OTTAWA, May 7, 2013 ( – This past Friday the Supreme Court of Canada upheld an appeals court decision that ordered a new trial for a Mississauga woman who was originally acquitted of a charge of concealing the body of her baby after birth. 

The 7-0 decision by the court upholds a part of the Criminal Code of Canada, Section 243, that makes it an offence to hide the body of a child, “with intent to conceal the fact that [the child’s] mother has been delivered of it,” if the child died “before, during or after” birth.

The case revolved around the thorny question of how an unborn fetus could be considered a “child” under Canadian law, when Canadian law doesn’t view the fetus as a person with rights until the moment of delivery.

According to Ivana Levkovic’s lawyer, the inclusion of the word “before” alongside the word “child” was “unconstitutionally vague.”


This conundrum left the justices scrambling during hearings to come up with the proper term to call the unborn child at the center of the case, without touching on the explosive abortion debate, or playing their hand. Maclean’s Charlie Gillis described the Supreme Court’s language dilemma.

“By using words like ‘child,’ ‘baby’ or ‘girl’ … the judges could be implying humanity on the part of the deceased,” he writes. “They’d also be undermining Levkovic’s defence: if an unborn child has no right to legal protection, her lawyers had reasoned, how could the law stand?

“Thus began a kind of linguistic minuet, as the judges reached for acceptable nomenclature for a hypothetical baby that the law might not regard as a person. [Chief Justice] McLachlin tried ‘object’ and ‘being’ and, at one cringeworthy point, referred to it as ‘this, um, dead, um, whatever.’ Her colleagues didn’t fare much better. During a discussion of the applicability of mens rea, Justice Michael Moldaver, a former criminal lawyer who joined the court one year ago, referred to the infant in such cases as ‘the thing’.”

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The case began in 2006 when Levkovic turned herself in to police after the decomposed body of a baby concealed in a duffel bag was found on the balcony of a Mississauga apartment. Levkovic said she had fallen, and the baby was stillborn in the apartment. She said she put the body of her newborn daughter in the bag and left her on the apartment balcony.

The autopsy performed on the body of the baby girl determined she was near or at full term, but could not confirm if she had died before or after birth.

A new trial was ordered in December 2010 by the Ontario Court of Appeal when it disagreed with a 2008 ruling by Judge Casey Hill of the Ontario Superior Court, who had granted an acquittal and simultaneously struck down a portion of Section 243, eliminating the word “before.”

Judge Hill had complained that he “could not identify the moment on the gestational spectrum when a fetus becomes the body of a child,” in the words of the Supreme Court. 

However, the Supreme Court ultimately concurred with the appeals court decision to apply a “likelihood” criteria to determine when a fetus becomes a child. In other words, a “fetus becomes a child for the purpose of s. 243 when the fetus has reached a stage when, but for some external event or circumstance, it would likely have been born alive.”

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

The Supreme Court justices sidestepped the abortion question, and dealt with the defense’s arguments that the law interferes with a woman’s right not to disclose a failed pregnancy, by arguing that a “plain reading” of s. 243 shows that it “is focused on the event of birth.”

Hence, s. 243, “applies only to stillbirths ― not to miscarriages or abortions.”

Nevertheless, Levkovic's lawyer said that while the Supreme Court “studiously avoided the broader issues,” he felt the decision gives a “toe-hold in the door” for pro-life activists.

“Those who believe in the restrictions [on abortion] are going to be able to look at the language of this decision, and say, we’re no longer talking just about a fetus,” Moon told the National Post. “The Supreme Court has said it is a ‘child’ even though it’s in utero. And they’re going to try to then, I would expect, bridge the gap between a child that is in utero and a child which has been expelled from the woman’s body, and conflate the two together.”

“We applaud the court for maintaining the status quo,” said Jim Hughes, President of Campaign Life Coalition, in response to the decision. “With this decision, the Supreme Court has declined to use the constitution to change the plain wording of Section 243 of the Criminal Code.”

Member of Parliament Stephen Woodworth, whose motion to have Parliament examine the question of when life begins was defeated earlier this year, said he was disappointed that the court “avoided any reference to human equality and human dignity,” but was overall satisfied with the ruling.

“I think most Canadians do very well recognize that an individual is a child and a human being well before the moment of complete birth,” he said.

The full text of the Supreme Court of Canada decision is available here