Friday, May 3, 2013

Regina v. Levkovic

The Supreme Court of Canada decided the sad case of Regina v. Levkovic on May 3, 2013. In so doing, the Court interpreted section 243 of the Canadian Criminal Code (i.e., R.S.C. 1985, c. C‑46, s. 243). Section 243 states that
Every one who in any manner disposes of the dead body of a child, with intent to conceal the fact that its mother has been delivered of it, whether the child died before, during or after birth, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
The Court explained the facts of this tragic case as follows:
[20] While cleaning a recently vacated apartment, a building superintendent discovered on the balcony a bag containing the remains of a human baby. Post-mortem examination revealed that the remains were of a female delivered “at or near full term”: R.F., at para. 8. Due to the decomposition of the remains, the cause of death could not be determined and it was unknown whether there had been a live birth.

[21] Following media reports of the superintendent’s discovery, Ivana Levkovic, the appellant in this Court, attended at a police station and gave a statement to the police. She gave birth to the baby, she explained, after falling while alone in the apartment. She then placed the baby in a bag, deposited the bag on the balcony, and left the apartment. Nothing in her statement to the police suggests that the baby was alive at birth. 
[22] Ms. Levkovic was charged with concealing the body of a child under s. 243 of the Criminal Code. She pleaded not guilty and, before any evidence was called, challenged the constitutionality of s. 243 on the ground that it is impermissibly vague in its application to a child that died before birth. To this extent, she submitted, s. 243 violates s. 7 of the [Canadian] Charter [of Rights and Freedoms].
An Ontario trial court acquitted defendant Levkovic.  An Ontario Court of Appeal panel of judges set aside this acquittal, and ordered a new trial for Levkovic.  The Supreme Court of Canada heard the appeal, dismissed it, siding with the Ontario Court of Appeal, and affirmed the Ontario Court of Appeal's order for a new trial.

In arriving at its decision, the Supreme Court of Canada construed the phrase "before...birth" in section 243, and found it not to be impermissibly vague. As the Supreme Court concluded,
I have concluded that s. 243 does not violate s. 7 of the Charter [of Rights and Freedoms]. Section 243 gives women ― and men ― fair notice that they risk prosecution and conviction if they dispose of the remains of a child born at or near full term with intent to conceal the fact that its mother had been delivered of it. And s. 243 limits with sufficient clarity the discretion of those charged with its enforcement.
Defendant Levkovic will now stand trial for violating section 243.  As it proceeds, this somber prosecution is likely to shed additional light on the legal status of the human fetus in Canada.

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