The Supreme Court of Canada has upheld the acquittal of a Saskatchewan woman charged with abandoning her baby after she gave birth in a Walmart bathroom and left her newborn in a toilet bowl.
In a unanimous decision (though split as to reasons) the Court confirmed prior trial and appeal court verdicts that accepted her testimony that she left the child in a bathroom stall in a Prince Albert store only because she thought the baby was dead.
The Supreme Court has caught flak for its decision. But, faced with the trial judge's findings of fact, and the Criminal Code's liberally worded definition of the crime, it had little recourse but to acquit.
The woman, identified in court documents only by her initials, A.D.H., testified she didn't know she was pregnant, gave birth quickly in the bathroom-stall toilet, and thought the child, blue and motionless, was dead. Other customers who later saw the infant also thought it was dead. But a store manager, on looking at the baby, saw its leg twitch and pulled it out of the toilet. Paramedics called to the store got the child fully breathing.
A.D.H. was charged under Canada's Criminal Code abandonment provision, by which an accused is criminally liable if he or she abandons a child younger than 10 years in a situation apt to endanger or permanently injure the child.
Writing for five of the seven judges, Justice Thomas Cromwell said the trial judge was right to take into account the mother's subjective belief the baby was born dead. The prosecution, he said, had failed to cast reasonable doubt on A.D.H.'s contention she thought she was disposing of a dead fetus.
The Supreme Court took great pains to note that guilt for the crime hinges not on the objective fact the child wasn't in fact dead, but on the credibility of the mother's subjective belief that it was.
It fairly found that the crime as defined in law contains none of the language Parliament usually employs when it creates offences of objective wrong. Nor does the crime impose criminal liability simply for being negligent or careless, even grossly so.
The ensuing criticism of the top court's decision is unfair. It amounts to shooting the messenger. The Supreme Court merely applied language Parliament enacted into law. If the law as framed is too generous to the likes of A.D.H., it's up to Parliament to change it, not the court.
The Criminal Code could be amended to include breaches of minimum or objectively reasonable standards of care. The Supreme Court's decision pretty much spells out how to tighten up the law.
Canada's highest court has rightly punted the issue back to Parliament -- and told it to do its homework.