aware in this country or England that has
    addressed the
mens rea
of
    infanticide.  The courts interpretation
    focused on the words wilful act or omission and notwithstanding that the
    circumstances were such that but for this act the offence would have amounted
    to murder in s. 1(1) of the
Infanticide
    Act, 1938
.  The court concluded, at paras.
    33-34:

We are
    satisfied that Parliament intended to create a new offence of infanticide which
    covered situations much wider than offences that would otherwise be murder.
If the criteria in subsection (1) [
Infanticide Act, 1938
] are fulfilled,
    the mother who kills her child does not have to face an indictment for
    murder.  She faces a lower grade criminal
    charge, namely infanticide.

The
mens rea
for the offence of infanticide is contained, as we see it, explicitly in the
    first few words of section 1(1), namely the prosecution must prove that the
    defendant acted or omitted to act wilfully.  There is no reference to any intention to kill or cause serious bodily
    harm. [Emphasis added.]

[120]

In
    his case comment on
Gore
, Professor
    Ashworth suggests that while the
mens rea
of infanticide had seldom been discussed in England, the assumption had been
    that it mirrored the
mens rea
for
    murder.  Professor Ashworth describes the
    Court of Appeals interpretation as a benevolent and desirable interpretation.  He posits the rhetorical question why should
    the mother whose offence would otherwise be unlawful act manslaughter not have
    the benefit of the infanticide offence?
:
see A. Ashworth, Infanticide: Whether Mens
    Rea of Infanticide Consists of an Intention to Kill or Cause Grievous Bodily
    Harm (2008) 5 Crim. L. R. 388, at pp. 390-91.
[13]

[121]

For
    the reasons set out above, I do not think that the
mens rea
for infanticide can be equated with the
mens rea
for murder.  In my view, to prove infanticide, the Crown
    must establish the
mens rea
associated
    with the unlawful act that caused the childs death and objective
    foreseeability of the risk of bodily harm to the child from that assault.  On this approach, it is the unique
actus
reus
of
    infanticide that distinguishes it from murder and manslaughter.  Those distinctions are what caused Parliament
    to treat infanticide as a culpable homicide, but one that was significantly
    less culpable than murder and even manslaughter.  The presence of the
mens rea
for murder, while not negating the partial defence of infanticide,
    is not a condition precedent to the existence of that partial defence.

(b)

The
    Onus of Proof

[122]

The
    trial judge, having determined that infanticide was a partial defence to murder
    akin to provocation, went on to hold at para. 49:

[A]n accused person who seeks to rely on the defence
    of infanticide must bear the burden of proving its elements on a balance of
    probabilities (just as an accused who seeks to rely on s. 16 or automatism, or
    extreme intoxication must do) and accordingly, in my analysis, I will require
    the accused in the case at bar to do so.

[123]

Although
    the trial judge referred to the elements of infanticide, I think it is clear
    that he was referring to the mental disorder component of the defence and not
    to all elements of infanticide.

[124]

It
    is important to stress that the trial judge was addressing onus in the context
    of infanticide as a partial defence and not in the context of infanticide as a
    stand alone charge.  The onus of proof
    where infanticide is charged raises different questions in light of s.
    663.  Those questions do not arise on
    this appeal.  Like the trial judge, my
    reasons address the onus exclusively in reference to the partial defence of
    infanticide.

[125]

The
    presumption of innocence, constitutionally protected by s. 11(d) of the
Canadian Charter of Rights and Freedoms
,
    requires that the Crown prove the essential elements of the crime alleged
    beyond a reasonable doubt.  It also
    requires that the Crown negate potential defences to the same standard of
    proof:  see
R. v. Whyte
, [1988] 2 S.C.R. 3, at p. 18;
R. v. Keegstra
, [1990] 3 S.C.R. 697, at pp. 789-90;
R. v. Wholesale Travel Group
, [1991] 3
    S.C.R. 154, at pp. 195-97.  Thus, for
    example, on a murder charge where there is evidence of provocation, s. 11(d)
    requires both that the Crown prove the essential elements of murder beyond a
    reasonable doubt and that it prove beyond a reasonable doubt that the defence
    of provocation is not available.  To
    negate the defence of provocation, the Crown must prove beyond a reasonable
    doubt that at least one of the constituent elements of the defence is not
    available on the evidence:  D. Stuart,
Canadian Criminal Law:
A
Treatise
, 5th ed. (Scarborough: Thomson Carswell, 2007), at pp. 570-71;
R. v. Tran
, 2010 SCC 58, at para. 81.

