INTRODUCTION AND BRIEF DESCRIPTION

This section provides that a woman can be convicted of infanticide if she caused the death of her child while suffering from the effects of giving birth or lactation and her mind was disturbed without intention.

SECTION WORDING

663 Where a female person is charged with infanticide and the evidence establishes that she caused the death of her child but does not establish that, at the time of the act or omission by which she caused the death of the child, (a) she was not fully recovered from the effects of giving birth to the child or from the effect of lactation consequent on the birth of the child, and (b) the balance of her mind was, at that time, disturbed by reason of the effect of giving birth to the child or of the effect of lactation consequent on the birth of the child, she may be convicted unless the evidence establishes that the act or omission was not wilful.

EXPLANATION

Section 663 of the Criminal Code of Canada deals with the offence of infanticide and the circumstances under which it may be committed. Infanticide refers to the killing of a newborn baby by its mother. This section provides an exception to the usual rules governing the offence of murder or manslaughter. It recognizes that a mother who has just given birth to a child may not be in her right mind due to the physical and emotional effects of childbirth and lactation. According to this section, if a female person is charged with infanticide and the evidence shows that she caused the death of her child, she may be convicted if two conditions are met: first, she was not fully recovered from the effects of giving birth to the child or from lactation at the time of the act or omission that caused the child's death; and secondly, her balance of mind was disturbed by the effects of giving birth to the child or lactation at that time. If these conditions are met, the woman may be found guilty of infanticide instead of murder or manslaughter, even though she intentionally caused the death of her child. However, it is necessary for the evidence to demonstrate that the act or omission was not wilful. This means that the woman must not have intended to kill the child, but rather acted in a state of mind that was impaired by the effects of childbirth or lactation. The purpose of this section is to acknowledge the unique physical and emotional challenges that women face after childbirth and to recognize that they may need special considerations in the legal system. It also takes into consideration the fact that the killing of a newborn may be the result of desperation or mental illness rather than malice.

COMMENTARY

Section 663 of the Criminal Code of Canada addresses a specific circumstance in which a female person is charged with infanticide, which is a form of homicide that relates to the killing of an infant within the first year of life. This provision acknowledges the unique physical and mental state that new mothers can experience following pregnancy and childbirth, which can impact their actions and decision-making in ways that are not typical for them. The provision takes into account two distinct criteria that must be met for a female person to be convicted of infanticide. Firstly, it must be established that she caused the death of her child, which could occur through a range of actions or omissions that lead to fatal consequences. This is a significant barrier to conviction, as proving causation in such a case can often be complex and nuanced. Secondly, the evidence must demonstrate that at the time of the act or omission that led to the death of the child, the mother was not fully recovered from the effects of giving birth or lactation. This refers to the physical and psychological toll that pregnancy and childbirth can take on a woman's body, which can include hormonal and bodily changes that affect mood, energy, and cognition. If a mother is still experiencing these effects at the time of the child's death, it can be argued that her judgment and decision-making may have been impaired as a result. Furthermore, the provision stipulates that the balance of the mother's mind was disturbed at the time of the act or omission, due to the effects of giving birth or lactation. This refers to a potential mental illness or psychological condition that may manifest during or after pregnancy, such as postpartum depression or psychosis. These conditions can cause significant distress, confusion, and even psychosis in some mothers, which may affect their ability to think clearly or make rational decisions. Overall, this provision recognizes the complex and multifaceted nature of infanticide cases involving female persons. By acknowledging the physical and psychological toll that pregnancy and childbirth can have on mothers, it attempts to provide some leniency and understanding in cases where a mother's actions may have been influenced by these factors. However, it is important to note that this provision does not excuse or justify infanticide entirely - if the evidence establishes that the act or omission was wilful, a mother can still be convicted of the crime. Thus, this provision strikes a delicate balance between recognizing the potential challenges of new motherhood while upholding the gravity of the crime of infanticide.

STRATEGY

Section 663 of the Criminal Code of Canada applies to cases where a female person is charged with infanticide, but the evidence suggests that the woman was suffering from the effects of giving birth or lactation, and her balance of mind was disturbed due to these effects. In such cases, the woman may be convicted of infanticide unless it can be proven that the act or omission was not wilful. When dealing with such cases, there are several strategic considerations that should be kept in mind to ensure a fair trial and just outcome. One of the primary considerations is to ensure that all relevant evidence is gathered and presented before the court. This may involve obtaining medical records and expert opinions to assess the woman's mental state and physical condition at the time of the incident. It may also involve speaking to witnesses who were present during the incident to understand the circumstances that led to the woman's actions. Another important consideration is to assess the strength of the prosecution's case and whether a plea bargain may be appropriate. In some cases, it may be possible to negotiate a plea bargain for a lesser charge, such as manslaughter, if there is sufficient evidence to suggest that the woman's actions were not premeditated. Alongside this, it is vital that defence counsel works with the accused to ensure that they understand the charges laid against them and the potential consequences if they are convicted. This may involve explaining the nuances of the law and guiding the accused through the trial process. It is also advisable to be mindful of the sensitivities that can arise in dealing with cases of infanticide. These may include cultural and societal attitudes towards motherhood, reproduction, and mental health. As such, defence counsel must be both sensitive and professional in their representations of the accused, while also ensuring that the case is presented in a way that is thorough and rigorous. Finally, it is crucial that defence counsel takes into account the overall impact that the outcome of the trial may have on the accused's life and those around them. This includes considering the impact of any sentence, such as incarceration or probation, on the accused as well as their family and community. Some strategies that may be employed in cases where Section 663 is relevant could include seeking out medical and psychological experts who can provide testimony in support of the accused's mental state and physical condition at the time of the incident. Defending counsel could also seek out character witnesses who can speak to the accused's past behaviour and overall character. The strategic use of pre-trial motions to suppress or exclude evidence could also be utilized to weaken the prosecution's case. In conclusion, the application of Section 663 of the Criminal Code of Canada can be challenging to navigate, and there are several strategic considerations that defence counsel must keep in mind to ensure a fair trial and just outcome. By gathering all relevant evidence and presenting a compelling defence, defence counsel can achieve a positive outcome for their client.