OTTAWA, Ontario, October 18, 2011 ( – The Supreme Court of Canada declined last Thursday to hear an appeal in the case of a mother who smothered two of her children. The decision means that a Canadian mother can continue to plead to the lesser charge of “infanticide” rather than “murder” when she ends the life of her newborn child.


The mother in the case, referred to as “L.B,” was 15 years old when in 1998 she smothered her 6-week-old son Alexander. She smothered another one of her children, 10-week-old son Cameron, in 2002. The mother’s deadly actions went undetected by public authorities since the children’s cause of death was attributed to Sudden Infant Death Syndrome (SIDS).

In 2004, the court heard that L.B. had become “depressed” and was “feeling overwhelmed” with the burden of 2 other children that she had brought into the world. In late December of that year, she was admitted into Homewood Mental Health Centre in Guelph, ON where she revealed the truth about the cause of her children’s death to an attending physician. In January of 2005, she was arrested and charged with two counts of murder.

In a statement to the police, L.B. testified that 6-week-old Alexander’s crying made her “angry.” When he would not stop crying, she placed him in his crib, covered him entirely with blankets and a plastic cover, left the room, and began listening to music. She admitted that she was “very confused” but insisted that she “wanted to help Alexander feel better.”

L.B. also testified to police that on the day she killed her 10-week-old son Cameron, she was “very upset” and feared that she would do her child harm. Police heard how L.B. “wanted Cameron to die,” since she believed it was “the right thing to do.” As Cameron slowly suffocated, she told her son that he was “going to a better place.”

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The Canadian Criminal Code defines infanticide as the “wilful act or omission” of a “female person” that “causes the death of her newly-born child” concomitant with “the effects of giving birth to the child” and a “disturbed” mind from the effect of “lactation.” A “newly born child” is defined in Canadian law as a child under one year of age. The penalty is imprisonment of no more than five years.

Infanticide is contrasted by the far weightier crime of murder, which has “imprisonment for life” as its penalty.

Psychiatrists, who were called to testify in L.B.’s trial, found that the mother suffered from a “serious personality disorder” stemming from the mother’s past of “rejection and abandonment.”

Justice Casimir N. Herold convicted L.B. during her 2008 trial of the lesser offense of “infanticide,” rather than of “murder.”

Justice Herold concluded that evidence and expert opinion supported the view that L.B. killed her children in a “disturbed” state of mind as a result of “her not yet having fully recovered from the biological effects of giving birth to those infants and quite possibly, although this is far less clear, to some additional extent as well as a result of the effects of lactation, specifically the hormonal changes following weaning.”

Jennifer Woollcombe, acting for the Crown, appealed Justice Herold’s 2008 decision, arguing that L.B’s “infanticide defence” was based on antiquated laws that were created to give juries an alternative to the death penalty for mentally unstable mothers who killed their children. The Crown argued that the “infanticide defence” constitutes an “unacceptable devaluation of the worth of a newborn child.”

“The respondent intentionally killed two babies,” said the Crown brief during the mother’s trial, as reported in the Globe and Mail.

“The trial judge found that these murders were planned and deliberate. There is no principled reason for acquitting her of murder. She made a choice to kill while her husband was at home, called an ex-boyfriend rather than 911 after killing him, maintained a facade that the babies died of SIDS, and accepted and sought out sympathy and attention.”

Last March, the Court of Appeal for Ontario dismissed the Crown’s appeal calling L.B.’s case one of “statutory interpretation.” Court of Appeal Justice David Doherty ruled that “infanticide was initially, and still is, both a stand alone indictable offence and a partial defence to a charge of murder.”

“In my view,” said Justice Doherty, “infanticide as a form of culpable homicide, should require the mens rea [guilty mind] 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.”

Not satisfied with this decision, the Crown appealed to Canada’s highest court. The Supreme Court dismissed the Crown’s attempt to convict the mother of murder “without costs” and, as is customary, without explanation.

Mary Ellen Douglas of Campaign Life Coalition called the decision a “terrible indictment on Canada.”

“By lowering the sentence, [the courts] are lowering the value of the life of a child,” she said to Postmedia.

Joanna Birenbaum, legal director of the Women’s Legal Education and Action Fund (LEAF) who intervened in L.B.’s case told Postmedia that the Supreme Court’s refusal to hear the Crown appeal upholds the spirit of Canada’s Parliament by taking into account the medical and psychological impacts of postpartum depression.

“This decision does not let women off the hook,” she said. “Rather, it recognizes a woman convicted of infanticide was under serious stress during and directly after giving birth, and allows the courts to put her crime into context.”

The refusal of the Supreme court to hear the Crown’s appeal follows a recent decision of Alberta Justice Joanne Veit who convicted a young mother of “infanticide” rather than of “murder” after she strangled her newborn son and threw his body over the fence into a neighbor’s yard.

In her statement, Justice Veit made a causal connection between the mother’s act of infanticide and Canada’s lack of legal restrictions on abortion, stating that “while many Canadians undoubtedly view abortion as a less than ideal solution to unprotected sex and unwanted pregnancy, they generally understand, accept and sympathize with the onerous demands pregnancy and childbirth exact from mothers, especially mothers without support.”

At that time, what Justice Veit effectively pointed out and partially condoned—according to Albert Mohler—was that the “willingness to kill within the womb leads logically to a willingness to kill outside the womb.”