OTTAWA - The legal case of a woman who left the corpse of her baby girl to decompose on her balcony comes before the Supreme Court of Canada Oct. 10, throwing open once more the sticky issue of when an unborn child becomes a human being.
No sooner had Parliament voted down Motion 312, which would have studied this very issue, news broke in the mainstream news Canada’s highest court would be hearing arguments in the Ivana Levkovic case. Levkovic had been found not guilty by the trial judge under the Criminal Codes Section 243 which deals with the disposal of a dead body of a child with intent to conceal she delivered it, “whether the child died before, during or after birth.”
This section seems to contradict section 223(1) which Motion 312 proposed to examine that says a child is not a human being until the moment of complete birth.
The Ontario Court of Appeal ordered a new trial, determining the Criminal Code section would apply according to whether the child would have been viable or able to live outside the womb. The coroner was unable to establish whether the baby had been born dead or alive.
“The pro-abortionists putting out bush fires,” said Real Women of Canada national vice president Gwen Landolt, who is a former Crown prosecutor. “The reality of the humanity of the unborn child keeps popping up.”
Real Women is one of several groups that have intervened in court cases involving Charter issues on life, family and religious freedom, but will be observing from the sidelines this time.
Landolt said it is unusual for interveners to participate in a criminal trial because of the danger of having numerous interventions piling up against an accused.
The Ontario Court of Appeal judges, who are “not necessarily pro-life,” were coming to terms with the reality of the child the woman had concealed and left on the balcony, she said. “They had to come to terms with that.”
The judges’ appeal to viability reminded Landolt of what used to happen in medieval times when a pregnant woman was condemned to death. Midwives would place their hands on the woman’s belly and if they felt the baby moving, the “execution would be delayed because even in medieval times you couldn’t kill an innocent child in the womb,” she said.
The Catholic Civil Rights League (CCRL) will also be watching the Levkovic case with interest, said CCRL executive director Joanne McGarry. “I think it will help inform the debate to move in the direction that yes, a human life is there before birth and if deliberate harm is done to that life it should be punished accordingly.”
The Evangelical Fellowship of Canada (EFC), another group that has intervened in numerous court challenges, is keeping an eye on the arguments but EFC vice president and general legal counsel Don Hutchinson cautioned against reading too much into this case.
“The attention this case has drawn in the last week is largely because of the ‘not-a-debate’ of Parliament and extensive media coverage on the status of the pre-born child,” said Hutchinson, who noted the Levkovic case has two interveners: the Attorney General of Canada and the Criminal Lawyers’ Association of Canada.
Section 223 that Motion 312 proposed to study and this case, which looks at Section 243, are Criminal Code sections related to Section 251 which was struck down by the Morgentaler decision of 1988, he said. Section 251 was struck down because of the requirement women had to go before therapeutic abortion committees before obtaining permission for an abortion. It was struck down under the Charter’s Section 7 concerning the security of the person, since there were not enough committees in Canada to give timely recommendations in cases where the health or life of the mother might be endangered.
At the time, however, all the judges agreed it was Parliament’s jurisdiction to make legislation on the state’s interest concerning the pre-born child and even offered suggestions on how that might be done, said Hutchinson.
“I have no expectation that the decision of the Supreme Court of Canada will impact on the definition or provide protection for the child prior to birth,” he said.