[126]

As
    the trial judge appreciated, any deviation from the requirement that the Crown
    bear the burden of proof is a
prima facie
violation of s. 11(d), and is constitutional only if justified under s. 1 of
    the
Charter
which provides:

The
Canadian
    Charter of Rights and Freedoms
guarantees the rights and freedoms set out
    in it subject only to such reasonable limits prescribed by law as can be
    demonstrably justified in a free and democratic society.

[127]

Placing
    the burden on the accused to establish infanticide can pass constitutional
    scrutiny only if the reallocation of the burden is prescribed by law.  The trial judge did not address this
    issue.

[128]

In
R. v. Effert
(2009), 244 C.C.C. (3d)
    510 (Alta. Q.B.), Veit J. declined to follow the trial judges ruling in this
    case and held that the Crown bore the burden to disprove the partial defence of
    infanticide.  In her analysis (paras.
    13-18), she doubted whether a judge-made requirement that the accused establish
    the necessary disturbance of the mind on the balance of probabilities could be
    said to be a limit on the presumption of innocence prescribed by law.  I share her doubts.
[14]

[129]

A
    limit on a
Charter
right may be found
    in a statute or other legislative instrument either expressly or by necessary
    implication:
R. v. Swain
, [1991] 1 S.C.R. 933, at p. 968;
R. v. Thomsen
, [1988] 1 S.C.R. 640, at pp. 650-55.  The infanticide provisions do not contain any
    express reversal of the burden of proof or otherwise purport to limit the
    application of s. 11(d) of the
Charter
.  Nor can any limit be read by necessary
    implication into any statutory provision relevant to infanticide.  Section 16(4), which reverses the onus where
    an accused raises an insanity defence, has no application to
    infanticide.  As Veit J. explains,
    infanticide is
sui generis
 and
    cannot be viewed as a variation on the mental disorder requirement of the
    insanity defence:
Effert
, at para. 17.  The
    reversal of the burden where insanity is raised does not imply anything about
    the appropriate burden where infanticide is raised.

[130]

A
s. 1 limit on a constitutional right may also result from
    the application of the common law:
R. v. Therens
, [1985] 1 S.C.R. 613, at p.
    645.  Potential common law limits on
Charter
rights must be approached
    cautiously, particularly where the common law limit is created post-
Charter
.  A cautious approach is dictated because judge-made common law
    limitations are not the product of the same considered and public weighing and
    balancing of competing interests and values that should be reflected in
    legislative provisions limiting constitutional rights.

[131]

I
    find it particularly difficult to resort to the common law to overlay a
    constitutional limit on what is a statutory defence.  I would have thought that if a reversal of
    the onus in relation to the partial defence of infanticide was viewed as a justifiable
    limit on the presumption of innocence, Parliament would have taken steps to
    write that limit into the statutory defence.  To analogize to the caution sounded by Binnie J., speaking in dissent,
    in
R. v. Stone
, [1999] 2 S.C.R. 290,
    at para. 50, a court should not organize its own s. 1 justification for a
Charter
violation where Parliament in
    crafting a statutory defence did not see fit to create one.

[132]

R. v. Daviault
, [1994] 3 S.C.R. 63, at pp.
    101-102, and
Stone
, at paras. 179-
82,
are two cases in which the courts saw fit to interpret
    the common law as imposing a justifiable limit on s. 11(d).  However, neither case involved a limit on a
    statutorily created defence.  Both were
    cases in which the courts were addressing issues, the voluntariness component
    of the
actus
reus
and
mens rea
of crimes, that have
    traditionally been shaped by judicial interpretation and not Parliamentary
    pronouncement.  Even then, as the
    powerful dissent of Binnie J. in
Stone
demonstrates, judicially created limits on something as fundamental as the
    presumption of innocence are not easy to justify.

