Why the Supreme Court didn’t weigh in on fetal rights in R. v. Levkovic

Charlie Gillis on a decision that won’t reopen the abortion debate


Sean Kilpatrick/CP

Surely we can agree that stuffing the body of a baby into a bag and leaving it on an apartment balcony for a building superintendent to find is an abominable act. And that it shouldn’t much matter—legally or morally—whether the child died after, during or just before birth.

Or should it?

That was the question before the Supreme Court of Canada in R. v. Levkovic, the latest gut-wrencher to emerge from the legal vacuum left when Canada’s abortion law was struck down in 1988.

The accused, a former stripper then living in Mississauga, Ont., was charged under Sec. 243 of the Criminal Code, which says:

Every one who in any manner disposes of the dead body of a child, with intent to conceal the fact that its mother has been delivered of it, whether the child died before, during or after birth, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Levkovic’s lawyers argued at trial that the co-existence words “child” and “before” in this context are problematic. Since the 1988 Morgentaler decision, the court has resolutely refused to recognize an unborn fetus as a person with rights that might compete against those of its mother. In Levkovic’s case, medical investigators couldn’t say for sure whether the baby had died before, during or after birth.

So, Levkovic’s lawyers argued, the legislation is unconstitutionally vague: if Levkovic’s baby died before birth, then what they were talking about was a “failed pregnancy” and, under Canadian case law, women have an exclusive right to decide whether to disclose a failed pregnancy.

The trial judge agreed, striking the word “before” from the legislation in a move that ultimately led to Levkovic’s acquittal. But that finding was overturned by the Ontario Court of Appeal.

Today, the Supreme Court found a way to uphold human decency without creating new rights for the fetus (I acknowledge the clanging contradiction of that statement to the ears of anti-abortionists). Sec. 243 is just fine, the high court ruled, because “it is focused on the event of birth;” if the accused knows that child is “likely to be born alive,” then the provision applies.

So it all hangs on what the accused knows about the state of her child, which in most cases will turn on medical evidence. In Levkovic’s case, medical evidence concluded the child was born “at or near to term.” Her case will now go back for a new trial.

I wouldn’t call this a brave decision. Really, it’s an exercise in minimalism, which side-steps the big questions this miserable case raises: at what point during gestation is a fetus worthy of any protection whatsoever? Never? Is it really an attack on the hard-won abortion rights of women to even acknowledge some level of moral obligation of society to the just-about-to-be-born?

You can read here about the steps that led us to this point, and how it sets us apart from such unregenerate socail-conservative strongholds as Sweden the U.K. And here’s my look at the absurdities it produced during the Levkovic hearing at the Supreme Court.

In the end, though, I don’t think anyone really expected the court to use this case to weigh in on fetal rights. It has said over and over—right back to Morgentaler—that such questions are the proper purview of Parliament. And the chances of Parliament tackling this question, with any party in power, evidently rank somewhere around those of Canada winning the World Cup of soccer.

Under the circumstances, it made sense for the court to do the least it could do.


Why the Supreme Court didn’t weigh in on fetal rights in R. v. Levkovic

    • how about the doctor down in the states snippin little spines like crazy and throwing them in buckets while still breathing and being defended by the so called choicers although of late they seem to realize he is a monster and now you don’t hear about him anymore on the news!

      • Is their an anti-choice talking point that you don’t regurgitate on a reflexive basis?

        • Evil makes me vomit – yes !!! – and this means nothing to you when a doctor throws a still breathing baby on a table takes out a tiny pair of scissors .. only he doesn’t quite finsih snipping the little spine and throws it in a garbage bucket while it is still alive and then says it’s all in a days work ??? – and this is completely acceptable to you ?

          • There are horror stories from all walks of life. A few catholic priests raped and abused small children, something I view as evil. The church hierarchy covered it up – more evil. These children were persecuted in the communities in which they lived – and this is completely acceptable to you?

            But what does concern me is the actions of people like you to try and remove rights from full citizens because you think their ability to carry to term makes them the property of others who can’t do that. You appear to think that some people are not supposed to be considered full citizens with their full charter rights – and that is completely acceptable to you?

            It’s easy to pick a few anecdotes and then disenfranchise an entire community isn’t it? Your tactics are awful and will solve nothing – you are one of the unreasonable people with whom it is impossible to discuss this issue with; therefore in the cause of safety for adult citizens regardless of sex, the law should stay as is.

    • Did you read the article you provided as a source? The article says the judge acquitted this woman of the 2003 case because the fetus likely died prior to the birth and was probably miscarried early in the pregnancy. This woman was perhaps guilty of improper disposal of a fetus in that case.

