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Supreme Court asked to clarify rules around infanticide

Last Updated Jan 13, 2016 at 5:40 pm PST

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VANCOUVER (NEWS 1130) – We may soon see changes to the way moms who kill their babies are prosecuted in Canada. The Alberta government is asking the Supreme Court of Canada to clarify the infanticide law and get more specific criteria for what qualifies as a mental disturbance in these rare cases.

The Crown in Alberta has a Supreme Court hearing next week after its attempt to prosecute a mother for second-degree murder in the killing two of her babies failed. She received an 18-month sentence for infanticide. Prosecutors worry infanticide has become a blanket excuse whenever these rare crimes occur.

UBC Allard School of Law Professor Isabel Grant says the law could use some updating. For example, the section of the criminal code which deals with infanticide mentions effects of lactation as a reason a new mother might experience mental disturbance. She doesn’t agree with the Alberta Crown that there should be a limited test or narrow criteria for what constitutes “disturbance of the mind” under infanticide.

Grant worries what will happen to mothers charged with murder with minimum sentencing laws in play. “If a woman is convicted of murder, she’s going to jail for life and there’s nothing the trial judge or anyone else can do about that even if there are particularly mitigating factors. That’s in large part why we need a crime of infanticide. If we had much more flexible sentencing for murder, then the importance of the infanticide option would be diminished because the trial judge could take all these factors into account in imposing an appropriate sentence.”

Grant says the result of the hearing could see the courts limit the deliberately broad infanticide law or this could bring the issue to Parliament’s attention which might then update the legislation.