Her Majesty the Queen v. Levkovic [Indexed as: R. v. Levkovic]

103 O.R. (3d) 1

2010 ONCA 830

Court of Appeal for Ontario,

Doherty, R.P. Armstrong and Watt JJ.A.

December 7, 2010

Charter of Rights and Freedoms -- Fundamental justice -- Vagueness -- Overbreadth -- Concealing dead body of child -- Phrase "child died before . . . birth" in s. 243 of Criminal Code not unconstitutionally vague -- Trial judge erring in severing word "before" from s. 243 on basis that was vague although correctly holding that was not overbroad -- Canadian Charter of Rights and Freedoms, s. 7 -- Criminal Code, R.S.C. 1985, c. C-46, s. 243.

Charter of Rights and Freedoms -- Timing of Charter application -- Accused charged with concealing dead body of child -- Accused bringing constitutional challenge to s. 243 -- Trial judge not erring in hearing application before any evidence was led and in absence of agreed statement of facts -- Criminal Code, R.S.C. 1985, c. C-46, s. 243.

Criminal law -- Concealing dead body of child -- Elements of offence -- Accused disposed of dead body of child with intent to conceal birth of child -- Fetus must have developed to point where but for external event or other circumstances would likely have been born alive.

Criminal law -- Evidence -- Judicial notice -- Crown appealing accused's acquittal on charge of concealing dead body of child and filing two volumes of English cases tried between 1674 and 1913 to demonstrate "actual workings of English criminal law" -- Cases not before trial judge -- Court of Appeal declining to use English cases as basis for taking judicial notice of legislative facts -- Incomplete or edited reports of prior judicial proceedings not constituting readily accessible sources of indisputable accuracy -- English cases having no evidentiary value but were of precedential value in interpreting elements of offence and terms undefined in Criminal Code provision.

The accused was charged with concealing the dead body of a child contrary to s. 243 of the Criminal Code. The pathologist could not tell if the baby had died before, after or during birth because of the advanced state of decomposition. The accused brought an application attacking the constitutionality of s. 243. The trial judge heard the application before any evidence was led. He found that the words "died before . . . birth" in s. 243 were unconstitutionally vague as he was unable to determine from the record, the Crown's submissions or review of the history of s. 243 and its predecessor enactments, a coherent, unambiguous meaning of [page2 ]"child" in the context of death before birth. He severed the word "before" from s. 243. The Crown acknowledged that it could not establish either the cause or the time of death and thus offered no evidence in support of the allegation contained in the indictment. The accused was acquitted. The Crown appealed. It filed two volumes of English cases tried at the Old Bailey between 1674 and 1913, many of which involved prosecutions for infant homicide and for concealment of birth, seeking to advance a claim that judicial notice should be taken of certain social or legislative facts. These cases were not filed before the trial judge, although his decision was still on reserve when the cases became available.

Held, the appeal should be allowed.

On appeal, the Crown argued that the trial judge erred in hearing the constitutional challenge before any evidence was called and without an agreed statement of fact, although the Crown at trial consented to this procedure. The challenge was directed principally at the language of the offence-creating provisions, and the alleged flaw was that the prohibition was overbroad and void for vagueness, not as it applied to the accused, but in its general operation. Finally, when the prosecutor summarized his evidence after the trial judge's ruling, what could have been established may not have significantly advanced the constitutional inquiry.

On appeal, the accused agreed that the reports of old English cases could assist in establishing English legal precedent but argued that they were not admissible for the broader social history or legislative facts. Although the requirements for judicial notice of legislative facts are a less stringent standard than for adjudicative facts, a court should ensure that the proposed facts arise from sources that are indisputably accurate. While the Old Bailey cases were of persuasive value as legal precedents, they had no evidentiary value, as they were edited and provided an incomplete record of the evidence adduced at trial. The reports of the English cases may assist in explaining the essential elements of the offence of concealing childbirth and other terms which are not defined in the Criminal Code.

The trial judge correctly held that the words "died before . . . birth" were not overbroad and therefore he properly rejected that aspect of the accused's challenge to the constitutionality of s. 243. However, he applied an overly demanding standard of vagueness and erred in finding that the words "died before . . . birth" are unconstitutionally vague in violation of s.7 of the Charter. The essential elements of the offence are that the accused intentionally concealed the body of a child, knowing the child to be dead, with the intention of concealing the fact of its birth. The trial judge failed to properly apply R. v. Berriman, which postulated a viability or "chance of life" test for determining whether a child who died before birth comes within the prohibition in s. 253. A fetus becomes a child when the fetus has reached a stage in its development when, but for some external event or other circumstance, it would likely have been born alive. Section 243, guided by Berriman, lays down an area of risk that gives fair notice of the boundaries of criminal liability and limits the discretion of the police in enforcing the legislation. The purpose of s. 243 is to facilitate state investigation of infant death. By enacting a criminal prohibition against concealment of the dead body of a child, s. 243 preserves crucial evidence. It is important to be wary of using a doctrine of vagueness to prevent or impede state action in furtherance of valid social objects, by requiring a law to achieve a level of precision to which its subject matter fails to lend it.

APPEAL from the acquittal entered by Hill J., 2008 48647 (ON SC), [2008] O.J. No. 3746, 235 C.C.C. (3d) 417 (S.C.J.) on a charge of concealing the dead body of a child.

