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The Supreme Court of Canada building is seen in Ottawa.

DAVE CHAN/The Globe and Mail

The Supreme Court of Canada has ordered that an Ontario woman be re-tried for illegally concealing a baby she had apparently miscarried.

The court said that, rather than being unconstitutionally vague, the law clearly applies to fetuses that would likely have been born alive.

It unanimously rejected arguments that the law leaves women in a state of uncertainty about when a fetus is considered to have been born.

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The court was careful to sidestep the abortion debate in its ruling Friday, refusing to set guidelines for the stage where a fetus becomes a viable human being. It noted that Parliament itself has declined to set a "fixed threshold based on gestational age."

Marie Henein, a lawyer who represented the Criminal Lawyers Association in the case, said Friday's decision will ensure that prosecutions involving miscarriages are rare.

"In defining 'died before birth' by limiting it to late term pregnancies where the fetus would have likely been born alive, the court has strictly limited the breadth of this section," she said. "In narrowing the provision where the legislature failed to do so, it is hoped that recourse to this provision will be used sparingly and not to criminalize morally blameless and highly private matters."

Under section 243 of the Criminal Code, it is a crime to dispose of the dead body of a child with intent to conceal its delivery – whether the child died "before, during or after" birth.

The defendant in the case, Ivana Levkovic, alleged that the section was unacceptably vague when it came to fetus that dies "before" birth.

Ms. Levkovic abandoned the corpse of her newborn outside an apartment in Mississauga in 2006.

The corpse, wrapped in blankets and placed inside a plastic bag, was later discovered by the apartment superintendent.

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It had decomposed so badly that a coroner was unable to determine whether it had been born alive.

After hearing media reports about the discovery, Ms. Levkovic went to police. However, she said nothing to suggest that there had been a live birth.

Charged with concealing the death of her infant, Ms. Levkovic claimed at her trial that the baby had been born dead after she accidentally fell, precipitating labour.

She was acquitted at her trial partly because the provision is vaguely worded and partly because the decomposition of the fetus had prevented forensic investigators from establishing whether the infant was dead before birth.

However, the Ontario Court of Appeal ordered a new trial on the basis that the law was not unconstitutionally vague.

In the Supreme Court, lawyers for Mr. Levkovic argued that her constitutional right to privacy and personal autonomy had been breached by the requirement that she disclose a pregnancy that had failed for natural causes.

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They also argued that a woman might not know whether she has simply miscarried – and thus has no legal obligation to report it – or whether she has experienced a stillbirth, which must be reported.

"From the appellant's perspective, the transition point between miscarriage and stillbirth is critical," Justice Morris Fish remarked in Friday's decision. "It represents the moment when a fetus becomes a child and therefore delineates the boundary between permissible and criminal conduct."

Delmar Doucette, a lawyer for the defendant, said he was disappointed in the decision to order a re-trial.

However, he expressed relief that the Supreme Court has made it clear that a woman cannot be convicted of concealing a birth unless she knew that her stillborn fetus "was at a state of development where it was likely to have been born alive."

Henceforth, Mr. Doucette said, the law will not apply to miscarriages or stillbirths. Instead, it will apply only to cases where a woman had knowledge that her fetus was at or near full term.

Justice Fish said in the ruling that in cases involving death before birth, the burden is on the Crown to prove that the fetus would likely have been born alive.

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He endorsed a concession by Ontario Crown counsel Gillian Roberts and Jamie Klukach that the Crown must prove an accused person was aware that the child died at a time when it could potentially have been born alive.

"In addition, as in cases where the child dies at or after birth, the prosecution must prove that the accused disposed of its body 'with intent to conceal the fact that [the child's] mother has been delivered of it,'" Justice Fish said.

"A conviction will only lie where the Crown proves that the child, to the knowledge of the accused, was likely to have been born alive," he said.

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