If the Crown has its way, women who kill their newborn children in the depths of postpartum depression will soon pay the ultimate penalty - life behind bars.
Prosecutors will argue in an important test case later this month that providing baby killers with an easy out "cheapens" the lives of their victims. They contend that baby killers deserve no special consideration regardless of whether they acted out of helplessness or clouded vision.
Should the challenge succeed, women who kill their newborns can expect to serve life prison terms for murder instead of several months for infanticide - as is now the norm.
"What the Crown is saying is that if a woman intended to kill her child, murder is the only option," said Isabel Grant, a University of British Columbia law professor. "The Crown is essentially trying to amend the Criminal Code."
The case goes to the heart of criminal intent and culpability. Proponents of the infanticide defence insist that baby killings are often linked to psychological distress and hormonal imbalances that can disrupt a woman's mental equilibrium, greatly reducing her culpability.
"Social, economic, religious, psychological and other factors continue to work together to cause individual women to experience a disturbed mind following childbirth," says a legal brief by Women's Legal Education and Action Fund lawyer Joanna Birenbaum. "They often have no history of mental illness and it is not uncommon for them to be in a state of panic, intense pain, exhaustion, disassociation and alienation."
The defendant, L.G., was in her mid-teens when she lost two infants, in 1998 and 2001. She had another daughter in 2004. Several months later, L.G. went to the hospital in a distraught and panicky state. She confessed to having smothered her first two children.
The young woman was charged with first-degree murder and spent 2 1/2 years in pretrial custody.
Evidence at her trial indicated that L.G.'s parents had been emotionally unstable alcoholics who separated when she was a child. Her mother eventually committed suicide and L.G. later attempted suicide herself on several occasions.
Psychiatric evidence portrayed her as an immature, needy person whose childhood left her with feelings of rejection and abandonment. While L.G. had been joyful about her pregnancies and delighted when her offspring were born, she became sad and "zoned out" within weeks, court heard.
Her trial judge found clear evidence that she had committed two planned and deliberate murders. Nonetheless, he convicted her of the lesser offence of infanticide. Over strenuous protestations from the Crown, the judge sentenced her to a day in jail, three years probation and a 20-year peace bond.
In an appeal to the Ontario Court of Appeal - mirroring a case that will be heard soon in the Alberta Court of Appeal - Ontario prosecutor Jennifer Woollcombe states that infanticide is an anachronism dating back to a time when unwed mothers killed their children to avoid the stigma and difficulty of bringing them up alone.
Ms. Woollcombe said it was never intended as a defence to murder, but is nothing more than a criminal offence police may lay as an alternative to a murder charge.
"The respondent intentionally killed two babies," the Crown brief said. "The trial judge found that these murders were planned and deliberate. There is no principled reason for acquitting her of murder. She made a choice to kill while her husband was at home, called an ex-boyfriend rather than 911 after killing him, maintained a facade that the babies died of SIDS, and accepted and sought out sympathy and attention."
However, a brief filed by Timothy Breen, L.G.'s lawyer, accuses the Crown of inappropriately trying to turn appellate judges into legislators.
"It may be fair to say that Parliament has presumed that a mother would not intentionally killer her child unless she were suffering from a disturbed mind," Mr. Breen said.
Prof. Grant said that prosecutors across the country began to adopt a hard line a couple of years ago in cases where mothers killed their infants and are loath to plea-bargain a murder charge down to infanticide.
"One of the things the Crown argues is that the circumstances that led to the crime of infanticide don't exist any more; that women aren't at a disadvantaged position any more when they give birth," she said.