QUICK TAKEAWAY
Infanticide: Section 233 of the Criminal Code states that a female commits infanticide if she causes the death of her newborn child by a wilful act or omission when her mind is disturbed as a result of the effects of giving birth. It is a law that is specific to women. It was added in 1948 because juries were refusing to convict mothers of murdering their own children and comes with less harsh sentencing. The penalty for infanticide is a maximum of five years imprisonment. There is no minimum penalty.
Table of Contents:
What is Infanticide?
Infanticide is considered one of the three categories of homicides under the Criminal Code of Canada along with first-degree murder and second-degree murder and manslaughter. There are two types of homicides - culpable homicideA killing where intent is proven and non-culpable homicide. If you intentionally cause the death of another person or intentionally inflict bodily harm that you know is likely to cause death and you are not acting in self-defence or the defence of another, this would be known as culpable homicideIntentionally causing death. A non-culpable homicide includes deaths that happen as a result of an accident or in an act of self-defence.
The Code states that every female person who commits infanticide is guilty of an indictable offence. For infanticide to be charged instead of murder the child must have been less than 12 months old and the mother must have been suffering from some form of psychosis brought on by childbirth.
According to a Supreme Court of Canada case in 2016, s.233 of the Criminal Code provides that infanticide is both a stand-alone indictable offence and a partial defence to a charge of murder. Infanticide convictions are rare, the court stated.
What is Needed to Convict
To win a conviction the Crown must prove beyond a reasonable doubt that you intended to kill the baby. The mens rea or intention of knowledge of infanticide requires willful acts or omissions which may equate to murder or manslaughter. Your lawyer may also be able to establish reasons why your arrest was not lawful under the Canadian Charter of Rights and Freedoms.
Treated as an Indictable Offence
If you have been charged with any homicide, the Crown will proceed as an indictable offenceIndictable offences are more-serious criminal offences and you can be imprisoned if convicted.
Penalty for Infanticide
There is no minimum penalty for infanticide. The maximum jail term is five years, although the average sentence is about 18 months, according to media reports.
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Jonathan R. Avis, Barrister & Solicitor
Nicholas Jacob, Barrister & Solicitor
Simmons Law
Julian Van Der Walle Criminal Law
Mcpheeters Criminal Defence
Glossary of Legal Terms
Culpable homicide
Murder, manslaughter or infanticide where the death was caused by an intentional act or criminal negligence.
Homicide
When a person causes the death of another or intentionally inflicts bodily harm they know is likely to cause death and they are not acting in the course of self-defence.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
