The baby killer case
SUPREME COURT TO REVIEW INFANTICIDE LAW
Between 2008 and 2010, Meredith Katharine Borowiec gave birth to three babies in her Calgary home. Each time, she wrapped the newborn in a towel, tied it up in a garbage bag and put it in a dumpster. The first two were lost forever, but the third, a boy, was rescued in October 2010, leading to her arrest, as she observed the scene. A police officer noticed blood on the blanket she wore wrapped around her waist, and EMS personnel noticed stretch marks on her abdomen. She soon admitted what she had done.
Two years l ater, during a psychiatric assessment, doctors learned she was pregnant a fourth time, and she delivered under medical care.
Now, the unusual law under which she was sent to jail is up for its first ever review at the Supreme Court of Canada, which declined to hear similar cases in the past, but this time had no choice.
Canada’s law against infanticide — a form of culpable homicide like murder and manslaughter — is “vague, outdated and rife with problems,” says Alberta’s government, which will ask the Supreme Court next week to commit Borowiec to a second murder trial in the killing of the first two babies.
Borowiec, now 34, was cleared in 2013 of murder but convicted of infanticide, meaning she killed the babies wilfully while her mind was “disturbed” because she was “not fully recovered from the effects of giving birth” or because “of the effect of lactation,” as the law phrases it. She was sentenced to 18 months in jail, on top of pretrial custody, far less than the five- year maximum for infanticide and a world away from the life sentence sought by the Crown. She has served her sentence but remains on probation.
An appeal by the Crown failed in a split decision, opening the chance for this top- level challenge.
“In Canada, a mother can kill her baby with the mens rea (a legal term for guilty mind) required for murder and escape conviction for murder, as long as there is some evidence that her mind was disturbed as a result of giving birth or lactation,” according to arguments filed by Alberta’s attorney general, in which it asks the top court to clarify the legal standard for infanticide in the Jan. 20 hearing.
The word “some” is italicized, as if to emphasize that, in practice, it really just means “any” evidence of a mental disturbance, “however slight.” As a result, Alberta argues, a law that was originally created to spare vulnerable young women from the gallows has become a “blanket” excuse for killer mothers, “regardless of their true moral blameworthiness.”
Borowiec’s defence counters that Alberta is trying to usurp the power of Parliament by making a new law to better protect vulnerable babies, backed up with unsubstantiated claims about “modern societal values.”
Even though the law is unquestionably phrased in archaic language that reflects a Victorian view of female psychology, a leading legal scholar thinks the top court is unlikely to offer much clarity, let alone enshrine the stricter new law Alberta proposes. So long as murder carries a 10-year minimum sentence, the infanticide option will be seen as necessary to reflect the societal instinct toward sympathy for women who commit this rare crime.
“What’s difficult to articulate is why we think they are less culp- able,” said Isabel Grant, a professor of criminal and mental-health law at the University of British Columbia.
Crowns have been inclined to charge these cases as murder, and to refuse plea deals on infanticide, only to later fail in court, according to Grant. That trend is reflected in the numbers of infanticide prosecutions, which historically have been about three or four per year since the 1960s, before dropping off steeply after 2006.
In another case, also in Alberta, two juries convicted on murder but both verdicts were overturned on appeal and replaced by an infanticide conviction. One appellate judge was so disturbed by the prosecutor’s zeal that he added a concurring opinion, basically scolding the prosecutor for trying to cloud the jury’s mind with emotion, gruesome autopsy photographs and “unjustified skepticism” of the infanticide defence.
Infanticide convictions, on this view, are compromises, and failures of the preferred charge of murder. More than that, as Alberta argues, they are invited by the law’s loose concept of mental disturbance — a state of mind less severe than the “mental disorder” that could support a verdict of not criminally responsible, but otherwise poorly defined.
The “disturbed mind” of the infanticidal mother “has no definition,” Alberta argues, and courts have been “unable, or unwilling” to make one.
In Borowiec’s case, as the Crown put it, she did not want children and was aware she was pregnant each time, “but did not want to deal with it.”
Alberta argues the trial judge “inferred” that the act of killing, by itself, proved her mind was disturbed. It calls this “a disturbing tautology untethered to logic. … If the act of killing itself were enough to establish a disturbance, no mother would ever be convicted of murder for intentionally killing her newborn child.”
All the same, it is a widely shared instinct that a woman who has killed her baby must have a disturbed mind. The rationale, however, has evolved from a patronizing and overly medical view into the modern compassionate view that takes a broader perspective on the psychological troubles facing some pregnant women.
“Historically, the Criminal Code looks like it adopted a purely medical model,” Grant said, noting for example the relic of “lactational insanity” and the unstated notion that women are slaves to hormones.
Canada’s law was adopted in 1948 based on an English law from 1922, which was created largely because judges had no sentencing discretion for murder. Convicts had to hang. But the accused women were often servants impregnated by employers, for example, for whom childbirth would rob them of their livelihood, in a culture that did not recognize single mothers as legitimate.
Of course, childbirth does have powerful psychological effects, some driven by hormonal changes, others by personal circumstance, as Sandy Simpson, chief of forensic psychiatry at the Centre for Addiction and Mental Health in Toronto, points out.
He described a similar debate in his native New Zealand, in which an infanticide law was replaced with a general law of diminished responsibility. It removed a limitation on how long since birth the killing occurred (in Canada, it must be within the first year of life) and expanded the defence to include the killing of other children, not just the infant. In this regime, the lower culpability of the infanticidal mother can be weighed on sentencing, with no mandatory minimum to worry about.
Alberta proposes Canada adopt a new legal definition: “a woman has a disturbed mind if her psychological health is substantially compromised because she recently gave birth and has a newborn to care for.”
It argues this wording makes clear the crucial link between the birth and the disturbance, confirms that disturbance must be “significant,” and offers a more “workable” test for judges and juries.
“These problems will only be eliminated if infanticide were to be abolished,” Alberta’s factum reads. But that can only be done in Parliament. Failing that, it demands clarification, otherwise even the “baby blues” could qualify.
Lawyers for Borowiec say Alberta has misread the law, and that the “guilty mind” aspect of infanticide is only the wilfulness of the killing. All else, including the mental disturbance, is part of the actus reus, the physical act of the crime. On this view, the mental disturbance is part of the unusual circumstances of this unusual crime, so “no threshold is engaged, no ‘ benchmark’ is required.”
As it arrives before the top court, the only thing clear about infanticide in Canada, as Calgary lawyer Lisa Silver put it in a comment piece, is that it needs to be clarified, “not because the ultimate decision of the majority in the Court of Appeal ( of Alberta in Borowiec) was in error and not because the reasons in dissent were correct, but because ‘ woolly’ laws, whatever the underlying social issues may be, are not legally valid.”
CODE LOOKS LIKE IT ADOPTED A PURELY MEDICAL MODEL.