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The Supreme Court of Canada. (Sean Kilpatrick/THE CANADIAN PRESS)
The Supreme Court of Canada. (Sean Kilpatrick/THE CANADIAN PRESS)

Globe editorial

The Supreme Court and an unborn life Add to ...

Canada has no abortion law, but this country still has an interest in protecting unborn life. Accordingly, a unanimous Supreme Court made sure that an important law against infanticide remains on the books.

The case involved a Toronto-area woman alleged to have disposed of her dead infant daughter on the balcony of a vacated apartment. It was in no way about abortion rights. Neither was it about a woman’s right to privacy when a pregnancy does not produce a live baby, though the woman tried very hard to argue that it was. It was about protecting life, and in particular the lives of an exceedingly vulnerable group: newborn babies. There was no way to know if the dead baby had been killed.

The case was the subject of intense news coverage in the early spring of 2006, when an apartment superintendent found the dead body wrapped in towels in a bag. Ivana Levkovic of Mississauga, Ont., eventually came forward and said that she had fallen while alone in the apartment and then given birth. A pathologist said the baby had been at or near full term.

There are several laws protecting the fetus. One makes it a crime when a child dies as a result of an injury caused before or during birth; another to cause death in the act of birth; and still another makes it a crime when a woman tries to kill a child or conceal its birth by failing to seek reasonable help for a delivery and the child dies as a result.

Despite these laws, society’s interest in protecting life somehow became wrapped up in uncertainty over what a “child” means in law. The trial judge said the law was vague because he could not identify the point when a fetus becomes a dead body for the purposes of the law in question. “I am unable to determine . . . a coherent, unambiguous meaning of ‘child’ in the context of death before birth,” the judge said.

That law reads: “Everyone 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.”

The Supreme Court said the law gives Canadian women and men fair notice: It applies where the baby had been carried long enough that it was likely to be born alive. It’s a protection for those who would be born.

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