Cases referred to R. v. Berriman (1854), 6 Cox C.C. 388, apld [page3 ] Other cases referred to Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, 2000 SCC 44, 190 D.L.R. (4th) 513, 260 N.R. 1, [2000] 10 W.W.R. 567, J.E. 2000-1872, 141 B.C.A.C. 161, 81 B.C.L.R. (3d) 1, 23 Admin. L.R. (3d) 175, 3 C.C.E.L. (3d) 165, [2000] CLLC Â230-040, 77 C.R.R. (2d) 189, 99 A.C.W.S. (3d) 1024; Canada (Canadian Human Rights Commission) v. Taylor, 1987 5390 (FCA), [1987] F.C.J. No. 347, [1987] 3 F.C. 593, 37 D.L.R. (4th) 577, 78 N.R. 180, 29 C.R.R. 222, 4 A.C.W.S. (3d) 226 (C.A.); Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, [2004] S.C.J. No. 6, 2004 SCC 4, 234 D.L.R. (4th) 257, 315 N.R. 201, J.E. 2004-350, 183 O.A.C. 1, 180 C.C.C. (3d) 353, 16 C.R. (6th) 203, 46 R.F.L. (5th) 1, REJB 2004-53164, 60 W.C.B. (2d) 81; Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, [2005] S.C.J. No. 33, 2005 SCC 35, 254 D.L.R. (4th) 577, 335 N.R. 25, J.E. 2005-1144, 130 C.R.R. (2d) 99, 139 A.C.W.S. (3d) 1080; Cochrane v. Ontario (Attorney General) (2008), 92 O.R. (3d) 321, [2008] O.J. No. 4165, 2008 ONCA 718, 179 C.R.R. (2d) 310, 242 O.A.C. 192, 170 A.C.W.S. (3d) 508, 61 C.R. (6th) 374, 301 D.L.R. (4th) 414; Danson v. Ontario (Attorney General), 1990 93 (SCC), [1990] 2 S.C.R. 1086, [1990] S.C.J. No. 92, 73 D.L.R. (4th) 686, 112 N.R. 362, 41 O.A.C. 250, 43 C.P.C. (2d) 165, 50 C.R.R. 59, 23 A.C.W.S. (3d) 25; Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, [2002] 3 S.C.R. 209, [2002] S.C.J. No. 61, 2002 SCC 61, 216 D.L.R. (4th) 257, 292 N.R. 296, [2002] 11 W.W.R. 191, J.E. 2002-1713, 4 Alta. L.R. (4th) 1, 312 A.R. 201, 217 Nfld. & P.E.I.R. 183, 164 O.A.C. 280, 167 C.C.C. (3d) 1, 3 C.R. (6th) 209, 96 C.R.R. (2d) 189, [2002] 4 C.T.C. 143, 2002 D.T.C. 7267, 54 W.C.B. (2d) 401; New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47, 177 D.L.R. (4th) 124, 244 N.R. 276, J.E. 99-1756, 216 N.B.R. (2d) 25, 26 C.R. (5th) 203, 66 C.R.R. (2d) 267, 50 R.F.L. (4th) 63, 90 A.C.W.S. (3d) 698; Ontario v. Canadian Pacific Ltd., 1995 112 (SCC), [1995] 2 S.C.R. 1031, [1995] S.C.J. No. 62, 125 D.L.R. (4th) 385, 183 N.R. 325, J.E. 95-1497, 82 O.A.C. 243, 99 C.C.C. (3d) 97, 17 C.E.L.R. (N.S.) 129, 41 C.R. (4th) 147, 30 C.R.R. (2d) 252, 27 W.C.B. (2d) 485; Public School Boards' Assn. of Alberta v. Alberta (Attorney General), 1999 640 (SCC), [1999] 3 S.C.R. 845, [1999] S.C.J. No. 76, [2001] 5 W.W.R. 1, 89 Alta. L.R. (3d) 1; R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, [2001] S.C.J. No. 68, 2001 SCC 70, 205 D.L.R. (4th) 385, 76 C.L.R.B.R. (2d) 1, 276 N.R. 1, J.E. 2001-1952, [2002] CLLC Â220-006, 87 C.R.R. (2d) 189, 108 A.C.W.S. (3d) 819; R. v. Bain, 1992 111 (SCC), [1992] 1 S.C.R. 91, [1992] S.C.J. No. 3, 87 D.L.R. (4th) 449, 133 N.R. 1, J.E. 92-189, 51 O.A.C. 161, 69 C.C.C. (3d) 481, 10 C.R. (4th) 257, 7 C.R.R. (2d) 193, 15 W.C.B. (2d) 81; R. v. DeSousa, 1992 80 (SCC), [1992] 2 S.C.R. 944, [1992] S.C.J. No. 77, 95 D.L.R. (4th) 595, 142 N.R. 1, J.E. 92-1450, 56 O.A.C. 109, 76 C.C.C. (3d) 124, 15 C.R. (4th) 66, 11 C.R.R. (2d) 193, 17 W.C.B. (2d) 215; R. v. Devries (2009), 95 O.R. (3d) 721, [2009] O.J. No. 2421, 2009 ONCA 477, 252 O.A.C. 34, 244 C.C.C. (3d) 354, 81 M.V.R. (5th) 195, 193 C.R.R. (2d) 251; R. v. Find, [2001] 1 S.C.R. 863, [2001] S.C.J. No. 34, 2001 SCC 32, 199 D.L.R. (4th) 193, 269 N.R. 149, J.E. 2001-1099, 146 O.A.C. 236, 154 C.C.C. (3d) 97, 42 C.R. (5th) 1, 82 C.R.R. (2d) 247, 49 W.C.B. (2d) 595; R. v. Hess; R. v. Nguyen, 1990 89 (SCC), [1990] 2 S.C.R. 906, [1990] S.C.J. No. 91, 119 N.R. 353, [1990] 6 W.W.R. 289, J.E. 90-1424, 73 Man. R. (2d) 1, 46 O.A.C. 13, 59 C.C.C. (3d) 161, 79 C.R. (3d) 332, 50 C.R.R. 71, 11 W.C.B. (2d) 199; R. v. Heywood, 1994 34 (SCC), [1994] 3 S.C.R. 761, [1994] S.C.J. No. 101, 120 D.L.R. (4th) 348, 174 N.R. 81, J.E. 94-1938, 50 B.C.A.C. 161, 94 C.C.C. (3d) 481, 34 C.R. (4th) 133, 24 C.R.R. (2d) 189, 25 W.C.B. (2d) 438; R. v. Lindsay (2009), 97 O.R. (3d) 567, [2009] O.J. No. 2700, 2009 ONCA 532, 68 C.R. (6th) 279, 245 C.C.C. (3d) 301, 251 O.A.C. 1, 194 C.R.R. (2d) 1; R. v. Malmo-Levine, [2003] 3 S.C.R. 571, [2003] S.C.J. No. 79, 2003 SCC 74, 233 D.L.R. (4th) 415, 314 N.R. 1, [2004] 4 W.W.R. 407, J.E. 2004-131, 191 B.C.A.C. 1, 23 B.C.L.R. (4th) 1, 179 C.C.C. (3d) 417, 16 C.R. (6th) 1, 114 C.R.R. (2d) 189, 59 W.C.B. (2d) 116; [page4 ] R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, [1999] S.C.J. No. 68, 180 D.L.R. (4th) 1, 248 N.R. 101, [2000] 2 W.W.R. 180, J.E. 99-2312, 75 Alta. L.R. (3d) 1, 244 A.R. 201, 139 C.C.C. (3d) 321, 28 C.R. (5th) 207, 69 C.R.R. (2d) 1, 44 W.C.B. (2d) 124; R. v. Morgentaler (No. 2), 1988 90 (SCC), [1988] 1 S.C.R. 30, [1988] S.C.J. No. 1, 44 D.L.R. (4th) 385, 82 N.R. 1, J.E. 88-220, 26 O.A.C. 1, 37 C.C.C. (3d) 449, 62 C.R. (3d) 1, 31 C.R.R. 1, 3 W.C.B. (2d) 332; R. v. Nova Scotia Pharmaceutical Society, 1992 72 (SCC), [1992] 2 S.C.R. 606, [1992] S.C.J. No. 67, 93 D.L.R. (4th) 36, 139 N.R. 241, J.E. 92-1019, 114 N.S.R. (2d) 91, 74 C.C.C. (3d) 289, 43 C.P.R. (3d) 1, 15 C.R. (4th) 1, 10 C.R.R. (2d) 34, 34 A.C.W.S. (3d) 1092, 16 W.C.B. (2d) 460; R. v. Spence, [2005] 3 S.C.R. 458, [2005] S.C.J. No. 74, 2005 SCC 71, 259 D.L.R. (4th) 474, 342 N.R. 126, J.E. 2005-2230, 206 O.A.C. 150, 202 C.C.C. (3d) 1, 33 C.R. (6th) 1, 135 C.R.R. (2d) 318, 67 W.C.B. (2d) 504, EYB 2005-98281; R. v. Sullivan, 1991 85 (SCC), [1991] 1 S.C.R. 489, [1991] S.C.J. No. 20, 122 N.R. 166, J.E. 91-516, 55 B.C.L.R. (2d) 1, 63 C.C.C. (3d) 97, 3 C.R. (4th) 277, 12 W.C.B. (2d) 495; R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933, [1991] S.C.J. No. 32, 125 N.R. 1, J.E. 91-765, 47 O.A.C. 81, 63 C.C.C. (3d) 481, 5 C.R. (4th) 253, 3 C.R.R. (2d) 1, 12 W.C.B. (2d) 582; Reference re Motor Vehicle Act (British Columbia) S 94(2), 1985 81 (SCC), [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73, 24 D.L.R. (4th) 536, 63 N.R. 266, [1986] 1 W.W.R. 481, J.E. 86-99, 69 B.C.L.R. 145, 23 C.C.C. (3d) 289, 48 C.R. (3d) 289, 18 C.R.R. 30, 36 M.V.R. 240, 15 W.C.B. 343; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 105 (SCC), [1990] 1 S.C.R. 1123, [1990] S.C.J. No. 52, 109 N.R. 81, [1990] 4 W.W.R. 481, J.E. 90-907, 68 Man. R. (2d) 1, 56 C.C.C. (3d) 65, 77 C.R. (3d) 1, 48 C.R.R. 1, 10 W.C.B. (2d) 191; Rodriguez v. British Columbia (Attorney General), 1993 75 (SCC), [1993] 3 S.C.R. 519, [1993] S.C.J. No. 94, 107 D.L.R. (4th) 342, 158 N.R. 1, [1993] 7 W.W.R. 641, J.E. 93-1670, 34 B.C.A.C. 1, 82 B.C.L.R. (2d) 273, 85 C.C.C. (3d) 15, 24 C.R. (4th) 281, 17 C.R.R. (2d) 193, 20 W.C.B. (2d) 589; Ruffo v. Conseil de la Magistrature, 1995 49 (SCC), [1995] 4 S.C.R. 267, [1995] S.C.J. No. 100, 130 D.L.R. (4th) 1, 190 N.R. 1, J.E. 96-50, 35 Admin. L.R. (2d) 1, 33 C.R.R. (2d) 269, 59 A.C.W.S. (3d) 159; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, [2002] S.C.J. No. 3, 2002 SCC 1, 208 D.L.R. (4th) 1, 281 N.R. 1, J.E. 2002-161, 37 Admin. L.R. (3d) 159, 90 C.R.R. (2d) 1, 18 Imm. L.R. (3d) 1, 110 A.C.W.S. (3d) 1104; United Nurses of Alberta v. Alberta (Attorney General), 1992 99 (SCC), [1992] 1 S.C.R. 901, [1992] S.C.J. No. 37, 89 D.L.R. (4th) 609, 135 N.R. 321, [1992] 3 W.W.R. 481, J.E. 92-658, 1 Alta. L.R. (3d) 129, 125 A.R. 241, 71 C.C.C. (3d) 225, 92 CLLC Â14,023 at 12118, 13 C.R. (4th) 1, 9 C.R.R. (2d) 29, 32 A.C.W.S. (3d) 910, 16 W.C.B. (2d) 18; Winko v. British Columbia (Forensic Psychiatric Institute), 1999 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, 175 D.L.R. (4th) 193, 241 N.R. 1, J.E. 99-1277, 124 B.C.A.C. 1, 135 C.C.C. (3d) 129, 25 C.R. (5th) 1, 63 C.R.R. (2d) 189, 42 W.C.B. (2d) 381 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 15 Criminal Code, R.S.C. 1985, c. C-46, ss. 222(1), 223(1), (2), 233, 237, 242, 243

