Winnipeg Free Press - PRINT EDITION

Supreme Court gets unfair flak

  • Print

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.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien, Shannon Sampert, and Paul Samyn.

Republished from the Winnipeg Free Press print edition May 23, 2013 A14

Fact Check

Fact Check

Have you found an error, or know of something we’ve missed in one of our stories?
Please use the form below and let us know.

* Required
  • Please post the headline of the story or the title of the video with the error.

  • Please post exactly what was wrong with the story.

  • Please indicate your source for the correct information.

  • Yes

    No

  • This will only be used to contact you if we have a question about your submission, it will not be used to identify you or be published.

  • Cancel

Having problems with the form?

Contact Us Directly
  • Print

You can comment on most stories on winnipegfreepress.com. You can also agree or disagree with other comments. All you need to do is be a Winnipeg Free Press print or e-edition subscriber to join the conversation and give your feedback.

You can comment on most stories on winnipegfreepress.com. You can also agree or disagree with other comments. All you need to do is be a Winnipeg Free Press print or e-edition subscriber to join the conversation and give your feedback.

Have Your Say

New to commenting? Check out our Frequently Asked Questions.

Have Your Say

Comments are open to Winnipeg Free Press print or e-edition subscribers only. why?

Have Your Say

Comments are open to Winnipeg Free Press Subscribers only. why?

The Winnipeg Free Press does not necessarily endorse any of the views posted. By submitting your comment, you agree to our Terms and Conditions. These terms were revised effective April 16, 2010.

letters

Make text: Larger | Smaller

LATEST VIDEO

Humans of the Holidays

View more like this

Photo Store Gallery

  • KEN GIGLIOTTI  WINNIPEG FREE PRESS / July 23 2009 - 090723 - Bart Kives story - Harry Lazarenko Annual River Bank Tour - receding water from summer rains and erosion  damage by flood  and ice  during spring flooding -  Red River , Lyndale Dr. damage to tree roots , river bank damage  , high water marks after 2009 Flood - POY
  • KEN GIGLIOTTI / WINNIPEG FREE PRESS / Jan 10  2011 ‚Äì WEB STDUP ‚Äì Frosty morning at -15 degrees C , in pic frost covers the the Nellie McClung statue  on the MB Legislature grounds at 7am

View More Gallery Photos

Poll

What's your take on the Jets so far this season?

View Results

View Related Story

Ads by Google