Child Homicide and Offences Related to Childbirth

• Author: Lisa Joyal/Jennifer Gibson/Lisa Henderson/David Berg/Kasandra Cronin
• Pages: 385-466



Child Homicide

and Ofences

Related to

Childbirth

10

I. Introduction ............................................. 

II. Child Homicide Offences .................................. 

A. Overview of the Statutory Framework ................... 

B. Second-Degree Murder ............................... 

C. First-Degree Murder ................................. 

D. Attempted Murder .................................. 

E. Manslaughter ...................................... 

F. Infanticide ......................................... 

G. Defences to Child Homicide Offences ................... 

III. Offences Related to Childbirth .............................. 

A. Introduction ........................................ 

B. Section (): Injuring a Child Before or

During Birth Who Dies After Birth ...................... 

C. Section : Intentionally Killing a Child in the Act of Birth ... 

D. Section : Neglect to Obtain Assistance in Childbirth .... 

E. Section : Concealing the Dead Body of a Child ......... 

© [2023] Emond Montgomery Publications. All Rights Reserved.

Prosecuting and Defending Oences Against Children

I. Introduction

“The death of a child is always tragic.”1 In Canada, major causes of death in child-

hood and adolescence include “sudden death in infancy,” infection, disease, medical

disorder, accident, child maltreatment, suicide, and homicide.2

Although there are currently no national standards in Canada for data collection

or investigation in cases of child death, a number of provinces and territories have

established formal child death review systems.3

In relative terms, only a small percentage of the total number of child deaths in

Canada occur as a result of suspected child homicide.4 However, “society is gravely

concerned with investigating offences committed against society’s youngest.”5 As

noted in The Report of the Inquiry into Pediatric Forensic Pathology in Ontario:

For the community itself, the death of a child in criminally suspicious circumstances

is deeply disturbing. Children are the community’s most precious and most defence-

less asset. The sense of outrage and the urgent need to understand what happened are

overwhelming.6

Nonetheless, community outrage over the criminally suspicious death of a child

can never serve to displace the fundamental principles of criminal justice that must

be applied to any investigation or prosecution in respect of a child’s death. As the

Goudge Report stated:

Despite the complex and difficult challenges of investigating and adjudicating pediatric

death cases, the criminal justice system must do so correctly and fairly, often in a highly

1 R v Mullins-Johnson, 2007 ONCA 720 at para 1.

2 Canadian Paediatric Society, Are We Doing Enough? A Status Report on Canadian Public Pol-

icy and Child and Youth Health (Ottawa: Canadian Paediatric Society, 2016), online (pdf):

<https://www.cps.ca/uploads/advocacy/SR16_ENG.pdf>.

3 Canadian Paediatric Society, “The Importance of Child and Youth Death Review” (last modi-

fied 1 March 2022), online: <https://cps.ca/en/documents/position/importance-of-child-

and-youth-death-review#:~:text=The%20mandate%20of%20a%20formal,and%20injuries%20

in%20the%20future>.

4 See, for instance, Ontario, Office of the Chief Coroner, Paediatric Death Review Commit-

tee (PDRC) and Deaths Under Five Committee (DU5C) 2019 Annual Report (23 February

2022), online: <https://www.ontario.ca/document/paediatric-death-review-committee-and

-deaths-under-five-committee-2019-annual-report>.

5 R v Levkovic, 2013 SCC 25 at para 68. The SCC dismissed the appeal from 2010 ONCA 830,

which had overturned 2008 CanLII 48647, [2008] OJ No 3746 (QL) (Sup Ct J) and ordered a

new trial.

6 Ontario, Inquiry into Pediatric Forensic Pathology in Ontario, vol 2 (Toronto: Ministry of the

Attorney General, 2008) at 4, online: <http://www.archives.gov.on.ca/en/e_records/goudge/

report> [Goudge Report]. © King’s Printer for Ontario, 2008. Reproduced with permission.

See Chapter 12, Trial Considerations, Section VII, “Expert Evidence,” for a discussion of the

Goudge Report.

© [2023] Emond Montgomery Publications. All Rights Reserved.

Chapter  Child Homicide and Offences Related to Childbirth 

charged emotional atmosphere. The consequences of failure in these circumstances are

extraordinarily high.7

Like all criminal cases, child homicide trials may involve the presentation of many

different types of evidence, including direct and circumstantial evidence, lay witness

and expert opinion evidence, evidence of prior discreditable conduct, and statements

from the accused. However, in one important respect, child death cases are distin-

guishable from all other child abuse cases. In child death cases, both parties are regu-

larly and heavily dependent upon expert opinion evidence in order to help the trier of

fact arrive at the truth in respect of a set of allegations and determine whether there

is reasonable doubt, or proof beyond a reasonable doubt, in respect of each of the ele-

ments of the offence charged.

In this regard, pediatric forensic pathology plays a critical role in helping the trier

of fact determine many issues in a child death case, including the cause, manner,

and time of the child’s death. Triers of fact may also receive evidence from foren-

sic experts in disciplines as varied as toxicology, biology, odontology, anthropology,

entomology, nursing, the physical sciences, and psychiatry.8 In addition, the parties

may look for assistance from many other medical professionals, including pediatri-

cians, ophthalmologists, radiologists, neurologists, nutritionists, gynecologists, and

obstetricians.

The Goudge Report should always serve as a reminder to all police officers, pros-

ecutors, defence counsel, judges, and expert witnesses about the importance of doing

their best to ensure that only reliable and properly bounded expert evidence is placed

before the court in child death cases, so as to further the truth-seeking function of the

trial process and guard against wrongful conviction.9 One of the most valuable lessons

7 Ibid at 4. © King’s Printer for Ontario, 2008. Reproduced with permission. In R v Tallio, 2021

BCCA 314, the appellant sought to set aside his 40-year-old guilty plea to second-degree mur-

der for the sexual assault and killing of a 22-month-old child. He argued on appeal that a

miscarriage of justice occurred. He suggested that his trial counsel had provided ineffective

assistance, that his plea was uninformed, that recently conducted DNA testing exonerated

him, that the police investigation was inadequate, and that it was likely someone else had

sexually assaulted and murdered the child. However, the British Columbia Court of Appeal

dismissed the appeal, concluding the appellant had not established that he received ineffective

representation or that a cognitive disability prevented him from understanding the instructions

he gave to his lawyer about the guilty plea. In addition, the Court concluded that the fresh

DNA evidence did not exonerate the appellant because he could not be excluded from the

DNA profile. Furthermore, the appellant’s fresh evidence fell “far short of establishing on a

balance of probabilities” that someone else had sexually assaulted and murdered the child.

8 See Dr Michael S Pollanen et al, eds, Forensic Science in Canada: A Report of Multidisciplinary

Discussion (Toronto: Centre for Forensic Science and Medicine, University of Toronto, 2013).

9 Goudge Report, supra note 6, vol 1, at 4. In 2005, the Chief Coroner for Ontario began a review

of 45 cases in which discredited Dr Charles Smith had provided an opinion or testified. This

review eventually led to the creation of the Inquiry into Pediatric Forensic Pathology [Goudge

Inquiry].

© [2023] Emond Montgomery Publications. All Rights Reserved.