Brian McNeely and Gillian Roberts, for appellant. Delmar Doucette and Jessica Orkin, for respondent. [page5 ]

The judgment of the court was delivered by

[1] WATT J.A.:-- Since July 1, 1893, concealing the dead body of a child has been an indictable offence in Canada. The definition of the offence has always declared it to be immaterial whether the child died before, during or after birth.

[2] On September 18, 2008, a judge of the Superior Court of Justice decided that the words "died before . . . birth" in s. 243 of the Criminal Code, R.S.C. 1985, c. C-46 are unconstitutionally vague. In the result, he severed the preposition "before" from the section, leaving it to read in its material part "whether the child died during or after birth".

[3] The prosecutor acknowledged that he could not establish either the cause or the time of death, thus he offered no evidence in support of the allegation contained in the indictment. The trial judge acquitted Ms. Levkovic.

[4] This appeal requires us to determine whether the trial judge was correct in his conclusion that the "before birth" reference was unconstitutionally vague.

[5] For reasons that I will develop, I am satisfied that the offending phrase "before . . . birth" is neither unconstitutionally vague nor otherwise constitutionally infirm. I would allow the appeal, set aside the acquittal and order a new trial.

The Background

[6] The circumstances [See Note 1 below] underlying the prosecution and its procedural history can be stated in brief terms.

The discovery of the body

[7] On April 5, 2006, an apartment building superintendent in Mississauga was cleaning a recently vacated apartment unit. He noticed an abandoned bag on the balcony. At first, he thought that the bag contained wet rags that he could simply toss down the garbage chute.

[8] The superintendent felt something inside the bag. He opened it and looked. Wrapped in towels was the lifeless body of a "baby". The superintendent called the police. [page6 ]

The post-mortem findings

[9] Advanced decomposition of the body precluded optimal pathological assessment. The body was that of a female child at or near a full-term gestation. The pathologist could not determine the cause of death or whether the child had died before, during or after birth.

The acknowledgement of the respondent

[10] On April 9, 2006, after extensive media coverage of the superintendent's discovery, the respondent went to a local police station. There, in a highly emotional state, she acknowledged that the child was hers. In a later police interview, the respondent said that she had fallen while alone in the apartment. The baby was born there. She put the baby in the bag and left the bag on the balcony.

The procedure followed

[11] The respondent was arraigned and pleaded not guilty to a count that alleged that she:

. . . within a two hundred and forty eight day period, last, past and ending on or about the 5th day of April, 2006 at the City of Mississauga in the Central West Region, unlawfully did dispose of the dead body of a child with intent to conceal the fact that she had been delivered of it by concealing it on the property of [address omitted], Mississauga, contrary to section 243 of the Criminal Code of Canada.

[12] Immediately after arraignment and plea, the constitutional challenge to s. 243 of the Criminal Code began. The prosecutor adduced no evidence. Defence counsel made no admissions. The respondent had waived the preliminary inquiry. There, the prosecutor undertook not to pursue any suggestion that the deceased child had been born alive.

[13] The constitutional challenge proceeded under ss. 7 and 15 of the Canadian Charter of Rights and Freedoms. Among the deficiencies identified in s. 243 were overbreadth and vagueness. The respondent sought a declaration of invalidity to the extent of the breach and dismissal of the indictment because it failed to allege an offence known to law.

The Ruling of the Trial Judge

[14] The trial judge gave lengthy reasons. He rejected the challenge under s. 15, as well as the claim of overbreadth under s. 7. But he concluded that the respondent's s. 7 interest, which was implicated by the prospect of imprisonment on conviction, was breached because of the vagueness of the phrase "child died [page7 ]before . . . birth" in the section. In the result, the trial judge severed the word "before" from s. 243.

The Grounds of Appeal

[15] The Attorney General contends that the trial judge erred in concluding that the reference "child died before . . . birth" was unconstitutionally vague and in granting the remedy of severance for the infringement. The Attorney General seeks a determination of constitutionality and an order for a new trial.

Analysis

[16] At the outset of the hearing of this appeal, the parties skirmished about the extent of the appellant's reliance on reports of several prosecutions at the Old Bailey in London for infant homicide and concealment of birth. The appellant also complained about the adequacy of the factual record in the Superior Court and about the judge's decision to let the challenge proceed in the absence of any evidence, agreed statement of facts or applicable admissions. The issues are related and require determination before the constitutional integrity of s. 243 may be approached.

