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The Supreme Court of Canada building is seen in Ottawa. (DAVE CHAN FOR THE GLOBE AND MAIL)
The Supreme Court of Canada building is seen in Ottawa. (DAVE CHAN FOR THE GLOBE AND MAIL)

Supreme Court upholds acquittal of mother who left newborn in Walmart toilet Add to ...

The Supreme Court of Canada has upheld an acquittal for a Saskatchewan woman who was accused of abandoning her baby after it was born in a Walmart bathroom and left in a toilet bowl.

In a unanimous decision, the court said that a trial judge was right to take into account the mother’s subjective belief that the baby had been born dead.

Writing for five of the seven judges in the majority, Justice Thomas Cromwell said the trial judge legitimately concluded that the Crown had failed to shed reasonable doubt on the woman’s contention that she genuinely thought she was disposing of a dead fetus.

“While the conduct and people that fall within (the child abandonment law) are broadly defined, the requirement for subjective fault ensures that only those with a guilty mind are punished,” Justice Cromwell said.

The other two judges in the majority, Justice Michael Moldaver and Justice Marshall Rothstein, said that the child abandonment law was enacted in order to provide strong protection for helpless children who are at the mercy of their caregivers.

They said that, while the subjective belief of a defendant can potentially figure in a decision to acquit or convict, the offence is far more concerned with measuring an accused person’s conduct against that of an ordinary, reasonable person.

They said that a prosecution can result in an acquittal if the circumstances of a child’s death suggested that it was “objectively reasonable” for the defendant to have believed the child was not in danger.

"A  mistake of fact that is both honest and reasonable affords a complete defence,” Justice Moldaver and Justice Rothstein concluded.

The mother -- identified as ADH by the court because of a publication ban pertaining to the name of the baby -- alleges that she was unaware that she was pregnant and left the baby after giving birth to it, assuming from its appearance that it was dead.

The question for the court was whether the defendant can be found criminally responsible for abandoning a live infant.

The incident took place in Prince Albert, in 2007. After discovering the baby in a bathroom toilet bowl, Walmart staff were able to revive it.

ADH was charged by police with endangering the life of a child under the age of 10 by unlawfully abandoning it.

She was acquitted at trial and the verdict was later upheld by the Saskatchewan Court of Appeal.

The mother of the infant claimed at her trial that she had no idea she was pregnant. Surprised that she was gaining weight, she said that she took pregnancy tests three times during the gestation stage, yet each was negative.

ABH said that she was shocked when the baby emerged in the toilet stall. She attempted to clean up the stall afterwards and then rushed out of the store.

Other women in the bathroom who had heard the woman struggling saw blood seeping across the floor. They alerted store personnel, who called 911. The baby was given emergency care and found to be perfectly healthy.

Justice Cromwell said that the child - a boy – is now living with the defendant’s mother. He said that the defendant is an enthusiastic mother who visits the child often at her mother’s home.

Under the Criminal Code’s abandonment provision, an accused if criminally liable if he or she abandons or exposes a child under the age of 10 years to situation which could endanger the child’s life or could lead to it being permanently injured.

One of the key issues in the appeal was whether the woman’s subjective belief about whether the infant was dead should be allowed to take precedence over the objective fact that it was.

The Crown alleges that ADH ought to, at least, have taken steps to determine whether the baby was alive before deciding to abandon it.

The case is a bookend to a decision earlier this month in which the court ordered a new trial for an Ontario woman, Ivana Levkovic, who left her newborn in a plastic bag on the balcony of an apartment.

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