WestlawNext Canada insight Blog

Watt’s Criminal Law and Evidence Newsletter | Infanticide

Infanticide requires there to have been a mental disturbance triggered by having given birth or by lactating.



Watt’s Criminal Law and Evidence Newsletter

The Honourable Mr. Justice David Watt

R. v. Borowiec, 2016 CarswellAlta 502 (S.C.C.)



Case Law Highlights

[CL 1] — The Essence of Infanticide

Infanticide is a form of culpable homicide that applies where:
i. a mother, by a wilful act or omission, kills her newborn child; and
ii. at the time of the act or omission, the mother’s mind is “disturbed” either because she is not fully recovered from the effects of giving birth or by reason of the effect of lactation: R. v. Borowiec (March 24, 2016), Doc. 36585, 2016 CarswellAlta 502, 2016 CarswellAlta 503 (S.C.C.)

See, Tremeear’s Annotated Criminal Code, Criminal Code, s. 233, “Nature and Elements of Offence”.

[…]

[CL 5] — The Disturbed Mind Element in Infanticide

The term “disturbed” in the phrase “mind is then disturbed” in the definition of infanticide is not a legal or medical term of art, rather should be applied in its grammatical and ordinary sense. The disturbance need not constitute a defined mental or psychological condition, a mental illness, a mental disorder within ss. 2 and 16 of the Criminal Code, or amount to a significant impairment of D’s reasoning faculties: R. v. Borowiec (March 24, 2016), Doc. 36585, 2016 CarswellAlta 502, 2016 CarswellAlta 503 (S.C.C.)

See, Tremeear’s Annotated Criminal Code, Criminal Code, s. 233, “Nature and Elements of Offence”.

[…]

[CL 7] — Disturbance of the Mind and the actus reus of Infanticide

The disturbance of D’s mind is part of the actus reus of infanticide. The disturbance must be present at the time the act or omission causes the newly-born child’s death and occur at a time when D is not fully recovered from the effects of giving birth or of lactation. P not need prove that D’s act or omission was caused by the disturbance, but the disturbance must be “by reason of” the fact that D was not fully recovered from the effects of giving birth or from the effect of lactation consequent on V’s birth: R. v. Borowiec (March 24, 2016), Doc. 36585, 2016 CarswellAlta 502, 2016 CarswellAlta 503 (S.C.C.)

See, Tremeear’s Annotated Criminal Code, Criminal Code, s. 233, “Nature and Elements of Offence”.

See, Watt’s Manual of Criminal Evidence, §27.11, “Proof of Conspiracy or Unlawful Purpose”, “Participation in a Conspiracy: Proof of Actual Membership”.

View the Complete Sample Newsletter
© Copyright WestlawNext Canada, Thomson Reuters Canada Limited. All rights reserved.