[133]

Even
    if the court could invoke the common law to limit the presumption of innocence
    as it applies to the statutory defence of infanticide, I see no justification
    for doing so.  My research reveals that
    in every jurisdiction in which the partial defence of infanticide is recognized,
    neither the legislature nor the courts have seen fit to relieve the Crown of
    its customary burden of proof.  There is
    no suggestion in the case law or commentary from those jurisdictions that bearing
    the burden of proof has posed a difficult, much less insurmountable, burden for
    the Crown.  Indeed, I do not understand
    the Crown on this appeal to have argued that it cannot realistically be
    expected to meet the customary burden of proof where the defence of infanticide
    is in play.

[134]

No
    doubt if the defence advances infanticide as a partial defence to murder and
    the Crown resists that defence, the Crown may have a difficult task in
    establishing beyond a reasonable doubt that the mothers mind was not
"
disturbed
"
in the sense
    required for the infanticide defence.  That
    problem arises whenever the Crown must prove or disprove a certain state of
    mind.  It should not be viewed as an
    impediment to the conviction of the accused, but rather as a reflection of the premium
    placed on individual freedom, the value underlying the constitutional right to
    be presumed innocent.

[135]

In
    any event, as observed by Veit J. in
Effert
,
    at para. 20, any disadvantage potentially suffered by the Crown is largely
    overcome where the court makes an assessment order under s. 672.11(c) and the
    accused cooperates in that assessment.  The respondent cooperated with the assessment order made in this case,
    and Dr. Klassen who did the assessment was able to provide a detailed report
    and give valuable evidence at the trial.

[136]

Where
    an accused advances an infanticide defence to a murder charge, I am satisfied
    there will be ample evidence available of the circumstances surrounding the childs
    death and the mothers mental condition at the time to permit a full inquiry at
    trial into that mental condition.  A trial
    judge has various means available to him or her to ensure that the Crown has a
    full opportunity to challenge any defence evidence offered and to advance its
    own evidence on the infanticide issue.  Certainly, the evidence adduced in this case does not suggest that the
    Crown had any difficulty fully litigating the question of whether the
    respondents killing of her children was infanticide or murder.

[137]

I
    see no justification for limiting the respondents constitutional right to be
    presumed innocent of the charge of murder.  Assuming a sufficient evidentiary basis to give the infanticide claim an
    air of reality, the respondent was entitled to be acquitted on the murder
    charge and convicted of the included offence of infanticide unless the Crown could
    negate the defence of infanticide beyond a reasonable doubt.

(c) The Approach to Be Taken Where Infanticide
    Is Raised as a Defence

[138]

Resolution
    of the issues raised on this appeal allows me to set out the approach that
    should be taken when infanticide is advanced as a defence to murder.  As the vast majority of murder cases involve
    trials by jury, I will set out the appropriate approach in the context of a
    jury trial where the accused is charged with first degree murder.

[139]

Like
    any defence, infanticide is put to the jury only if there is sufficient
    evidence to give that defence an air of reality.  If the defence goes to the jury, instructions
    along the following line should be given:

·

The jury should first decide whether the Crown
    has proved beyond a reasonable doubt that the accused caused the child
'
s death.  If the Crown has failed to do so, the accused
    must be acquitted.

·

If the Crown proves causation, the jury next
    decides whether the Crown has proved beyond a reasonable doubt that in causing
    the childs death the accused committed culpable homicide as defined in s.
    225.  This will most often involve
    proving that the accused committed an unlawful act.  The unlawful act will usually be an
    assault.  If the Crown fails to prove a
    culpable homicide, the accused must be acquitted.

·

If the Crown proves that the accused committed a
    culpable homicide, the jury must then decide the nature of the culpable
    homicide.  The jury should be told to
    consider infanticide first.  If the Crown
    fails to negate at least one of the elements of infanticide beyond a reasonable
    doubt, the jury should be instructed to return a verdict of not guilty of
    murder, but guilty of infanticide.

·

If the Crown does negate infanticide, the jury
    should be told to go on and consider whether the Crown has proved murder.  If the Crown proves murder, then the jury
    should be instructed to determine whether the murder is first or second degree
    murder.

·

If the Crown fails to prove murder, the jury
    should be instructed to return a verdict of not guilty of murder, but guilty of
    manslaughter.

