Infanticide

Infanticide is considered one of the three categories of homicideIntentionally causing death under the Criminal Code of Canada, along with murder and manslaughter. There are two types of homicide: 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 culpable homicide. A non-culpable homicide includes deaths that happen as a result of an accident or in an act of self-defence.

Under s.233 of the Criminal Code, 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 and by reason of that, or of the effects of breastfeeding, her mind is then disturbed. A newly-born child is defined in law as a person under one year of age. Importantly, the law does not require a diagnosis of psychosis or any specific psychiatric condition. The threshold is that the mother's mind was disturbed at the time, which is a lower bar than a formal clinical diagnosis.

Every female person who commits infanticide is guilty of a hybrid offenceAn offence the Crown can proceed with summarily or by indictment., meaning the Crown may choose to proceed either by indictment or by summary convictionLess-serious criminal offences. According to a Supreme Court of Canada decision in 2016, R. v. Borowiec, s.233 provides that infanticide is both a stand-alone offence and a partial defence to a charge of murder. Infanticide convictions are rare, the Court noted.

To convict you of infanticide, the Crown must prove three things beyond a reasonable doubtThe high standard the Crown must meet to prove guilt..

First, it must prove that your act or omission was wilful, meaning deliberate, not accidental.

Second, it must prove that your act or omission caused the death of your newly-born child.

Third, it must prove that, at the time of the act or omission, your mind was disturbed because you had not fully recovered from the effects of giving birth or from the effects of breastfeeding.

The Crown does not need to prove that you intended to kill the baby. Infanticide does not require proof of murderous intent. That is what separates it from murder.

Charter issues may also matter if your arrest or the police investigation violated your rights.

If you have been charged with infanticide, the Crown will choose whether to proceed by indictment or by summary conviction. Proceeding by indictment is the more serious route; summary conviction is the less serious route. Either way, you may be imprisoned if convicted.

There is no minimum penalty for infanticide. The maximum sentence depends on how the Crown chooses to proceed. If the Crown proceeds by indictment, the maximum term of imprisonment is five years. If the Crown proceeds by summary conviction, the maximum is two years less a day, a fine of up to $5,000, or both. The right sentence in any case depends on the specific facts and circumstances.

Infanticide is one of the forms of culpable homicide. It applies where a mother causes the death of her newly-born child while her mind is disturbed from the effects of childbirth or lactation.