That’s the crux of a May 3 unanimous decision that ordered a re-trial for Ivana Levkovic, who had been acquitted of concealing the delivery of a pregnancy after the body of her baby was discovered.
The case went to the Supreme Court after the original trial judge acquitted Levkovic, ruling it was impossible to determine when the baby had died. That ruling was overturned by an appeal court and then the Supreme Court upheld the lower court’s decision.
Levkovic was charged under Section 243 of the Criminal Code after discovery of a decomposing, nearly full-term baby girl in a bag on her apartment balcony. Levkovic claimed she fell down, went into labour and then disposed of the dead body in a plastic bag. It could not be determined if the baby died before or after birth.
The court was not asked to consider the question of when a child becomes a human being, only whether it can be recognized as a viable child before birth.
The ruling focused on the issue of concealing the disposal of the remains of a child, regardless of whether the child died before or after birth.
Conservative MP Stephen Woodworth pointed out the irrational and illogical notion of “denying equality and dignity to certain classes of human beings.” He said he was happy that, in deciding whether an unborn baby is a child, the court looked “at the nature of the child himself or herself.”
“The court didn’t try to apply any ideology or anticipate the possible consequences of such a determination,” he said. “That’s what I would like Parliament to do. I would like it to determine whether someone is a human being based on essential characteristics and nature, not on ideology or possible consequences.”
Woodworth’s Motion-312 would have established a Parliamentary committee to examine the Criminal Code definition of a human being. But his motion was defeated. The Criminal Code maintains that a baby is not a human being for the purposes of the law until he or she has fully exited the birth canal.
“In upholding Section 243, the Court has affirmed the jurisdiction of Parliament to make the determination of the legal status and other considerations of the child before birth, as was done in the Morgentaler decision in 1988,” said the Evangelical Fellowship of Canada (EFC) vice president and general legal counsel Don Hutchinson.
When Levkovic’s case was argued last October before the Supreme Court, Chief Justice Beverley McLachlan tried to avoid the use of the word “child” since she said the terminology was “under contention.” At one point she referred to the unborn baby as the “thing” or “object” expelled from the mother’s body during delivery.
Levkovic’s lawyers argued the law was overly broad and could conceivably cover miscarriages at early stages of pregnancy and force women to violate their privacy by revealing them.
The court said the law had already been tested in the Berriman case which suggested a child of at least seven months gestation “might have been born alive” but hesitated to “import into s. 243 a fixed threshold based on gestational age that Parliament has so far chosen to omit.”
The Court notes that all parties to the case agree Section 243 “is largely concerned with facilitating the investigation of homicides.” If the child dies after birth, other provisions of the Criminal Code might apply, such as homicide, infanticide or failing to obtain assistance at birth resulting in injury or death to the baby.