National Affairs Rory Leishman
When the law takes leave of both science and morality, the inevitable result is chaos in the courts. As evidence, consider the judgment on May 3 by the Supreme Court of Canada in R. v. Levkovic.
The case arose out of the discovery by a building superintendent in Mississauga of a bag containing the remains of a human baby on the balcony of a recently vacated apartment. A post-mortem examination found that the body was that of a baby girl at, or close to, full term.
In a tearful confession to police, Ivana Levkovic the mother of the dead child and a former stripper, said she had tripped while alone in the apartment, given birth to a dead baby girl and left her daughter in the bag on the balcony.
Levkovic was duly charged under section 243 of the Criminal Code, which provides: “Every one who in any manner disposes of the dead body of a child, with intent to conceal the fact that its mother has been delivered of it, whether the child died before, during or after birth, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.”
Levkovic pleaded not guilty. Her lawyer called upon the court to strike down the reference to a child who died before birth in section 243 on the ground that the provision is so vague that it violates the guarantee in section 7 of the Canadian Charter of Rights and Freedoms that: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
The trial judge accepted this argument, but on appeal, the Supreme Court of Canada has rejected it. Citing a precedent dating back to 1854, Canada’s top court has held in Levkovic that section 243 is not unduly vague, because it is a well-established legal rule that a fetus becomes a child when the fetus “has reached a stage in its development when, but for some external event or other circumstances, it would likely have been born alive.”
So far, so good: the Supreme Court of Canada acknowledges that a viable human baby in the womb is a human child. Yet this same Court still stands by its 1991 ruling in R. v. Sullivan that for the purposes of the Criminal Code: “A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother.”
In plain language, the Supreme Court of Canada now contends that for the purposes of the criminal code, a viable baby in the womb is a human child, but not a human being, because a human child does not become a human being until the child is born alive.
One is reminded of the immortal words of Mr. Bumble: “If the law supposes that, the law is an ass – an idiot.” However much some might deny it, the truth surely is self-evident even to the meanest intelligence in Parliament and the courts that every human child, whether inside or outside the womb, is ipso facto a human being that has the same inalienable right to life that is supposed to be guaranteed to “every one” in section 7 of the Charter. Consider one other aspect of the Levkovic ruling: namely, the declaration by the Supreme Court of Canada that “in its application to a child that died before birth, section 243 applies only to still births – not to miscarriages or abortions.” Yet a plain reading of the text of the law makes clear that section 243 focuses on the disposal of the dead body of a child with intent to conceal; and there is nothing in section 243 (or any other section of the criminal code) that grants an exemption from section 243 to abortionists who deliberately kill a child in the womb.
Once again, Mr. Bumble and his 19th-century contemporaries would be mystified. But they were living in a more innocent age when judges understood that they had a sworn duty to respect the separation of legislative and judicial powers by upholding the laws and the Constitution as enacted and originally understood by elected representatives of the people.
