INTRODUCTION AND BRIEF DESCRIPTION

If evidence supports the commission of an offense under section 243 but not murder or infanticide of a child, the jury may find the accused guilty of section 243 but not guilty of murder or infanticide.

SECTION WORDING

662(4) Where a count charges the murder of a child or infanticide and the evidence proves the commission of an offence under section 243 but does not prove murder or infanticide, the jury may find the accused not guilty of murder or infanticide, as the case may be, but guilty of an offence under section 243.

EXPLANATION

Section 662(4) of the Criminal Code of Canada provides a unique mechanism for juries to convict individuals where evidence exists to support an offence other than the charge laid against the defendant. Specifically, this section allows juries to convict individuals of an offence under section 243 of the Criminal Code instead of murder or infanticide where the charge laid against an accused person is related to the murder or infanticide of a child, but the evidence presented in court only supports a conviction under section 243. Section 243 of the Criminal Code pertains to the killing of a child by the child's mother, with the intent to cause the death of the child or to cause it bodily harm that the mother knows is likely to cause death and also with a "willful" intent to separate the child from its body. It is worth noting that the term "willful" refers to a mother's intent to cause the child's death, not the act of separation. In general, the purpose of this section is to ensure that individuals who have committed an offence, regardless of the specifics of the charge laid against them, are held accountable for their actions. This approach is based on the belief that a jury's determination of guilt or innocence should be based on the available evidence and that a just outcome requires flexibility and discretion. The use of section 662(4) balances the need for accountability with the importance of respecting the legal rights of the accused. It is based on the idea that an individual should not be convicted of an offence they did not commit, but that justice requires that a person be held accountable for their actions.

COMMENTARY

Section 662(4) of the Criminal Code of Canada is a provision that allows for a form of compromise verdict in cases where the evidence presented in court does not prove the charge of murder or infanticide, but instead proves an offence under section 243. This provision was introduced to give some flexibility to juries in cases involving the death of a child or infant, as they would be able to find the accused guilty of a less serious offence if the evidence presented did not meet the standard required for a murder or infanticide conviction. The provision seeks to address the inherent difficulties in prosecuting cases involving the death of a child or infant, which can be complex and emotionally charged. Cases involving murder or infanticide often involve intricate medical and forensic evidence, as well as complex legal and ethical considerations. The provision recognizes that juries may struggle to reach a unanimous decision in such cases, especially where the evidence is not clear-cut, and provides some discretion to the jury to consider a lesser offence that is still adequate to address the gravity of the situation. However, the provision has also been criticized for its potential to undermine the principle of beyond a reasonable doubt, as juries may be tempted to find the accused guilty of a lesser offence even if the evidence does not meet the standard required for conviction. The provision also raises questions about the role of juries in the criminal justice system and the extent to which they should be allowed to mitigate the consequences of a charge based on their own interpretation of the evidence presented. Furthermore, the provision has been criticized for its potential to perpetuate harmful myths and stereotypes about victims of child abuse, particularly in cases involving infanticide. The provision assumes that a woman who kills her newborn child must be suffering from a mental illness rather than recognizing the possibility that she may have been pushed to take such a drastic step by factors such as poverty, lack of support, or other societal ills. This can result in unjust outcomes, as the woman may end up being punished for a mental illness that may not exist. In conclusion, while Section 662(4) of the Criminal Code of Canada attempts to address some of the complexities of prosecuting cases involving murder or infanticide, there are valid concerns about its potential to undermine the principle of beyond a reasonable doubt and perpetuate harmful stereotypes about victims of child abuse. Further study and consideration are needed to determine whether the provision is serving its intended purpose of providing flexibility to juries while upholding the integrity of the criminal justice system.

STRATEGY

Section 662(4) of the Criminal Code of Canada presents a strategic challenge for both Crown prosecutors and defence counsel in cases where a count charges the murder of a child or infanticide. This provision gives the jury the option to find the accused guilty of an offence under section 243, rather than murder or infanticide, if the evidence does not support those more serious charges. As such, both sides must consider how to present their arguments and evidence in a way that maximizes their chances of success. One key strategy for Crown prosecutors is to ensure that the evidence is presented in a clear and compelling manner. The Crown must establish beyond a reasonable doubt that the accused is guilty of the offence charged, regardless of whether it is murder, infanticide, or section 243. This often involves calling expert witnesses, such as forensic pathologists or child welfare specialists, to testify about the nature and extent of the injuries sustained by the child and the likely cause of death. The Crown must also be prepared to challenge any alternate theories put forward by the defence, such as accidental injury or medical conditions that could have contributed to the child's death. Another important strategy for Crown prosecutors is to carefully consider the charges that are being laid. In cases where the evidence may not support a charge of murder or infanticide, the Crown may choose to lay a charge under section 243 from the outset. This can avoid the need for a separate trial on that charge if the jury ultimately finds that the evidence does not support the more serious charges. However, the Crown must be prepared for the possibility that the jury may still acquit the accused on the section 243 charge, which could mean that no conviction is obtained at all. For defence counsel, the key strategy is often to challenge the Crown's theory of the case and introduce alternate explanations for the child's injuries or death. This may involve calling expert witnesses of their own to testify about potential medical conditions that could have contributed to the child's death, or introducing evidence about the child's home environment and the care provided by the parents. Defence counsel may also argue that the Crown has not met its burden of proof beyond a reasonable doubt, and that the evidence does not support any of the charges laid. Another strategy for defence counsel may be to negotiate a plea deal with the Crown. In cases where the evidence is strong and the potential consequences of a full trial are severe, the accused may choose to plead guilty to a lesser offence under section 243 in exchange for a reduced sentence. This allows the accused to avoid the risk of a more serious conviction while still accepting responsibility for their actions and receiving some measure of leniency from the court. Overall, the strategic considerations in cases involving section 662(4) of the Criminal Code of Canada are complex and multifaceted. Both Crown prosecutors and defence counsel must carefully consider the evidence, charges, and potential outcomes in order to present the most persuasive case possible. By doing so, they can ensure that justice is served and that the interests of all parties are properly represented in court.