[140]

Applying
    the approach outlined above to the facts of this case, it was conceded that the
    respondent caused her childrens deaths and that in doing so she committed a
    culpable homicide.  Those concessions
    take one to the point where the culpable homicide must be categorized.  The trial judge found on the balance of
    probabilities that the respondent met the criteria for infanticide in respect
    of both homicides.  That finding negated any
    argument that the Crown had proven beyond a reasonable doubt that at least one
    of the elements of infanticide was not present.  The trial judge, therefore, returned the proper verdicts  not guilty of
    murder but guilty of infanticide.

VII

Conclusion

[141]

I
    would dismiss the appeal.

RELEASED: DD MAR 2 2011

Doherty J.A.

I agree M.J. Moldaver J.A.

I agree E.A. Cronk J.A.

Appendix
    A: English Legislation

Infanticide Act 1922
(U.K.), 12 & 13 Geo. V, c. 18

Infanticide Act 1938
(U.K.), 1 & 2 Geo. VI, c. 36

Offence of Infanticide

1.(1)
Where a woman by any wilful act or omission
          causes the death of her newly-born, but at the time of the act or omission
          she had not fully recovered from the effect of giving birth to such child,
          and by reason thereof the balance of her mind was disturbed, she shall,
          notwithstanding that the circumstances were such that but for this Act the
          offence would have amounted to murder, be guilty of felony, to wit
          infanticide, and may for such offence be dealt with and punished as if she
          had been guilty of the offence of manslaughter of such child.

Offence of Infanticide

1.(1)
Where a woman by any wilful act or omission
          causes the death of her child being a child under the age of twelve months,
          but at the time of the act or omission the balance of her mind was disturbed
          by reason of her not having fully recovered from the effect of giving birth
          to the child or by reason of the effect of lactation consequent upon the
          birth of the child, then, notwithstanding that the circumstances were such
          that but for this Act the offence would have amounted to murder, she shall be
          guilty of felony, to wit infanticide, and may for such offence be dealt with
          and punished as if she had been guilty of the offence of manslaughter of the
          child.

1.(2)
Where upon the trial of a
          woman for murder of her newly-born child, the jury are of opinion that she by
          any wilful act or omission caused its death, but that at the time of the act
          or omission she had not fully recovered from the effect of giving birth to
          such child, and that by reason thereof the balance of her mind was then
          disturbed, the jury may, notwithstanding that the circumstances were such
          that but for this Act the offence would have amounted to murder, return in
          lieu thereof a verdict of infanticide.

1.(2)
Where upon the trial of a
          woman for murder of her child, being a child under the age of twelve months,
          the jury are of opinion that she by any wilful act or omission caused its
          death, but that at the time of the act or omission the balance of her mind
          was disturbed by reason of her not having fully recovered from the effect of
          giving birth to the child or by reason of the effect of lactation consequent
          upon the birth of the child, then the jury may, notwithstanding that the
          circumstances were such that but for this Act the offence would have amounted
          to murder, return in lieu thereof a verdict of infanticide.

Appendix
    A1: English Legislation as Amended

Infanticide Act 1938
(U.K.), 1 & 2 Geo. VI, c. 36, as
          am. by
Coroners and Justice Act 2009
(U.K.), c. 25, s. 57, Proclaimed in force 4 October 2010

*The amendments have been bolded and underlined.

Offence of Infanticide

1.(1)

Where a woman by
          any wilful act or omission causes the death of her child being a child under
          the age of twelve months, but at the time of the act or omission the balance
          of her mind was disturbed by reason of her not having fully recovered from
          the effect of giving birth to the child or by reason of the effect of
          lactation consequent upon the birth of the child, then,
if

the circumstances were such that but for this Act the
          offence would have amounted to murder
or
          manslaughter
, she shall be guilty of felony, to wit of infanticide,
          and may for such offence be dealt with and punished as if she had been guilty
          of the offence of manslaughter of the child.

1.(2)
Where upon the
          trial of a woman for the murder of her child, being a child under the age of
          twelve months, the jury are of opinion that she by any wilful act or omission
          caused its death, but that at the time of the act or omission the balance of
          her mind was disturbed by reason of her not having fully recovered from the
          effect of giving birth to the child or by reason of the effect of lactation
          consequent upon the birth of the child, then the jury may,
if
the circumstances were such
          that but for the provisions of this Act they might have returned a verdict of
          murder
or manslaughter
return in lieu thereof a verdict of infanticide.

