Toronto criminal lawyer Brian Weingarten Defence Law

On May 3rd, the Supreme Court of Canada released its judgment in the case of R. v. Levkovic. This particular case received a considerable amount of media attention due to the nature of the offence. In this case, Ms. Levkovic was charged with concealing the dead body of her child under s. 243 of the Criminal Code. This particular section states:

243. Every one who in any manner disposes of the dead body of a child, with intent to conceal the fact that its mother has been delivered of it, whether the child died before, during or after birth, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

 While cleaning a recently vacated apartment, a building superintendent discovered a bag containing the remains of a human baby. A post-mortem examination revealed that the body was delivered “at or near full term.” Importantly, the cause of death could not be determined and it was not known whether the baby had been a live birth. Following the discovery, Ms. Levkovic was charged under s. 243 with concealing the body of a child.

 At trial the defence argued that Ms. Levkovic should not be convicted under the section because it infringed her s. 7 rights under the Canadian Charter of Rights and Freedoms. Section 7 is an important legal right under the Charter, and provides that one shall not be deprived of the right to life, liberty, and security of the person except in accordance with the principles of fundamental justice. As the Supreme Court explained, vague laws violate s. 7 because citizens are entitled to fair notice of the consequences of their conduct.

At trial, it was argued that the word “before” in s. 243 was unconstitutionally vague. It was argued that the concept of a child that died before birth was unconstitutionally vague because the moment on the gestational spectrum when a fetus becomes the body of a child, within the meaning of the section, could not be determined. The Trial judge agreed that the section was unconstitutional as drafted and severed the word “before” from the section. As a result, the section was limited in its application to children that died either during or after birth. Ms. Levkovic was therefore found not guilty.

 The Ontario Court of Appeal disagreed with the trial judge’s ruling, overturned the acquittal and ordered a new trial. Subsequently, Ms. Levkovic appealed to the Supreme Court of Canada seeking to reinstate the trial judge’s acquittal.

 The Supreme Court of Canada affirmed the decision of the Ontario Court of Appeal. Justice Fish, writing for the Court, held that section 243 was not unconstitutionally vague.

 While, the doctrine of vagueness was upheld as an important principle of fundamental justice, the Court reasoned that Parliament intended the section to apply to three distinct time periods: before birth, during birth, or after birth. It was further explained that the term “before,” only applies to stillbirths and not to miscarriages. Under s. 243, a fetus becomes a child when “has reached a stage in its development when, but for some external event or other circumstances, it would likely have been born alive.” The Court held that to support a conviction under s, 243, the Crown must show that the “remains” disposed of where the remains of a child. In cases of death before birth, the Crown must prove that the fetus would likely have been born alive. This will ultimately require medical evidence.

 The Supreme Court therefore held that s. 243 meets the standard of precision in its language that is required by the Charter. As such, the appeal was dismissed and a new trial ordered.

 For the full judgment see:



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