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Abstract

The offence of infanticide is allegedly based in debunked and sexist ideas about women and pregnancy. This article demonstrates that this offence is both necessary and beneficial regardless of its alleged basis. This article outlines the elements of infanticide and examines the legislative history from Medieval England to its adoption in Canada before discussing contemporary discourses on infanticide with a particular focus on the application of modern medical science. This work argues there are two issues with the current offence: (1) the requirement of a “disturbed mind” in the accused resulting from childbirth or lactation; and (2) the lack of a required causal connection between the “disturbed mind” and the offence. Reforming the offence in this way would reduce the breadth of the offence and improve the ways in which women are dealt with by the criminal justice system.

This article is helpful for readers seeking to learn more about:

  • criminal law, infanticide, homicide, murder, Canadian legal history, English legal history, medical science, law reform

Topics in this article include:

  • causality, defence of mental disorder, criminal offences, criminal defences, Canada, England, medical science, psychiatric science, postpartum disorders, childbirth, lactation, external stressors, Criminal Code section 233, Chief Justice McLachlin, Old Bailey

Authorities cited in this article include:

  • Criminal Code, RSC 1985, c C-46

  • Stuart Bastard Neonaticide Act, 1624 (UK), 21 JA I, c 27

  • Infanticide Act, 1938 (UK), 1 & 2 Geo VI, c 36

  • Malicious Shooting and Stabbing Act (1803) 43 Geo III, c 58

  • R v Krieger, 2006 SCC 47

  • R v Guimont (1999), 141 CCC (3d) 314 (QCA)

  • R v Coombs, 2003 ABQB 818

  • R v LB (2008), 237 CCC (3d) 215 (Ont Sup Ct)

  • R v LB, 2011 ONCA 153

  • R v Effert, 2011 ABCA 134

  • R v Smith (1976), 24 Nfld & PEIR 161 (Nfld Dist Ct)