  1. I never thought I would lose respect for our highest court but I havve to admit that I am not happy with them at present! Whatever happened to actually looking at the principles invloved and standing up for what the spirit of the law should be. We need someone in power to stand up for the rights of the millions (that’s tight folks around 3 million aborted plus + imagine that we woudn’t need to have immigration to keep us in our old age)unborn children – but every time it gets close political cowardice wins the day. We can’t even debate the subject -this is the part that gets me – universties now have free speech rights for everyone UNLESS it’s a group odf students who are pro life then it’s unacceptable – we have free speech for any left wign nut out there with an agenda BUT god forbid a right wing nut wants to talk then the left storms in and stops it – this is the part I don’t like of late – the inherent hypocrisy of the left in canada knows no bounds of late – can’t blame them though must be frustarting to be so – I know back when I was a left wing loonie I ceratinly lost perspective – which is why years and common sense finally worked it’s magic as it ususally does – paying taxes will do that to a person :)

    • I don’t think you need to be left wing loonie to lose perspective; your comment illustrates that only to clearly.

  2. It appears the language of the offence was first created in 1892, long before women had suffrage, let alone control over their bodies. considering the issue appears to be limited to vagueness alone, the decision seems quite reasonable and exercising restraint. although it’s hardly a universal trait, often judges will avoid answering questions they don’t have to.

  3. This ruling is being misinterpreted. The Court did NOT say that the definition of “child” only applied to stillbirths. They said that s. 243 only applied to stillbirths. Whether they wanted to or not, the SCC just said that viable fetuses are children. To hold otherwise regarding a different section, in a different debate, would be dishonest and would disrespect the word of the Court. It is time for Canada to finally have a reasoned, mature debate on this issue.

    • Wait a minute. Are you sure that the Supreme Court of Canada said “viable fetuses are children” because the definition of “viable fetuses” is different depending on who you ask. The youngest surviving fetus was apparently 21 weeks 5 days gestation. This “baby’ survived with a whole lot of interventions and a whole lot of disabilities. Many physicians would say that a viable fetus is one that is 26 weeks gestation and still that baby would require a lot of intervention in a neonatal intensive care unit and likely would have a number of disabilities. What if the interventions are not available…ie: the baby is born in the remote north? Who is going to say whether the fetus was viable? A fetus might not be viable with no interventions unless born at 36 weeks or later. Viability has a lot to do with age and weight of the fetus. Also, with the health of the mother.

  4. “Surely we can agree that stuffing the body of a baby into a bag and leaving it on an apartment balcony for a building superintendent to find is an abominable act. And that it shouldn’t much matter—legally or morally—whether the child died after, during or just before birth.”
    Of course it matters whether the living being was born or not. Appeals to emotion do not make for good law. If the being was born it has the full rights of a baby/child as written in law, if it wasn’t born then it doesn’t. Depending on which stage the being was at in its development means the difference between murder and other designations.

    “at what point during gestation is a fetus worthy of any protection whatsoever? Never?”
    According to the law of the land yes.

    “Is it really an attack on the hard-won abortion rights of women to even acknowledge some level of moral obligation of society to the just-about-to-be-born?”
    Yes it is as the work of many an anti-choice campaigner will illustrate only too well. But more importantly it codifies a reduction in full citizen’s rights of the expectant mother. Her Charter rights will be lessened and any decision she makes will be subject to taking into account the rights of the foetus. This reduction in rights is sex specific and in the absence of an absolute benchmark will be subject to amendment at the whim of the government. Right now the benchmark is easily definable as the moment of birth and that is why the law uses it to determine personhood.

    Look to the South and see how expectant mothers have been gaioled because the rights of the foetus outweighed the rights of the mother, then tell me which other laws would you like to apply your personal emotional test to?

    • Sorry but that’s just crap. We could easily have a law that protects the rights of the woman while granting certain rights and protections to a viable unborn fetus – if we were mature enough to have a reasoned debate. And it has become increasingly clear to me that pro-choice advocates are every bit as immature, dogmatic and hypocritical on this issue as the pro-life camp.

      • Okay let’s analyse this.

        Right now adult Canadians have the full rights of citizenship regardless of sex. Once you insist that something growing inside of of someone has rights that should be taken into account then the host person no longer has the full rights of citizenship. Women are the only sex that can carry a foetus to term. That means that while a woman is pregnant she has to balance the exercising of her rights with any rights afforded the foetus. In other words she is less than a full citizen of Canada because she is pregnant.

        Maturity doesn’t come into it. Any proposal to give rights to the foetus necessarily means that the rights of an autonomous citizen must be lessened. Those are facts.