The preliminary issue: The adequacy of the factual record

[17] After the parties had finished their submissions before the trial judge, but before he had rendered his decision on the constitutional issue, researchers in England released online reports of nearly 200,000 cases tried at the Old Bailey, the Central Criminal Court in London, between 1674 and 1913. Among the reported cases were many involving prosecutions for infant homicide and for concealment of birth.

[18] Among the several Books of Authorities the appellant has filed for use on this appeal are two volumes of "Old Bailey cases". These materials, which were not provided to the trial judge, are relied upon to demonstrate the "actual workings of the English Criminal Law".

The positions of the parties

[19] The appellant says that the reports of the Old Bailey cases reveal several features about the origins and application of the concealment offence. These features are of service in demonstrating errors in the analysis and ultimate conclusion of the trial judge.

[20] The appellant points out that the Old Bailey cases negate any link between the concealment offence and the former crime [page8 ]of abortion, [and] thus rebut any suggestion that the abortion cases can inform the content of the concealment offence or that the concealment offence was enacted to buttress the crime of abortion. Further, the authorities demonstrate that the concealment offence was not enacted to punish women for having sex outside the bonds of marriage.

[21] According to the appellant, these authorities reveal that juries were eager to acquit young women of both child homicide and concealment of birth on virtually any pretext. Accidental death and lack of proven "disposal", "concealment" or birth were frequently successful defences.

[22] Further, the authorities make it clear that investigations of and prosecutions for the concealment crime invariably include case-specific medical evidence and at or near full-term children. In the event of conviction, the sentences imposed tend to be either non-custodial or short-term imprisonment dominated by rehabilitative sentencing principles.

[23] In the result, the appellant says, these authorities indicate the very limited role the phrase "child died before . . . birth" has had in the operation of the provision, thereby the error in its use to found a determination of unconstitutionality.

[24] The respondent takes no issue with reliance upon the Old Bailey cases as persuasive legal precedent, but resists the more expansive use that the appellant seeks to make of them.

[25] At the outset, the respondent points out that the authorities upon which the appellant relies are edited reports. They rehearse the arguments advanced and record the conclusion of the court, usually a trial judge, but contain minimal reference to the evidence adduced at trial. They cannot form the basis for judicial notice, nor can they be utilized as adjudicative, social or legislative facts in the determination of the constitutional issue.

[26] To the appellant's more general complaint that the trial judge was wrong to proceed with the constitutional challenge in the complete absence of evidence, the respondent reminds us that the prosecutor at trial was content to proceed on this basis. It follows, the respondent submits, that the appellant, absent an application to adduce fresh evidence, must take the record as it exists and ought not to be permitted to expand it indirectly by attempting to make evidentiary use of the Old Bailey cases.

The governing principles

[27] The preliminary issues raised in this case invite recall of the principles governing the extent of factual foundation required to determine the constitutionality of legislation and those that define the limits of judicial notice. [page9 ]

The need for an adequate factual foundation

[28] It is difficult to understate the importance of a factual basis in constitutional challenges: R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, [1999] S.C.J. No. 68, at para. 38; R. v. DeSousa, 1992 80 (SCC), [1992] 2 S.C.R. 944, [1992] S.C.J. No. 77, at p. 954 S.C.R. Two kinds of facts are involved: -- legislative facts -- adjudicative facts Danson v. Ontario (Attorney General), 1990 93 (SCC), [1990] 2 S.C.R. 1086, [1990] S.C.J. No. 92, at p. 1099 S.C.R.

[29] Adjudicative facts concern the immediate parties to the prosecution. They respond to the query "Who did what to whom, where, when, how and with what intent or motive?": Danson, at p. 1099 S.C.R. Adjudicative facts are specific to the case being prosecuted, thus must be established by evidence that is relevant, material and admissible: Danson, at p. 1099 S.C.R.; Mills, at para. 38.

[30] Legislative facts help to establish the purpose and background of legislation, including the social, economic and cultural context in which the legislation was enacted. Of necessity, these facts are of a more general nature. The admissibility requirements for legislative facts are less rigorous than those that govern adjudicative facts: Danson, at p. 1099 S.C.R.; Mills, at para. 38.

[31] Social facts are cousins of legislative facts. Each is relevant to the reasoning process and may involve policy considerations: R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, [2005] S.C.J. No. 74, at para. 58. Evidence of social facts is social science research engaged to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a specific case: Spence, at para. 57.

[32] In this case, the respondent brought her constitutional challenge immediately after arraignment and plea. The hearing followed over three days. The trial judge reserved his decision on the challenge. No evidence was adduced in support of the allegations contained in the indictment. Four and one-half months later, the trial judge released his reasons in response to the constitutional challenge. The prosecutor gave a brief summary of the nature of his case, offered no evidence in support of it and invited the trial judge to acquit the respondent. The trial judge did so. [page10 ]

[33] It is well-settled that, as a general rule, a trial judge is entitled to reserve judgment on any application made at the outset of trial proceedings until the end of the case. In other words, the judge may decline to rule on the application until all the evidence has been heard: DeSousa, at p. 954 S.C.R. The decision whether to rule on the application at the outset, or to await the introduction and conclusion of the evidence, rests within the discretion of the trial judge: DeSousa, at p. 954 S.C.R.

[34] The exercise of this discretion is informed by two policy considerations: the policy that discourages adjudication of constitutional challenges without a factual foundation and the policy that enjoins fragmentation of criminal proceedings by interlocutory proceedings that take on a life of their own: DeSousa, at p. 954 S.C.R. Both of these policies favour disposition of the application at the end of the evidence in the case: DeSousa, at p. 954 S.C.R. A trial judge should not depart from these policies in the absence of a strong reason for doing so: DeSousa, at p. 954 S.C.R.

[35] Sometimes it will be more economical to decide constitutional questions before proceeding to trial on the evidence relied upon in support of the allegations. Within this, exception to the general rule may be an apparently meritorious Charter challenge of the law under which an accused is charged that does not depend on facts to be elicited during the trial: DeSousa, at p. 955 S.C.R.; Mills, at para. 37.

The scope and role of judicial notice

[36] It is the reality in many Charter challenges that the social or legislative facts are likely to prove dispositive: Spence, at para. 64. While the limits of judicial notice outside the realm of adjudicative facts are inevitably somewhat elastic, the application of the doctrine, which dispenses with the need for formal proof of facts that are clearly uncontroversial or beyond reasonable dispute, is not unprincipled: Spence, at para. 63; R. v. Advance Cutting & Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209, [2001] S.C.J. No. 68, at para. 226.

[37] It is also worth reminder that simply labelling an issue as one involving a "social fact" or a "legislative fact" does not afford a court carte blanche to put aside the need to examine the trustworthiness of the "facts" sought to be judicially noticed. Neither may counsel bootleg "evidence in the guise of authorities": Spence, at para. 58; Public School Boards' Assn. of Alberta v. Alberta (Attorney General), 1999 640 (SCC), [1999] 3 S.C.R. 845, [1999] S.C.J. No. 76, at para. 3. [page11 ]

The principles applied

[38] The appellant advanced a tepid submission that the trial judge erred in embarking on the constitutional challenge to s. 243 without a satisfactory evidentiary foundation for the claim.

[39] I would not give effect to this submission for several reasons.