Appendix B: Canadian Legislation

Criminal Code
, R.S.C. 1927, c. 36, as amended by
An Act to Amend the Criminal Code
,
          S.C. 1948, c. 39

Criminal
          Code
,

S.C. 1953-54,
          c. 51

Criminal
          Code
, R.S.C. 1985, c. C-46

Culpable Homicide

252
.(
3)
Culpable homicide is either murder or manslaughter or infanticide.

Manslaughter

262
.(
1)
Culpable homicide, not being infanticide and not amounting to murder,
          is manslaughter.

Culpable Homicide

194
.(
4)
Culpable homicide is murder or manslaughter or infanticide.

Manslaughter

205.
Culpable homicide that is not murder or
          infanticide is manslaughter.

Culpable Homicide

222
.(
4)
Culpable homicide is murder or manslaughter or infanticide.

Manslaughter

234.
Culpable homicide that is not murder or
          infanticide is manslaughter.

Infanticide defined

262
.(
2)
A woman who by wilful act or omission causes the death of her newly
          born child shall be deemed not to have committed murder or manslaughter if at
          the time of the act or omission she had not fully recovered from the effect
          of giving birth to such child and by reason thereof the balance of her mind
          was then disturbed, but shall be deemed to have committed an indictable
          offence, namely, infanticide.

Infanticide

204.
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.

Infanticide

233.
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.

Punishment for Infanticide

268A.
Every one who commits infanticide is
          guilty of an indictable offence and liable to imprisonment for three years.

Punishment for Infanticide

208.
Every female person who commits
          infanticide is guilty of an indictable offence and liable to imprisonment for
          five years.

Punishment for Infanticide

237.
Every female person who commits
          infanticide is guilty of an indictable offence and liable to imprisonment for
          a term not exceeding five years.

Conviction for manslaughter or
          infanticide on charge of murder

951.(2)
On a count charging murder, if the
          evidence proves manslaughter or infanticide but does not prove murder, the
          jury may find the accused not guilty of murder but guilty of manslaughter or
          infanticide, but shall not on that count find the accused guilty of any other
          offence.

Conviction for manslaughter or
          infanticide on charge of murder

569.(2)
Subject to subsection (3), where a count
          charges murder and the evidence proves manslaughter or infanticide but does
          not prove murder, the jury may find the accused not guilty of murder but
          guilty of manslaughter or infanticide, but shall not on that count find the
          accused guilty of any other offence.

Conviction for manslaughter or
          infanticide on charge of murder

662.(3)
Subject to subsection (4), where a count
          charges murder and the evidence proves manslaughter or infanticide but does
          not prove murder, the jury may find the accused not guilty of murder but
          guilty of manslaughter or infanticide, but shall not on that count find the
          accused guilty of any other offence.

No acquittal unless act or omission
          not wilful

570.
Where a female person is charged with
          infanticide and the evidence establishes that she caused the death of her
          child but does not establish that, at the time of the act or omission by
          which she caused the death of the child,

(a)

she was not
          fully recovered from the effects of giving birth to the child or from the
          effect of lactation consequent to the birth of the child, and

(b)

the balance of
          her mind was, at that time, disturbed by reason of the effect of giving birth
          to the child or the effect of lactation consequent on the birth of the child,

she
may
          be convicted unless the evidence establishes that the act or omission was not
          wilful.

No acquittal unless act or omission
          not wilful

663.
Where a female person is charged with
          infanticide and the evidence establishes that she caused the death of her
          child but does not establish that, at the time of the act or omission by
          which she caused the death of the child,

(a)

she was not
          fully recovered from the effects of giving birth to the child or from the
          effect of lactation consequent to the birth of the child, and

(b)

the balance of
          her mind was, at that time, disturbed by reason of the effect of giving birth
          to the child or the effect of lactation consequent on the birth of the child,

she
may
          be convicted unless the evidence establishes that the act or omission was not
          wilful.

