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'Infanticide' not a defence for murder, appeal court told

The morning after her baby was found dead in his crib, a southern Ontario woman expressed delight that she and her husband could have breakfast unhindered by the child's crying and fussing.

The young woman, L.B., later confessed to smothering the infant - yet she received just a short stint in jail for infanticide, an Ontario Court of Appeal hearing was told Thursday.

On the first day of a novel legal challenge to the infanticide law, prosecutor Jennifer Woollcombe said it is a mockery of a child's death for his or her killer to be spared a life sentence for murder. She argued that an out-and-out psychopath could murder her infant and get off with a relative slap on the wrist simply by exaggerating her "baby blues."

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However, a lawyer for L.B. insisted that infanticide serves as a vital outlet for judges and juries who realize that a mother overwhelmed by post-partum depression can do the unthinkable - take her own child's life.

Defence lawyer Timothy Breen said that the infanticide law evolved decades ago because juries stubbornly refused to convict young mothers of murder, knowing that they might be led away to the scaffold.

"Infanticide can be seen as the leading edge of legal reform that came before the abolition of the death penalty," Mr. Breen told the court. It is a concession to human frailty; to mental disorders that can result from childbirth.

"The death penalty is the elephant in this room," Mr. Breen added. "It explains the development of infanticide's proper interpretation as a defence."

Punishable by up to five years in jail, only a handful of infanticide sentences are handed out each year. However, the profound questions of culpability, mercy and maternal love that they raise loom far out of proportion to their number.

"The Crown has not suggested that post-partum depression is not real," Ms. Woollcombe told the court. "I accept that some - indeed, many - women suffer from very real post-partum depression."

However, she argued that the courts have long misconstrued the Criminal Code provision, believing that infanticide operates as a legitimate legal defence for a woman charged with murder.

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In reality, Mr. Woollcombe said, it is an offence - not a defence - and infanticide should considered only if a judge or jury first concludes that the Crown has failed to make out the essential ingredients of a murder prosecution.

She said that, if approached this way, the law would allow mothers who suffer from genuine mental disturbances to be acquitted of murder, while at the same time making intentional killers pay an appropriate price.

The three-judge panel hearing the appeal waded into the fray as well Thursday, repeatedly expressing their distaste at the idea of expunging a legal provision created by Parliament in 1922, and later refined in 1948 and 1954.

Mr. Justice Michael Moldaver said that Parliament has taken no steps to counteract a Quebec court ruling in 1999 that affirmed the existence of infanticide as a murder defence.

"It seems strange to me that they would leave it hanging out there and do nothing about it," he said. "It just doesn't make sense to me."

Judge Moldaver also challenged Ms. Woollcombe to explain why the Quebec ruling and a considerable body of academics do not support her argument.

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"Just because everyone else is saying it doesn't make it right," Ms. Woollcombe responded. "That is a fundamental position I'm taking."

Later in the day, Judge Moldaver said that transcripts of Parliamentary debates suggest that legislators were keenly aware when the infanticide law was created that killers could be executed, and they appeared to be searching for a pragmatic alternative to murder charges.

"Are you saying that you believe all this was coming down amidst the death penalty debate … but Parliament was quite content to let them hang?" he said.

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Justice reporter

Born in Montreal, Aug. 3, 1954. BA (Journalism) Ryerson, 1979. Previously covered environment beat, Queen's Park. Toronto courts bureau from 1981-85. Justice beat from 1985 - present. More

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