[40] First, the authorities that insist upon an adequate factual foundation to ground a constitutional challenge recognize equally that the general rule is not inflexible or intolerant of exception in individual cases: DeSousa, at p. 954 S.C.R.; Mills, at para. 38. To some extent, the nature of the challenge advanced, the interest at stake and the likelihood or improbability that the evidence to be adduced at trial would assist the resolution of the issue are of importance in determining whether the immediate challenge will be permitted or determined: DeSousa, at p. 955 S.C.R.; Mills, at para. 41.

[41] Second, counsel at trial agreed on the procedure followed. To be more specific, the prosecutor did not ask the trial judge to reserve his decision on the constitutional challenge until the conclusion of the evidence adduced at trial. Nor did counsel for the respondent at trial suggest that evidence should have been heard or an agreed statement of facts be filed to provide a factual foundation or context for the challenge.

[42] Third, the challenge here was directed principally at the language of the offence-creating provisions. The liberty interest implicated was the prospect of imprisonment on conviction. The flaw alleged was that the prohibition was overbroad and void for vagueness, not as it applied to the respondent, but in its general operation.

[43] Finally, as it turned out, when the prosecutor summarized his evidence after the trial judge's ruling, what could have been established may not have advanced the inquiry into constitutionality significantly at all events.

The Old Bailey authorities and judicial notice

[44] The Old Bailey authorities were not put before the trial judge, although they became available while the trial judge had his decision under reserve. As legal precedents, the decisions are of persuasive value, their influence significantly attenuated by their brevity and minimal factual content.

[45] To the extent the appellant seeks to rely on these precedents to advance a claim that judicial notice should be taken of certain social or legislative facts, the submission is misplaced. [page12 ]

[46] Although we apply the requirements of judicial notice less stringently to the admission of legislative facts than to adjudicative facts, we must nevertheless proceed cautiously to take judicial notice, even as "legislative facts", of things that are reasonably open to dispute, particularly when they relate to matters that could be dispositive of the challenge: Danson, at p. 1099 S.C.R.; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, [2001] S.C.J. No. 34, at paras. 48-49; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, [2003] S.C.J. No. 79, at para. 28.

[47] A court may equip itself to take judicial notice of some material fact that is capable of immediate and accurate demonstration by resort to readily available sources of indisputable accuracy: Find, at para. 48; Spence, at para. 53. I have been unable to find any precedent, however, to support a claim that "readily accessible sources of indisputable accuracy" include incomplete or edited reports of prior judicial proceedings.

[48] To permit prior judicial precedent to ground a claim of judicial notice of an adjudicative or legislative fact in a later prosecution would permit a party, in effect, to sidestep the traditional rules governing the introduction and testing of evidence, to dilute the standard required for judicial notice of facts and to substitute precedent for proof. This use of authority harkens back to the protest of Mahoney J.A. in Canada (Canadian Human Rights Commission) v. Taylor, 1987 5390 (FCA), [1987] F.C.J. No. 347, [1987] 3 F.C. 593 (C.A.), at p. 608 F.C., against "bootlegging evidence in the guise of authorities": Public School Boards' Association of Alberta, at para. 3.

[49] The Old Bailey cases are of persuasive value as legal precedents. They may assist in elucidating the essential elements of the concealment of childbirth offence and in attributing meaning to certain terms used in the statute, but not defined there. Further, they may shed some light on the purpose underlying the creation of the offence. But they have no evidentiary value.

[50] The preliminary issues set to one side, it is time to turn to the merits of the appeal.

The first ground: Is s. 243 void for vagueness?

[51] The principal complaint of the appellant is that the trial judge erred in holding that the language "child died before . . . birth" was void for vagueness and in remedying the constitutional deficiency by striking the word "before" from s. 243.

The reasons of the trial judge

[52] The trial judge described the actus reus of the offence of s. 243 as disposal of the remains of a child after birth or delivery. [page13 ]He concluded that the terms "birth" and "delivered", as used in the section, did not include compelled childbirth at any stage of gestation by an induced abortion. Concealment of pregnancy was not part of the actus reus.

[53] The trial judge then examined the mens rea of the offence -- the intent to conceal the fact of a birth. He concluded that the mens rea did not include the intent to conceal pregnancy.

[54] According to the trial judge, the legislative purpose underlying the enactment of the predecessor of s. 243 included the protection of a vulnerable segment of society, unborn children and effective investigation of suspicious infant death.

[55] For the trial judge, the critical issue was whether the term "child", as it applied to the period before birth, provided an intelligible standard in that it gave fair notice to ordinary persons of the scope of risk of criminal liability and it avoided the potential for arbitrary enforcement.

[56] The trial judge bemoaned the absence of expert evidence about fetal viability, medical consensus about the meaning of live birth and of the ability of forensic pathologists to determine the cause of infant deaths. These were not subjects about which the trial judge considered that he could take judicial notice.

[57] The trial judge considered the "chance of life" standard proposed by the prosecutor. He noted that the degree of probability involved in the standard was unclear and could be determined in any of several ways. The absence of any coherent, unambiguous meaning for "child before birth" rendered the provision void for vagueness according to the trial judge.

[58] The conclusion of the trial judge seems rooted in three paragraphs of his lengthy reasons [at paras. 212-14]:

Although flexibility of interpretation and application of statutory terminology is not necessarily synonymous with vagueness, and recognizing the critical role of the judiciary in interpreting legislators' intent, I am unable to determine from the record in this case, the respondent's submissions, or review of the history of s. 243 and its predecessor enactments, a coherent, unambiguous meaning of "child" in the context of death before birth. In these circumstances, in my view, it is for Parliament, not the courts, to decide the appropriate definitional interpretation.

Albeit in a different context, the words of Wilson J. in Morgentaler, at 563, are apposite here -- this is a matter best left to "the informed judgment of the legislature which is in a position to receive guidance on the subject from all the relevant disciplines". A legislature could of course prohibit the disposition of product of any still or life- birth with the concealment intent, or define "the standard for prohibited conduct in terms of gestational age" (Fitzpatrick, at 571) using a conclusive or rebuttable presumption respecting the fetus' capacity for live-birth. Or, as in s. 223(1), a definitional attempt of "chance of life" could be crafted narrowing the ambiguity attaching to the interpretation of the commencement point for post-natal life. [page14 ]

In the result, the applicant has established that the impugned words are unconstitutionally vague and therefore inconsistent with the principles of fundamental justice already reviewed.

The positions of the parties

[59] The appellant says that the trial judge applied the wrong test for vagueness. He substituted a more onerous standard than the law requires. The threshold for finding a statutory provision void for vagueness is very high. The only provisions that warrant a finding of unconstitutionality on this ground are those that are truly unintelligible. Section 243 is not so lacking in precision that it fails to provide sufficient guidance for legal debate.

[60] It is the appellant's position that to provide fair notice of an area of risk does not require absolute precision in the language used. What is essential is that the statute provide reasonable notice to persons that their conduct approaches an area of risk. But the trial judge demanded more. He seems to have concluded that the offence-creating provision was unconstitutionally vague because he could not determine a coherent, unambiguous meaning for "child" in the context of a death that occurred before the child was born.

[61] The appellant contends that the terms of s. 243 also permit fair enforcement of the prohibition. The language used consists principally of readily definable terms that identify an area of risk. They include a fault element. That medical experts may be required to assist in determining whether a prosecution should be undertaken is not an indicium of vagueness.

[62] The appellant further faults the trial judge for failing to take into account the mens rea component of the offence in determining whether the allegation of unconstitutional vagueness should prevail. Its inclusion clarifies the reach and limits the effect of the prohibition, ensuring that inadvertent breaches are not criminal nor is conduct undertaken in good faith within the prohibition's sweep.