[1]
There is, however, a significant body of helpful recent Canadian academic
    commentary:
e.g.
see E. Cunliffe, Infanticide:  Legislative History and Current Questions (2009) 55 Crim. L.Q. 94; I.
    Grant, Desperate Measures:  Rationalizing the Crime of Infanticide (2010) 14 Can. Crim. L. Rev.
    253; S. Anand, Rationalizing Infanticide:  A Medico-Legal Assessment of the
Criminal
    Codes
Child Homicide Offence (2010) 47 Alta. L. Rev. 705; G. Fitch,
    Infanticide (Paper presented to the National Criminal Law Program:
    Substantive Criminal Law, Halifax, Nova Scotia, July 2004) Federation of Law
    Societies of Canada, 2004, section 11.5; K.J. Kramar,
Unwilling Mothers, Unwanted Babies: Infanticide in Canada
(Vancouver: UBC Press, 2005).

[2]
Crown counsel seeks only a new trial and not convictions because the defence
    strategy at trial, including admissions made by the defence, was predicated on
    the availability of infanticide as a partial defence to murder.  Counsel accepts that if she convinces this
    court that infanticide is not a partial defence, L.B. should have an
    opportunity to defend the murder allegations with the knowledge that infanticide
    is not a partial defence.

[3]
I would note, however, that the Crowns argument that the partial defence of
    infanticide is inconsistent with other defences, such as duress, fails to take
    into account that infanticide does not excuse or justify what would otherwise
    be criminal conduct.  It simply declares
    the conduct to be a separate and less culpable crime than murder.  If there is a comparable defence, it must be
    provocation.

[4]
Professor R. Sullivan, in her valuable text, traces Professor Driedgers
    modern principle to his first edition:  R. Sullivan,
Sullivan on the
    Construction of Statutes
, 5th ed. (Markham: LexisNexis, 2008), at pp.
    1-21.
Driedgers
    modern principle has been repeatedly referred to and relied on in judgments
    of the Supreme Court of Canada:
e.g.
see
R. v. Gladue
, [1999] 1 S.C.R.
    688, at para.

25;
Re
    Rizzo & Rizzo Shoes Ltd.
, at para.

21;
Bell ExpressVu Limited Partnership v. Rex
,
    [2002] 2 S.C.R. 559, at para.
26.

[5]
The impact of the English legislation is also evident in the infanticide
    provisions in effect in New Zealand and some of the Australian states:
e.g.
see
Crimes Act
(N.Z. ) 1961/43, s. 178;
Criminal Code Act

1924
(Tas.), s. 165A;
Crimes Act 1900
(N.S.W.), s. 22A;
Crimes Act

1958
(Vic.), s. 6, as am.
by

Crimes (Homicide)
    Act 2005
(Vic.), s. 5.

[6]
I avoid any exploration of why late nineteenth and early twentieth century
    judges and juries saw infanticide as substantially less blameworthy than other
    murders.  Various explanations are
    discussed by various commentators.  That
    discussion, while thought provoking, does not impact on my interpretation of
    the statutes:
e.g.
see J. A. Osborne, The Crime of Infanticide: Throwing Out the
    Baby with the Bathwater (1987) 6 Can. J. Fam. L. 47; K. ODonovan The
    Medicalisation of Infanticide (1984) Crim. L. R. 259; C. Backhouse, Desperate
    Women and Compassionate Courts: Infanticide in Nineteenth-Century Canada
    (1984) 34 U. Toronto L.J. 447; and K.J. Kramar,
Unwilling Mothers, Unwanted Babies: Infanticide in Canada
(Vancouver: UBC Press, 2005).

[7]
It has been suggested that the inclusion of the effect of lactation, apparently
    always of doubtful medical validity, was an attempt to expand the availability
    of infanticide beyond child homicides involving babies who were only a few hours
    or days old:  see New South Wales Law
    Reform Commission,
Partial Defences to
    Murder:  Provocation and Infanticide
(Report 83) (Sydney: New South Wales Law Reform Commission, 1997), at para.
    3.31.

[8]
This reversal of onus did spark a discussion in the House of Commons:
House
    of Commons Debates
, 1953-54, Vol. III (March 10, 1954), at pp. 2864-66.

