A woman charged with leaving the body of her full-term baby daughter wrapped in a plastic bag on her apartment balcony in 2006 was found to be within her legal rights by an Ontario judge.
Justice Toni Skarica of the Ontario Superior Court ruled there was a “reasonable possibility” that the mother killed her daughter before birth and then self-aborted before concealing her body. “The practical effect of the law, as I interpret it, is that any woman can destroy her near-term or term fetus and can induce an abortion accordingly and do what she will with the remains without risking any criminal sanctions,” wrote Skarica, a former Progressive Conservative MPP, in his decision.
Skarica said that while he found his own verdict “deeply disturbing” and “disgusting at any moral level,” he was nonetheless “bound by the law as the Supreme Court of Canada interprets it.”
The case came before the Court again after a long legal journey.
The decision came in the case of Ivana Levkovic, a former stripper who has admitted to hiding her daughter’s body in April 2006. Levkovic was 24 at the time. The body of the child, who was at or near full-term, was discovered by the apartment superintendent in a bag on the balcony of a vacated apartment.
After the discovery gained media attention, Levkovic approached police and admitted the child was hers. She said she had fallen on the stairs, and the baby was born in the apartment, and that she then put the baby in the bag.
She was charged under a Criminal Code provision that prohibits concealing the body of a child who has died, whether the death occurred before, during, or after birth.
But she was let off in 2008 when Judge Casey Hill of the Ontario Superior Court ruled that it was unconstitutionally vague to apply the law to children who died before birth. He noted that the law preceded the legalization of abortion.
On Dec. 7, 2010 the Court of Appeal disagreed and ordered a new trial for Levkovic. Justice David Watt said in a unanimous 3-0 decision that the law against concealment of the child’s body applies when that child could survive outside the womb under appropriate care. “A foetus becomes a child when it has reached a stage in its development when, but for some external event or other circumstances, it would likely have been born alive.”
At the time, Gwen Landolt, national vice-president of REAL Women Canada, praised the court for recognizing the respect owed to Levkovic’s child, but said the ruling highlights the poor logic behind Canada’s acceptance of abortion-on-demand. “If she had had an abortion, she would have no legal liability,” Landolt said. “But because the child was born, she’s legally liable. It just makes no sense.”
In 2013, the Supreme Court of Canada ruled unanimously that Section 243 was constitutional and that the words “child died before birth” in the section were not vague because it was limited to cases where the fetus was likely to have been born alive. The Supreme Court ruled that the law “applies only to stillbirths not to miscarriages or abortions,” dictating that a “fetus becomes a child for the purpose of s. 243 when the fetus has reached a stage when, but for some external event or circumstance, it would likely have been born alive.”
The Supreme Court upheld the Court of Appeal decision on the constitutionality of the law and ordered a new trial.
In his Sept. 24 decision, Skarica said that since evidence could not determine that the child was born alive, there was no ground upon which to convict Levkovic. Skarica said that because Canada permits abortion, there was no reason to find the defendant guilty of anything.
Levkovic’s lawyer, Michael Moon, said the ruling abides by Canada’s current legal vacuum on abortion. “We have also been clear throughout that this case represented an unwarranted encroachment on a woman’s reproductive choice,” he told the Mississauga News. “There are no limits, in law, as to when or how a woman exercises her right to abortion in Canada, and while Justice Skarica, in his ruling, bemoaned Parliament’s inaction on the abortion issue in this regard, the law is the law, and we are entitled to rely on the law as it stands.”
However, Moon’s argument that his client was concealing an abortion is at odds with Levkovic’s original story of falling on the stairs.
This is not the first time Levkovic has been involved in the death of one of her children. In 2002, she and a former partner delivered a live child in a toilet in their apartment. The baby was left in the toilet until it ceased moving and was kept in a plastic bag in the freezer until eventually her pimp Mark Hinds had a friend dispose of it in the Humber River.
Campaign Life Coalition’s Alissa Golob and Shantel Jose appeared separately on Sun News to discuss the case and they both highlighted that if Stephen Woodworth’s 2012 motion 312 had passed, the legal status of the preborn child could be considered in legal cases such as this without necessarily making it an abortion issue.