[63] The appellant argues that the trial judge erred in his approach to an application of the "chance of life" standard of R. v. Berriman (1854), 6 Cox C.C. 388. The trial judge should have received expert evidence on the viability issue and not relied on decisions in dated abortion cases to conclude that viability was a medical not a legal concept. He failed to analyze Berriman on its own merits and as a legal test. In the result, the trial judge's conclusion that the physical maturity test of Berriman was unworkably vague reflects error.

[64] To determine whether the phrase "child died before . . . birth" is unconstitutionally vague requires consideration of [page15 ]several factors, including the purpose of the provision, the governing legal principles, the operation of the law in practice, the surrounding statutory provisions and the policies underlying the vagueness doctrine. This analysis compels the conclusion that s. 243 is not unconstitutionally vague.

[65] The respondent says that the trial judge got it right.

[66] In this case, the respondent argues, her liberty and security interests were implicated in two different ways. Not only may a conviction result in a sentence of imprisonment, but her personal autonomy, as a female, to make fundamental life choices, including whether to disclose the natural end of her pregnancy, implicated her liberty interest under s. 7. The dual nature of her s. 7 interests affected is a contextual factor affecting the vagueness analysis and one that demands greater, rather than lesser, precision in the language of the prohibition.

[67] The respondent submits that the appellant's reliance on mens rea as a factor negating what is otherwise a hopelessly vague statute is misplaced. The offending language is a component of the actus reus. Vagueness in the actus reus of necessity spills over to mens rea because of the requirement that an accused's conduct be intentional, wilfully blind or reckless with respect to the elements of the actus reus.

[68] The respondent takes issue with the appellant's complaint about the failure of the trial judge to receive any evidence on the challenge. The prosecutor at trial, together with the appellant's trial counsel, agreed to proceed in the absence of the evidence. The trial judge had the authority to require the parties to adduce evidence, but no one asked him to do so. He can scarcely be faulted for proceeding with the challenge in accordance with the positions of the parties.

[69] The respondent says that the trial judge treated Berriman as a legal test. He examined whether s. 243, as interpreted through Berriman, provided a basis for coherent judicial interpretation and identified a solid core of meaning. He found the results of the analysis inherently ambiguous, thus impermissibly vague.

[70] The respondent also takes issue with the appellant's reliance on police, prosecutorial and judicial discretion as factors in the vagueness analysis. It is no answer to a claim of vagueness that charges may not be laid, prosecuted or result in convictions. None of these factors respond to the impermissible vagueness of the statutory language.

The governing principles

[71] The submissions of the parties and the lengthy reasons of the trial judge ranged over a great many issues, medical, legal [page16 ]and philosophical. For my part, I prefer to concentrate my discussion of the governing principles on the terms of the offence created by s. 243 of the Criminal Code, the s. 7 Charter interests of liberty and security of the person, and the related, yet discrete, doctrines of vagueness and overbreadth and their influence on the constitutionality of s. 243. Along the way, I will examine the decision in Berriman.

The offence of child concealment

[72] Child concealment has a venerable lineage as a crime in Canada. As it approaches its 120th anniversary of residence in the Criminal Code, child concealment has changed little: a few words moved around, but nothing of importance for our purposes. Its current place is s. 243 of the Criminal Code. Its current terms are these:

243. 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.

[73] The essential elements of this offence include an actus reus, the disposal of a dead body of a child and a mens rea that extends beyond the intentional commission of the actus reus to include the specific or ulterior intent to conceal the fact that the mother has been delivered of the child.

[74] The actus reus or external circumstances of the offence require the prosecutor to prove beyond a reasonable doubt (i) that what the accused did amounted to a disposal; (ii) that the subject matter of which the accused disposed was a dead body; and (iii) that the dead body was that of a child. Inclusion of the clause "whether the child died before, during or after birth" would seem to render immaterial the time during the birth process at which the child died.

[75] The core elements of the actus reus -- disposal, dead body and child -- are not defined in the section, nor elsewhere in the Criminal Code. The term "newly-born child", which is of significance for the offence of infanticide defined in s. 233, means a person under the age of one year. Section 223(1) defines when a child becomes a human being, thus when killing a child may form the basis for a prosecution of murder or manslaughter. Section 223(2) declares it to be homicide when a person causes [page17 ]injury to a child before or during its birth as a result of which a child dies after becoming a human being.

[76] The fault element or mens rea in the crime of child concealment consists of the intentional disposal of the dead body of a child. Proof of knowledge of the character of the object disposed of is also essential to the prosecutor's case. But there is more: the prosecutor must also prove that in disposing of the dead body of a child, the accused intended to conceal the fact that the child's mother had been delivered of the child.

[77] Section 243 is not enacted in gender-specific terms. Unlike ss. 233 and 237 (infanticide) and 242 (neglect to obtain assistance in childbirth), the principal in the offence of s. 243 is not restricted to a "female person".

The Berriman standard

[78] To provide meaning for the term "child" as it is used in "the child died before . . . birth" in s. 243, the prosecutor invoked the standard articulated by Erle J. in his charge to the jury in Berriman.

[79] In Berriman, rumours were afloat in Ms. Berriman's neighbourhood that she had given birth to a child. What fuelled the suspicion, apparently, was Ms. Berriman's gradual enlargement, followed by a sudden recovery of "her usual form". A police officer paid a visit to Ms. Berriman, confronted her about her recent delivery and suggested that she had either murdered or concealed the birth of her child. Berriman's response formed a substantial part of the prosecutor's case against her, along with evidence about recovery of some calcined bones of a child of seven to nine months' gestation.

[80] Erle J. left the case to the jury, instructing them in these terms:

This offence cannot be committed unless the child had arrived at that stage of maturity at the time of birth, that it might have been a living child. It is not necessary that it should have been born alive, but it must have reached a period when, but for some accidental circumstances, such as disease on the part of itself or of its mother, it might have been born alive. There is no law which compels a women to proclaim her own want to chastity, and if she had miscarried at a time when the foetus was but a few months old, and therefore could have had no chance of life, you could not convict her upon this charge. No specific limit can be assigned to the period when the chance of life begins, but it may, perhaps, be safely assumed that under seven months the great probably is that the child would not be born alive. Berriman, at p. 390 Cox C.C.

[81] In Berriman's case, as under s. 243, the offence can be committed even if the child was not born alive. To determine [page18 ]whether a child not born alive comes within the prohibition, Berriman postulates a "chance of life" standard. Without a chance of life, a foetus would not be a "child". Erle J. rejected any specific limit at which a chance of life begins, but considered it a safe assumption that "under seven months the great probably [sic] is that the child would not be born alive".

Liberty and security of the person

[82] Among other things, s. 7 guarantees to everyone the right to liberty and to security of the person. To be constitutionally sound, any infringement of either right must be in accordance with the principles of fundamental justice.

[83] The term "liberty" includes freedom from physical restraint. Thus, any law that imposes a penalty of imprisonment, whether mandatory or discretionary, deprives a person of liberty. It follows that such a law must conform to the principles of fundamental justice to be constitutionally valid: Reference re Motor Vehicle Act (British Columbia) S 94(2), 1985 81 (SCC), [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73, at pp. 515, 529 S.C.R.; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 105 (SCC), [1990] 1 S.C.R. 1123, [1990] S.C.J. No. 52, at pp. 1140, 1215 S.C.R. ("Prostitution Reference"); R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933, [1991] S.C.J. No. 32; and Malmo- Levine, at para. 84.

