Justice Committee on Oct. 24th, 2018

[Tony Clement]

Mr. Chair, I think this motion speaks for itself. It deals with punishment for infanticide. I can't imagine any case on God's green earth where we would want to have a punishment that could go by way of summary rather than indictable offence, and I would encourage my colleagues from all sides to support my amendment, which would make it continue as solely an indictable offence.

[The Chair, Liberal, Anthony Housefather]

May I ask a question to the Justice officials? It's says, “Every female person who commits infanticide”. Can you explain to me what exactly the crime of infanticide is and why only a female person could potentially be guilty of this crime?

[Matthew Taylor]

We can certainly try.

The crime of infanticide is focused on a situation where a woman who has given birth, or shortly after she has given birth, kills her child. It's a provision that recognizes a particular mental state involving the accused that doesn't rise to the level of mental disorder. It's a diminished mental state, and that is why the punishment is different for infanticide from what it would otherwise be for murder.

[Tony Clement]

Are you referring to postpartum depression? Is that what you're saying?

[Matthew Taylor]

I'm not a scientist, and I don't know where the distinctions are in terms of postpartum depression and the baby blues. We know on one end we have mental disorder, and we know on the other end we have depression. Somewhere in the middle we have a diminished capacity, a diminished mental state, so it's something more than depression and something less than mental disorder.

[The Chair, Liberal, Anthony Housefather]

Ms. Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

To the officials, is “mental disorder” a defence to this crime?

[Matthew Taylor]

Yes. If the mental state of the individual arises to a state where mental disorder has been established, then yes, that would operate as a defence. We were just discussing that if the committee would like more information on the law in this area, we'd be happy to provide some.

[The Chair, Liberal, Anthony Housefather]

I would be interested. It says:

A female person commits infanticide when by a wilful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed.

Essentially, in this offence, in 237, we are talking about a woman who has had some type of post-traumatic birth or who is not of totally sound mind when she commits the offence. Do the officials know in general, when people have indeed been sentenced for infanticide, if there have been a number of occasions where the crime has received sentences of less than two years in prison?

[Matthew Taylor]

We do have that data. We don't have it in front of us. We would have to provide that to you subsequent to the meeting.

[The Chair, Liberal, Anthony Housefather]

I would assume the answer would be yes.

We'll go to Mr. Rankin and then Mr. Clement.

[Murray Rankin, NDP, Victoria, BC]

On the issue of the gendered nature of this—that it's only applicable to females—has there ever been a charter challenge?

[Matthew Taylor]

Not to my knowledge. It's slightly different from the focus of this amendment, but there are other jurisdictions that have taken different approaches to these issues and looked at those questions, in terms of reform to their laws of infanticide and whether defences should be available in other situations where there are similar facts at play in terms of diminished capacity and what have you.

[Murray Rankin, NDP, Victoria, BC]

I just wanted to say for the record, again, because we've been away for a while, that my reason for a supporting position to oppose hybridization—if that's not a double negative.... I guess I should say "my reason for opposing hybridization", I guess—

[The Chair, Liberal, Anthony Housefather]

That's good. That works.

[Murray Rankin, NDP, Victoria, BC]

Thank you.

We're not talking about the penalty here. We're talking about the process and the ability of the Crown to decide to proceed by way of summary or indictable. I say, again, that the way we could solve this in a much more transparent way would be to give the courts the discretion that they no longer appear to have, which this government does not seem to want to address.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. Clement.

[Tony Clement]

I had another point, which I guess is trite, in the circumstances.

Obviously, the Crown has to establish mens rea, as well as the actus reus.

If there's no mens rea because of the state of mind of the individual, that would also play into this issue.

[Matthew Taylor]

Yes. As the chair has noted, it involves an intentional act, so the mens rea elements are established there.

But what the punishment tends to recognize is that the circumstances surrounding the commission of the crime are such that the mental state of the individual is diminished.

[Tony Clement]

Yes. Okay. I hear you.

[The Chair, Liberal, Anthony Housefather]

I think Ms. Khalid had put up her hand.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair.

A lot of the work we've done with respect to access to justice, with respect to trafficking—and I've always tried to provide a gender lens on the work we do here—in light of the epidemic, I would think, of mental illnesses and our failure to understand them.... From what I've heard from the department, it seems to me that this must be evaluated on a case-by-case basis, whether somebody should be pursuing through indictment or summary. A prosecutor should be pursuing it through indictment or summary based on the individual in question or the individual charged here.

I don't think I can support this amendment.

[The Chair, Liberal, Anthony Housefather]

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

I think I'm right in saying that there's a whole part of the Criminal Code that deals with being not criminally responsible on the basis of mental disorder, so when you put the infanticide section with the diminished capacity on one side and then you note that there's already a possible finding of not criminally responsible because of mental illness, it's very difficult to see just how those would actually work in a real case. I just put it out there.

With respect, I don't think it has anything to do with this discussion, whether we proceed by way of summary or by way of indictment.

[Matthew Taylor]

One other piece that might be relevant is that infanticide also operates as a partial defence in the context of murder and can result in a manslaughter conviction.