        If you can find a way to grant rights to something that requires the body of another for survival without infringing upon the rights of that other then I’m all ears. This really is simple. If you think the dogmatic god botherers won’t target any woman who “endangers” their foetus you are sadly mistaken.
        “These laws were passed by the legislature to protect women from
        third-party violence, not to be used against women themselves,” Emma
        Ketteringham, one of Shuai’s lawyers, said, in a media briefing”

        • I suppose I should have been a little more specific in what I was calling crap. It is this:

          “Is it really an attack on the hard-won abortion rights of women to even acknowledge some level of moral obligation of society to the just-about-to-be-born?” Yes it is…

          By the time the fetus reaches the point where it has the potential to survive outside the womb, if the woman hasn’t already aborted then in all likelihood she has decided to keep it. If that is the case, she is likely thinking of it as her child and most would undoubtedly like to protect that child from negligent or deliberate harm.

          There is no reason why a law can’t be written that would give a woman the right to decide throughout the pregnancy while still giving limited protections to the fetus. I’ve written on it any number of times on here; search “primacy of rights”.

          As to the judgment itself, I haven’t read it but if the summary provided in the article is accurate then the court made the right call in rendering the narrowest interpretation possible.

          • The best law is indeed made slowly on the basis of many judgements over time.
            As for the rest, as long as the foetus is inside the mother it is her call what happens to it. Any kind of provision of rights to the foetus will reduce the rights of the mother and that is wrong. Reasonable people my be able to agree/disagree, but unfortunately the law must remember the dogmatically driven religious loons who would use any precedent to reduce the rights of the mother because their sky faerie told them it was okay.
            Controlling what women can and can’t do with their bodies is still high on the agenda for all the religions of the book and they are waiting to undo any equalisation of rights that might have happened in recent years.

          • See my comment to HI above. As I have said numerous times, it is possible to protect the child in utero against negligent or malicious harm caused by a third party without adversely impacting the woman’s rights. But some are too stubborn and wilfully blindered to even consider the possibility.

          • See Wayne below for the reason that any change in the law would be dangerous. You and me and HI could probably discuss this rationally. Wayne and his like cannot.

            No compromise is acceptable to those who know what is right, hence the reason why the law on person hood has stood for so long.

            Also given the record of this government on writing counterproductive legislation with no genuine consultation, I cannot see them writing any legislation that would preserve the mother’s rights as a citizen. Heck they can’t even write a crime bill properly and that’s supposed to be their thing.

          • “No compromise is acceptable to those who know what is right,”
            If you think that it is right to base whether one should have rights or not solely on geography, rather than stage of development, then we have a fundamental difference of opinion on what is “right” – and yours is based entirely on ideology. That puts you squarely on the same footing as the pro life wingnuts you fear.
            Don’t let fear of what this vocal minority may try; have the courage to move forward and leave them behind. Because as long as you take a stand that cannot be backed up by any logical application of medical science, you lose credibility.

          • I will put my hands up to a form of ideology being involved. But its involvement is based on a “once bitten, twice shy” type of ideology. As my mum once said to me “the road to hell is paved with good intentions,” and having seen the deceit that the religious are willing to indulge in to achieve their god-mandated aims I’m willing to insist that we stick to existing law.

            That after all is the law and it has stood the test of time.
            Weird how it’s me that’s the Conservative over this issue and not the radical.

          • Technically thereisn’t a law… but I get your meaning. And on this issue we’ll just have to agree to disagree.

          • No worries
            Good back and forth

          • …though I have to agree with you that such a move forward will first require a change in government :-)

          • Nice rider :)

          • “By the time the fetus reaches the point where it has the potential to survive outside the womb, if the woman hasn’t already aborted then..”
            You have to understand a few things Keith. The first thing is that fetuses in the fifth month of gestation may have the “potential” to survive with major interventions and the likelihood of severe disabilities. Also, that the probability is that if a woman is having to have an abortion in the fifth month or later, it is due to health reasons. Something has happened…perhaps the membranes have ruptured or she has a uterus that is not competent. In these cases, the physicians do what they can but ultimately, they have to save the mother and if infection sets in, the fetus may not survive.
            At any rate, do you think a woman and her physician should have to face a police investigation after this kind of tragedy? Shouldn’t this decision be made between a woman and her physician? After all, it is a woman’s life that hangs in the balance.

          • You are completely misreading me HI – and as you have read and commented on numerous of my posts on this topic in the past, you should know better.
            I am well aware that most (if not all) late-term abortions are due to medical issues. It is why I have no problem with a woman maintaining primacy of rights until the child has exited her body.
            My issue is with the concept that until the child has exited the womb it has no rights whatsoever. With the sole exception of where invoking the child’s rights in utero would impinge upon the woman’s, then geography (in the womb or out) should not be the basis on which one’s rights are decided.
            As a society, we should be a little more mature and nuanced than that.

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