[84] But, "liberty" is not restricted to freedom from physical restraint. The term also applies when a law prevents an individual from making "fundamental personal choices": Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, at paras. 49 and 54.

[85] The phrase "security of the person" in s. 7 includes control over a person's body, extending beyond health and safety: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, [2004] S.C.J. No. 6, at para. 3; R. v. Morgentaler (No. 2), 1988 90 (SCC), [1988] 1 S.C.R. 30, [1988] S.C.J. No. 1; Rodriguez v. British Columbia (Attorney General), 1993 75 (SCC), [1993] 3 S.C.R. 519, [1993] S.C.J. No. 94; New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47, at paras. 61 and 116. See, also, Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, [2005] S.C.J. No. 33; and Blencoe, at para. 98.

Vague laws

[86] Vague laws violate the principles of fundamental justice. If a vague law causes or amounts to a deprivation of a person's life, liberty or the security of his or her person, the law offends s. 7 of the Charter. [page19 ]

[87] Vague laws offend two fundamental values of our legal system. They do not provide fair notice of what is prohibited, thus making compliance with the law difficult. Further, they do not provide clear standards for those entrusted with their enforcement to enforce them. As a result, vague laws contribute or lead to arbitrary enforcement.

[88] Several principles emerge from the authorities that have considered complaints of constitutional infringement based on vagueness.

[89] First, merely because a statute is broad and far reaching in its facial scope does not mean that it is unconstitutionally vague. What is crucial is whether a court examining the provision can give sensible meaning to its terms: Prostitution Reference, at p. 1160 S.C.R.

[90] Second, an offence need not be codified in statutory form to survive a vagueness challenge, although statutes may tend to provide greater precision than the ever-evolving common law: United Nurses of Alberta v. Alberta (Attorney General), 1992 99 (SCC), [1992] 1 S.C.R. 901, [1992] S.C.J. No. 37, at p. 933 S.C.R.

[91] Third, inclusion in a statute of a term that has been the subject of debate and conflicting views as used in predecessor statutes does not render the provision void for vagueness, at least where the legislature has sufficiently delineated the area of risk and the terms of the debate: R. v. Nova Scotia Pharmaceutical Society, 1992 72 (SCC), [1992] 2 S.C.R. 606, [1992] S.C.J. No. 67, at p. 657 S.C.R.

[92] Legislation that is very broad and general may withstand scrutiny for vagueness provided its scope is reasonably delineated so that legal debate can occur about the application of the provision to the peculiar circumstances of an individual case: Ontario v. Canadian Pacific Ltd., 1995 112 (SCC), [1995] 2 S.C.R. 1031, [1995] S.C.J. No. 62, at para. 70; Winko v. British Columbia (Forensic Psychiatric Institute), 1999 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, at paras. 68-69.

[93] Despite its frequent engagement by litigants who mount constitutional challenges, vagueness has been rarely applied by courts to strike down federal or provincial legislation. The governing principles have been narrowly defined, essentially rejecting vagueness where judicial interpretation of the provision is possible: R. v. Lindsay (2009), 2009 ONCA 532, 97 O.R. (3d) 567, [2009] O.J. No. 2700, 245 C.C.C. (3d) 301 (C.A.), at para. 22; Canadian Pacific, at para. 79. The threshold for the application of the vagueness doctrine is relatively high: Lindsay, at para. 22; Winko, at para. 68.

[94] By their very nature, laws must cover myriad sets of circumstances. This acknowledgement of the self-evident or intuitive [page20 ]grasp of the obvious makes it impossible to draft laws that precisely foresee each case that might arise. The situation is further complicated by the ambiguity and imprecision inherent in almost any word in either of our official languages: Winko, at para. 68; R. v. Devries (2009), 2009 ONCA 477, 95 O.R. (3d) 721, [2009] O.J. No. 2421 (C.A.), at paras. 35-36.

[95] To imbue the rule against vagueness with some content, it is perhaps best to return to the core values the rule protects: fair notice to citizens and corresponding limitations on law enforcement discretion. A law is unconstitutionally vague if it fails (i) to give fair notice about the conduct prohibited by the law; or (ii) to impose real limitations on the discretion of those charged with enforcement. Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, [2002] S.C.J. No. 3, at paras. 80-99.

[96] What seems clear from the authorities is that the constitutional standard of precision that the vagueness doctrine demands cannot be very exacting. We cannot require a law to ascend to a standard of precision to which neither its subject matter nor the language in which it is expressed lend themselves: Nova Scotia Pharmaceutical Society, at pp. 606, 642 S.C.R.; Ruffo v. Conseil de la Magistrature, 1995 49 (SCC), [1995] 4 S.C.R. 267, [1995] S.C.J. No. 100, at paras. 111-12. We do not and cannot require absolute certainty or laboratory precision: Prostitution Reference, at pp. 1122 and 1156 S.C.R. Just because the law may be open to more than one interpretation does not offend vagueness principles: vagueness is only constitutionally terminal if the law cannot, even with judicial interpretation, provide meaningful standards of conduct: Prostitution Reference, at pp. 1157-61 S.C.R.; Nova Scotia Pharmaceutical Society, at pp. 606 and 626-27 S.C.R.

[97] It is not enough to engage the vagueness doctrine that a provision is subject to interpretation, or that there are cases that will land close to the line: Cochrane v. Ontario (Attorney General) (2008), 2008 ONCA 718, 92 O.R. (3d) 321, [2008] O.J. No. 4165 (C.A.), at para. 38.

Overbreadth

[98] Overbreadth is a discrete ground upon which a law may be constitutionally unsound. It is related to vagueness because both overbreadth and vagueness emanate from a common source -- a lack of legislative precision in the means used to accomplish [page21 ]the legislative objective: R. v. Heywood, 1994 34 (SCC), [1994] 3 S.C.R. 761, [1994] S.C.J. No. 101, at p. 792 S.C.R.; Lindsay, at para. 16.

[99] Overbreadth refers to a law that restricts liberty more than is necessary to accomplish its purpose. Overbreadth is established only where the adverse effect of the legislation on individuals subject to it is grossly disproportionate to the state interest that the legislation seeks to protect or achieve: Lindsay, at para. 21; Heywood, at p. 792 S.C.R. The "grossly disproportionate" standard accords substantial elbow room to the legislature's assessment of the risk to public safety and the need for the law under siege: Lindsay, at para. 21; Malmo-Levine, at para. 143; Cochrane, at para. 31.

The relevance of prosecutorial and judicial discretion

[100] A claim of unconstitutionality, whether advanced as vagueness, overbreadth or otherwise, is not answered by reliance on prosecutorial or judicial discretion to confine its application: R. v. Hess; R. v. Nguyen, 1990 89 (SCC), [1990] 2 S.C.R. 906, [1990] S.C.J. No. 91, at p. 924 S.C.R.; Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, 2002 SCC 61, [2002] 3 S.C.R. 209, [2002] S.C.J. No. 61, at para. 45; R. v. Bain, 1992 111 (SCC), [1992] 1 S.C.R. 91, [1992] S.C.J. No. 3, at pp. 103-104 S.C.R.

The principles applied

[101] On the basis of a constitutional challenge advanced immediately after arraignment and plea, unsupported by any evidence, admissions or agreed statement of fact, the trial judge found a portion of a statutory provision almost 120 years old was unconstitutionally vague. The remedy he chose was to strike out a single word, "before", from the provision. In my view, the trial judge erred in his determination of unconstitutionality. He applied an overly demanding standard of vagueness and failed to properly apply the decision in Berriman in reaching his conclusion.