[9]

R. v. Effert
(0903-0192A) is
    presently pending before the Alberta Court of Appeal.  In that case, the accused was charged with
    murder and advanced an infanticide defence.  She was convicted of murder and the Alberta Court of Appeal ordered a
    new trial:
R. v. Effert
, 2007 ABCA 284.  The accused was convicted of murder a second time and her second appeal
    is now pending hearing in the Alberta Court of Appeal.  As I read the various trial judgments
    reported, the endorsement of the Alberta Court of Appeal on the first appeal,
    and the facta that have been filed on the second appeal, the Crown has never
    questioned the availability of infanticide as a partial defence to a murder
    charge:  see
R. v .Effert
(2009), 244 C.C.C. (3d) 510 (Alta. Q.B.), at para. 1.

[10]

Infanticide had been considered by a number of
    law commissions in the Australian states, as well as the Law Commission in
    England. The Victorian Law Reform Commission first examined the issue of
    infanticide in
Mental Malfunction and
    Criminal Responsibility
(Report No. 34) (Melbourne: Victorian Law Reform
    Commission, 1990). The issue was considered again in
Defences to Homicide: Final Report
(Melbourne: Victorian Law Reform
    Commission, 2004).  In both reports, the
    Victorian Law Reform Commission recommended that infanticide be retained as an
    offence and as a partial defence. However, in its 2004 report, the Commission
    recommended that the reference to lactation be removed and the age limit of the
    child be raised to two years (pp. 266-67).  The law in Victoria was changed in accordance with these recommendations
    in 2005:
Crimes (Homicide) Act 2005
(Vic), s. 5. This minimal reform approach was provisionally recommended by
    the Law Reform Commission in England in
A
New Homicide Act for
    England and Wales?  A Consultation Paper
(Consultation Paper No. 177) (London: Law Commission, 2005), at paras.
    9.75-9.78. However, in its final report,
Murder,
    Manslaughter and Infanticide
(Law Com. No. 304) (London: Law Commission,
    2006), at para. 8.23, the Law Commission recommended that the offence/defence
    of infanticide be retained in England without amendment.

Conversely, the Law Reform Commission of Western
    Australia recommended that the infanticide provisions be repealed in Western
    Australia in its
Review of the Law of
    Homicide
(Final Report Project 97) (Perth: Law Reform Commission of Western
    Australia, 2007), at pp. 114-17. The infanticide provisions were repealed in
    Western Australia in 2008:
Criminal Law
    Amendment (Homicide) Act 2008
(W.A.), s. 13. The New South Wales Law Reform
    Commission has also recommended that its states infanticide provisions be
    repealed in
Partial Defences to
    Murder:  Provocation and Infanticide
(Report 83) (Sydney: New South Wales Law Reform Commission, 1997), at para.
    3.14. However, this recommendation was conditional on there being a defence of
    diminished responsibility available in some form in New South Wales. The
    infanticide provisions in New South Wales have not been repealed.

In October 2004, the Law Commission of New Zealand was
    directed to review criminal defences including infanticide. Thus far, however,
    the Law Commission has restricted its review to the defence of insanity and has
    yet to address the issue of infanticide.

[11]
The academic commentary and the limited case law calls to mind Lord Devlins
    famous observation, Cases relating to
mens
    rea
as an element in crime live in a shambles from which academic writers
    try to rescue them. See P. Devlin,
The
    Judge
(Oxford: Oxford University Press, 1979), at p. 186.

[12]
The very recent English amendments (Appendix A1) have in effect borrowed the
    language of the 1948 Canadian provision to make it clear that infanticide
    reaches homicides that would otherwise be murder or manslaughter.

[13]
The recent English amendments (Appendix A1) confirm the
mens rea
analysis in
Gore
by making it clear that infanticide applies to homicides that would otherwise
    be murder or manslaughter.

[14]
As indicated in footnote 9 above,
Effert
is on appeal to the Alberta Court of Appeal.  My review of the facta indicates that the onus of proof is not an issue
    on the appeal.

*
A
    definition of newly-born was added in 1954. Section 2(27) of the
1953-54 Criminal Code
provides, newly-born
    child means a person under the age of one year. The same definition is
    provided in s. 2 of the current
Criminal
    Code
.