Woman faces retrial in dead baby case
High court upholds law against disposing of newborn’s remains
OTTAWA— The Supreme Court of Canada has maintained a Criminal Code prohibition against concealing a child’s dead body, declaring it does not criminalize women who miscarry or deliver a stillborn baby.
In a unanimous 7-0 judgment written by retiring Justice Morris Fish, the country’s top court upheld an appeal court decision to order a new trial for Ivana Levkovic, who is accused of hiding her dead baby.
Levkovic said she was alone in April 2006 when she delivered a baby after falling in a Mississauga apartment. The baby’s body was found days later in a garbage bag on the balcony by a building superintendent who was cleaning the vacated apartment.
She pleaded not guilty to a Criminal Code charge that makes it a crime to dispose of the dead body of a child with intent to conceal delivery, regardless of whether the child died before, during or after birth. An autopsy report determined neither the cause of death, nor whether there was a live birth. Nothing in the mother’s police statement suggested the baby was alive at birth, the Supreme Court noted. Before any evidence was called at her original trial, Levkovic’s lawyers challenged the law as unconstitutionally vague, saying that in us- ing the words “before birth,” it did not clearly distinguish a stillbirth from a miscarriage. The trial judge agreed it is impossible to say when on the gestational spectrum a fetus becomes a “child” under the law and struck out the word “before” birth in the code. That was overturned by the Ontario Court of Appeal. But on Friday, Fish was clear that the law 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” its delivery, but that the burden of proof lies with the Crown.
“A conviction would only lie where the Crown proves that the child, to the knowledge of the accused, would likely have been born alive.”
The high court said the law does not target natural stillbirths, but is intended to fill evidentiary gaps and respond to “criminal conduct against newly born infants in cases where the evidence does not establish that death occurred postbirth.”
Levkovic’s lawyers had argued the law violated Section 7 of the Charter of Rights, which guarantees women the right to life, liberty and security of the person subject to due process and the principles of fundamental justice.
After a judge agreed with her pretrial motion, the Crown called no evidence, and she was acquitted. The Crown has now won the subsequent two appeals and is expected to proceed with a new trial.