The statutory framework

[102] Section 243 is the second of two indictable offences grouped under the heading Neglect in Childbirth and Concealing Dead Body. The concealment offence has been part of our Criminal Code since our first Criminal Code came into force on July 1, 1893.

[103] The concealment offence is one of several offences and related provisions that govern conduct that occurs prior to, contemporaneous with and subsequent to childbirth and involves the death of a child or disposal of the child's dead body. [page22 ]

[104] As a general rule, homicide requires the death of a human being: Criminal Code, s. 222(1). But under s. 223(2) of the Criminal Code, a person commits homicide if they cause injury to a child before or during birth as a result of which the child dies after becoming a human being.

[105] A foetus is not a "human being" or "person" for the purposes of the law of homicide: R. v. Sullivan, 1991 85 (SCC), [1991] 1 S.C.R. 489, [1991] S.C.J. No. 20, at p. 502 S.C.R. A child becomes a human being, thus their death may be the subject of a prosecution for unlawful homicide, when the child has completely proceeded, in a living state, from the body of its mother. It is of no moment whether the child has breathed, has an independent circulation or has been severed from the navel string: Criminal Code, s. 223(1).

[106] A mother who fails to obtain assistance in childbirth commits an offence under s. 242 of the Criminal Code.

[107] As a matter of law, proof of a crime of unlawful homicide is not foreclosed because the body of the deceased cannot be found, but a dead body is an indispensible aid to completion of the prosecutor's proof. A dead body assists in proving the fact and cause of death, in turn, whether the death was natural or caused by a human agency. In some cases, the body may assist in establishing the identity of the killer.

[108] The purpose of s. 243 is to facilitate state investigation of infant death. By enacting a criminal prohibition against concealment of the dead body of a child, s. 243 preserves crucial evidence.

[109] Concealment of the dead body impedes, in some cases prevents, timely forensic examination of the body. In turn, timely forensic examination of the dead body helps to determine when and how death occurred. A determination of when and how death occurred often assists in establishing whether the death attracts criminal liability.

[110] Concealment of the dead body of a child rends the nexus or link between child and mother. The ineluctable effect of such a severance is the elimination of a valuable source of information about the circumstances in which death occurred, thereby whether criminal liability will attach and to whom.

The meaning of "child"

[111] In many cases, post-mortem examination of the remains will yield an opinion about cause of death and the relationship between death and the birth process. In other cases, like this, the state of the remains will not permit an informed medical opinion about either subject. [page23 ]

[112] The Criminal Code declares when a child becomes a human being. When a child has completely proceeded, in a living state, from the body of its mother, the child becomes a human being for the purposes of the Criminal Code. It is of no consequence for Criminal Code purposes whether the child has breathed, has an independent circulation or remains attached to the navel string. This transition into a human being is of signal importance for the law of homicide. But for the first year of life, at least so far as the Criminal Code is concerned, the new "human being" remains a child, a "newly-born child".

[113] The Criminal Code offers no assistance about the meaning of "child" otherwise than in the transition from child to human being. In other words, the Criminal Code does not help us about when a foetus becomes a child for the purpose of determining whether certain conduct involving the child will attract criminal liability.

[114] The test that Berriman proposes, a chance of life standard, marks the outer boundary of when a foetus becomes a child for the purpose of the concealment offence at common law. Under Berriman, for a foetus to become a child, the foetus must have reached a period when, but for some accidental circumstances, such as disease, it might have been born alive. The standard is one of viability. Under Berriman, a foetus becomes a child when it reaches a stage in its development from which it might grow into a human being, given proper care.

[115] For the purposes of establishing liability for an offence under s. 243 in cases involving death before birth or those in which the time of death in relation to birth is unclear, a foetus becomes a child when it (the foetus) has reached a stage in its development when, but for some external event or other circumstances, it would likely have been born alive.

[116] To determine whether the disposal was of the "dead body of a child", the trier of fact must consider all the circumstances. In the usual course, the trier of fact's decision will be informed by expert medical evidence about the course of the pregnancy, fetal age and viability and the cause of death. In some instances, there may also be evidence about the conduct of the child's mother and others during the course of the pregnancy and at times contemporaneous with the death of the child. The examples given are intended as illustrative not as exhaustive of the evidence that might be adduced.

The vagueness standard

[117] The trial judge concluded that part of s. 243 was void for vagueness because he could not determine a coherent unambiguous [page24 ]meaning for the term "child" in the context of a death that occurred before the child's birth.

[118] Neither the Charter nor the vagueness doctrine require that the statute provide absolute certainty in its application by the language it uses. Legal rules only provide a framework, a behavioural guide. They do so by approximation, by delineating a risk zone. We can expect no more of them. Certainty is achieved only where the law is actualized by a competent authority: Nova Scotia Pharmaceutical Society, at p. 638 S.C.R.

[119] Language is not a scientific instrument, an exact tool. It cannot be argued that an enactment can and must provide enough guidance to predict the legal consequences of any given course of conduct in advance, else it be shunted to the sidelines, a constitutional casualty. An enactment must enunciate some boundaries, which create an area of risk: Nova Scotia Pharmaceutical Society, at p. 639 S.C.R.

[120] Section 243, guided by the principles described in Berriman in the present context, lays down an area of risk that gives fair notice to persons of the boundaries of criminal liability and limits the discretion of police in enforcing the legislation. We must be wary of using the doctrine of vagueness to prevent or impede state action in furtherance of valid social objects, by requiring a law to ascend to a level of precision to which its subject matter fails to lend itself: Nova Scotia Pharmaceutical Society, at p. 642 S.C.R.

[121] The portion of s. 243 upon which the trial judge focused here cannot be uprooted from its context and subjected to microscopic scrutiny. This offence requires proof of knowledge of the character of the subject matter disposed of, the dead body of a child, together with a purpose, or ulterior intention, of concealment of the birth. It is one of several offences, fatal offences against the person, that enjoin conduct that causes or contributes to the death of another. A provision that renders investigation of death less difficult forms an integral part of this statutory scheme.

[122] It is also worth reminder that a crime consists of an actus reus and a mens rea. Each may have several components. To determine whether the definition of a crime is impermissibly vague requires a consideration of the enactment as a whole, including its mens rea. It is the provision as a whole that must define an area of risk, provide fair notice and curtail law enforcement discretion, not each individual noun, adjective, adverb, verb or preposition. And that, in my view, s. 243 does. [page25 ]

Overbreadth

[123] The trial judge rejected the respondent's claim that inclusion of the words "child died before . . . birth" rendered s. 243 constitutionally infirm on the basis of overbreadth. Although the submission was not pressed in argument before us, I agree with the conclusion reached by the trial judge. The inclusion of the impugned words does not overshoot the purpose of the prohibition by including within it conduct beyond what is necessary to achieve the purpose for which the section was enacted.

Conclusion

[124] In the result, I am satisfied that the trial judge erred in striking out the word "before" in s. 243 on the ground of vagueness when it was used in the clause "the child died before . . . birth". Section 243 is not void for vagueness in this or in any other respect.

[125] For these reasons, I would allow the appeal, declare s. 243 constitutionally valid and order a new trial.

Appeal allowed.

Notes

Note 1: These circumstances are taken from the prosecutor's remarks after the ruling on constitutionality. No evidence was adduced at trial.