OTTAWA — The Supreme Court of Canada has waded for the first time into one of humanity’s darkest corners, offering its legal definition of what constitutes the disturbed mind of mother who kills her newborn.
The court ruled by a 7-0 margin Thursday that an Alberta woman who tossed two of her newborns into the garbage is not guilty of second-degree murder.
The decision upheld the earlier findings of an Alberta trial judge and the province’s appeal court and agreed with the proposition put forth by lawyers for Meredith Borowiec of Calgary, who argued that she was guilty of the lesser offence of infanticide.
The court was ruling for the first time on the infanticide provision of the Criminal Code, which turns on the definition of what constitutes a disturbed mind for a new mother.
Justice Thomas Cromwell, writing for the court, said the legal test for a disturbed mind is lower than the legal test for insanity.
“The word ‘disturbed’ is not a legal or medical term of art, but should be applied in its grammatical and ordinary sense,” Cromwell ruled.
“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 a child.”
Borowiec was originally charged with two counts of second-degree murder for the deaths of two of her children in 2008 and 2009.
In 2014, she was convicted of infanticide and sentenced to an additional 18 months in jail on top of the 18 months she had already spent in custody.
Alberta’s Court of Appeal upheld the infanticide verdicts, but it was a split decision, meaning the matter automatically moved to the Supreme Court.
At trial, the prosecution and defence called competing experts to testify on Borowiec’s state of mind.
The judge ruled that the definition of a disturbed mind “did not require an actual diagnosis of mental disorder and sets a very low threshold.”
Borowiec’s expert said she was “detached and not thinking” and was “dreaming but not there” and was having an “out-of-body experience.”
The trial judge concluded that Borowiec’s mind was “’disturbed’ as a result of not yet having fully recovered from the effects of giving birth.
Lower courts have heard evidence that Borowiec told police that she heard the babies cry before she put them in trash bags and dropped them into garbage bins. She said she didn’t do anything to hurt them before she disposed of them.
Cromwell’s 19-page ruling traces the origins of the infanticide law, to 1920s Britain, when “it was thought to be a crime mostly committed by ‘illegitimate mothers’ trying to hide their shame, a motive which the general opinion thought lessened the heinousness of the crime.”
Infanticide made its way into Canada’s Criminal Code in 1948.
The ruling makes clear there is little case law on infanticide.