R. v. Borowiec (M.K.), (2016) 612 A.R. 3

• Judge: McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner and Brown, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 24, 2016
• Jurisdiction: Canada (Federal)
• Citations: (2016), 612 A.R. 3;2016 SCC 11

R. v. Borowiec (M.K.) (2016), 612 A.R. 3; 662 W.A.C. 3 (SCC)

MLB headnote and full text

Temp. Cite: [2016] TBEd. MR.133

Her Majesty the Queen (appellant) v. Meredith Katharine Borowiec (respondent) and Attorney General of Ontario, Women's Legal Education and Action Fund Inc. and Criminal Lawyers' Association of Ontario (intervenors)

(36585; 2016 SCC 11; 2016 CSC 11)

Indexed As: R. v. Borowiec (M.K.)

Supreme Court of Canada

McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner and Brown, JJ.

March 24, 2016.

Summary:

In 2008 and 2009, the accused mother gave birth to two children. She gave birth alone and immediately wrapped them in a towel, put them in garbage bags, and placed the bags in a dumpster. The accused was charged with two counts of second degree murder. The trial judge acquitted the accused of murder, but convicted her of infanticide (Criminal Code, s. 233) on the ground that she caused the death of the children when she was not fully recovered from the effects of giving birth and, by reason thereof, her mind was then disturbed. The Crown appealed, seeking a new trial for murder.

The Alberta Court of Appeal, Wakeling, J.A., dissenting, in a judgment reported (2015), 602 A.R. 254; 647 W.A.C. 254, dismissed the appeal. The Crown appealed.

The Supreme Court of Canada dismissed the appeal.

Criminal Law - Topic 1253

Offences against person and reputation - Infanticide - Elements of offence - Section 233 of the Criminal Code provided that "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 ... her mind is then disturbed" - The Supreme Court of Canada stated that "Parliament intended the concept of a 'disturbed' mind in this offence to have its ordinary meaning, so as to provide a broad and flexible legal standard which will serve the ends of justice in the particular circumstances of these difficult cases. While we can provide some limited guidance for trial judges and juries, the rest is left, by Parliament's design, to their good judgment. ... I cannot accept ... that Parliament intended to restrict the concept of a disturbed mind to those who have a 'substantial psychological problem' ... I conclude that the phrase 'mind is then disturbed' should be applied as follows: (a) The word 'disturbed' is not a legal or medical term of art, but should be applied in its grammatical and ordinary sense. (b) In the context of whether a mind is disturbed, the term can mean 'mentally agitated', 'mentally unstable' or 'mental discomposure'. (c) The disturbance need not constitute a defined mental or psychological condition or a mental illness. It need not constitute a mental disorder under s. 16 of the Criminal Code or amount to a significant impairment of the accused's reasoning faculties. (d) The disturbance must be present at the time of the act or omission causing the 'newly-born' child's death and the act or omission must occur at a time when the accused is not fully recovered from the effects of giving birth or of lactation. (e) There is no requirement to prove that the act or omission was caused by the disturbance. The disturbance is part of the actus reus of infanticide, not the mens rea. (f) The disturbance must be 'by reason of' the fact that the accused was not fully recovered from the effects of giving birth or from the effect of lactation consequent on the birth of the child." - See paragraphs 2, 35.

Criminal Law - Topic 1254

Offences against person and reputation - Infanticide - Infanticide as a partial defence to a murder charge - Section 233 of the Criminal Code provided that "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 ... her mind is then disturbed" - The Supreme Court of Canada stated that "Infanticide operates both as a stand-alone offence and as a partial defence ... to a charge of murder. ... Where the evidence establishes an air of reality to an infanticide defence, the Crown must negate the defence beyond a reasonable doubt. ... When infanticide is raised as a partial defence to a charge of murder or manslaughter, the jury should be instructed as set out in [R. v. L.B.] ... Where the Crown proves that the accused committed culpable homicide, the jury must consider the nature of the culpable homicide and whether it is infanticide. If the Crown fails to negate at least one of the elements of infanticide beyond a reasonable doubt, the jury must be instructed to return a verdict of not guilty of murder, but guilty of infanticide" - See paragraphs 15, 17.

Criminal Law - Topic 1255

Offences against person and reputation - Infanticide - Evidence and proof - An accused mother charged with two counts of second degree murder in the post-birth deaths of two newborns was acquitted, but found guilty by the trial judge of two counts of infanticide - Section 233 of the Criminal Code provided that "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 ... her mind is then disturbed" - The Crown's expert was not satisfied that the accused met the threshold for a "disturbed" mind - The accused's expert was so satisfied - The trial judge gave greater weight to the opinion of the accused's expert - The Crown appealed, arguing that the trial judge erred in considering the expert evidence, particularly his failure to address inconsistencies in what the accused told the police and what she told the Crown's expert (information he relied upon) - The Alberta Court of Appeal rejected this ground of appeal - The trial judge explained why he preferred the evidence of the accused's expert and gave it more weight - Although it was an error in law not to have addressed and dealt with the evidentiary inconsistencies, the error went to the weight to be given to the expert evidence and not its admissibility (not an error of law) - The court stated that the trial judge "found that the [accused] was operating in a sort of individualized pocket of unreality that persisted in the period shortly following the births. The Crown has not persuaded us that there was an error of law in the trial judge's conclusion in this regard." - The Supreme Court of Canada dismissed the Crown's appeal, stating, inter alia, that "Based on his assessment of the evidence, the trial judge was entitled to conclude or have a reasonable doubt that the [accused's] mind was 'disturbed' at the time of the offences despite any indication of rational behaviour and wilful blindness" - See paragraph 48.

Cases Noticed:

R. v. Coombs (K.A.) (2003), 343 A.R. 212; 2003 ABQB 818, refd to. [para. 9].

R. v. L.B. (2011), 274 O.A.C. 365; 2011 ONCA 153, refd to. [para. 12].

R. v. Guimont (1999), 141 C.C.C.(3d) 314 (Que. C.A.), refd to. [para. 14].

R. v. Parks, [1992] 2 S.C.R. 871; 140 N.R. 161; 55 O.A.C. 241, refd to. [para. 23].

R. v. Leung (S.), [2014] B.C.T.C. Uned. 558; 2014 BCSC 558, refd to. [para. 34].

R. v. L.B., [2008] O.T.C. Uned. I99; 237 C.C.C.(3d) 215 (Sup. Ct.), refd to. [para. 34].

Counsel:

Julie Morgan and Joanne Dartana, for the appellant;

Andrea L. Serink and Alias Amelia Sanders, for the respondent;

Jocelyn Speyer, for the intervenor, Attorney General of Ontario;

Jessica Orkin, Kim Stanton and Frances Mahon, for the intervenor, Women's Legal Education and Action Fund Inc.;

Jonathan Dawe and Michael Dineen, for the intervenor, Criminal Lawyers' Association of Ontario.

Solicitors of Record:

Attorney General of Alberta, Calgary, Alberta, for the appellant;

Serink Law Office and Alias Amelia Sanders, Calgary, Alberta, for the respondent;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, Attorney General of Ontario;

Goldblatt Partners and Women's Legal Education and Action Fund Inc., Toronto, Ontario, for the intervenor, Women's Legal Education and Action Fund Inc.;

Dawe & Dineen, Toronto, Ontario, for the intervenor, Criminal Lawyers' Association of Ontario.

This appeal was heard on January 20, 2016, before McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner and Brown, JJ., of the Supreme Court of Canada.

On March 24, 2016, Cromwell, J., delivered the following judgment in both official languages for the Court.