Her Majesty the Queen v. Meredith Katharine Borowiec, 2016 SCC 11 (Criminal law – Offences – Infanticide)

On appeal from the Court of Appeal for Alberta. In October 2010, a newborn child was found crying in a dumpster. B admitted that she had given birth to the child. She later admitted to having delivered two other babies in 2008 and 2009 and leaving each of them in a dumpster. B was charged with two counts of second degree murder in relation to the deceased newborns. The trial judge acquitted B of murder and found her guilty of two counts of infanticide. The majority of the Court of Appeal dismissed the Crown’s appeal.

Held (7-0): The appeal should be dismissed,

Infanticide is a form of culpable homicide and applies in the narrow set of circumstances where (1) a mother, by a wilful act or omission, kills her newborn child and, (2) at the time of the act or omission, the mother’s mind is “disturbed” either because she is not fully recovered from the effects of giving birth or by reason of the effect of lactation.

The question of the meaning of the phrase “her mind is then disturbed” is one of statutory interpretation. The grammatical and ordinary sense of the words, their place within the Criminal Code, the provision’s legislative history and evolution, and the jurisprudence interpreting the phrase “her mind is then disturbed” do not support the conclusion that Parliament intended to restrict the concept of a disturbed mind to those who have “a substantial psychological problem”. Rather, the phrase “mind is then disturbed” should be applied as follows: (a) the word “disturbed” is not a legal or medical term of art, but should be applied in its grammatical and ordinary sense; (b) in the context of whether a mind is disturbed, the term can mean “mentally agitated”, “mentally unstable” or “mental discomposure”; (c) the disturbance need not constitute a defined mental or psychological condition or a mental illness. It need not constitute a mental disorder under s. 16 of the Criminal Code or amount to a significant impairment of the accused’s reasoning faculties; (d) the disturbance must be present at the time of the act or omission causing the “newly‑born” child’s death and the act or omission must occur at a time when the accused is not fully recovered from the effects of giving birth or of lactation; (e) there is no requirement to prove that the act or omission was caused by the disturbance. The disturbance is part of the actus reus of infanticide, not the mens rea; (f) the disturbance must be “by reason of” the fact that the accused was not fully recovered from the effects of giving birth or from the effect of lactation consequent on the birth of the child.

The trial judge, relying on the defence expert’s opinion and the evidence as a whole, concluded that B’s mind was “disturbed” as a result of not yet having fully recovered from the effects of giving birth. There was no error in the trial judge’s summary of the law of infanticide. Based on his assessment of the evidence, the trial judge was entitled to conclude or have a reasonable doubt that B’s mind was “disturbed” at the time of the offences despite any indication of rational behaviour and wilful blindness.

Reasons for judgment: Cromwell J. (McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner and Brown JJ. concurring)

Neutral Citation: 2016 SCC 11

Docket Number: 36585