ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
S. Latimer, for the Crown
- and -
IVANA LEVKOVIC
M. A. Moon,
Kathy Perchenok, for the Defendant
Defendant
HEARD: September 15, 16, 18, 19,
22, 23, 2014
REASONS FOR JUDGMENT
Skarica J. Given Orally
Overview
1The accused is charged with disposing the dead body of a child with intent to conceal the fact that she had delivered it by concealing it in the property of 285 North Service Road, Mississauga.
2The superintendent at a Mississauga apartment building was cleaning an apartment building after the tenants had vacated and found a dead “baby” wrapped in a towel inside the bag. Expert evidence was provided regarding the severely decomposed baby remains regarding the gestational age and the likelihood of this baby being born alive.
The Evidence At Trial
3On April 5, 2006, James Skalin, a superintendent at an apartment building at 285 North Service Road, Mississauga, was cleaning an apartment after the tenants Nicole Reilly, her brother and a boyfriend had left. He discovered a bag left in the balcony of an apartment after the tenants vacated. He found a dead “baby” wrapped in a towel inside the bag. He called the police almost immediately.
4On April 9, 2006, P.C. Croft was on duty at a Peel police station. At about 10:45 p.m. two white females entered the station. They approached the front desk. Both were visibly upset. One of the women, the accused’s friend, told P.C. Croft that the police were looking for her friend. P.C. Croft asked, “Why?” There was no answer. The two women provided their health cards which identified the accused as LEKOVIC, IVANA – DOB – 1982-04-30 and the friend as KAMZELSKA, WIOLETA – DOB – 1980-07-01. The officer had never seen them before. He checked them on CPIC and there were no hits. P.C. Croft asked, “Why are you here?”
5The accused stated:
I lived in an apartment for a while but I was doing a lot of drugs – I didn’t know I was pregnant – I was in the apartment alone when I fell – I had the baby then there in the apartment. I was scared – so I put the baby in a bag and put it in the balcony.
6Susan Barrett, a co-worker with the accused at the Million Dollar Bar, testified that the accused had a baby bump in August of 2005. On or about September of 2005, the accused told Ms. Barrett that she, the accused, went to a Toronto abortion clinic. They found out that she was greater than 20 weeks pregnant and told her she was too far along. The accused asked Ms. Barrett how would she be able to dispose of a child. “Could she take a pill?” At one point, one or two months later, the accused and her friend decided to go to Montreal to get the abortion. The trip was supposed to occur after the five month mark of pregnancy. The accused later told Ms. Barrett that “I didn’t go through with it.”
7The next time Ms. Barrett saw the accused, she looked fantastic. The accused had a tan and a tattoo on her neck. The accused said she had a baby girl in the hospital and gave it up for adoption.
8The key piece of evidence in this prosecution is the expert evidence of Dr. David Chaisson, a forensic pathologist. He examined the “baby” remains and found them in an advanced state of decomposition. His opinion was that this was a female “baby” that was at an approximate stage of gestation of 36 weeks. The baby was at near term to term level. His opinion in examination in chief was that this was a child likely to be born alive due to:
(1) gestational age;
(2) he could rule out any major malformations of organs;
(3) there were no major abnormalities that would render the child stillborn; and
(4) the growth parameters were at a 36 month gestational level where the vast majority of babies are born alive.
9However, in large part due to the decomposition of the remains, he could not determine whether the baby was born alive. Due to the decomposition, he couldn’t determine if the fetus was subjected to drugs and died. He could not determine whether the baby died before labour or during labour. In cross-examination, Dr. Chaisson conceded the following points:
(1) He couldn’t exclude the possibility that the fetus was dead in the uterus in the woman’s body;
(2) The placenta, which gives important clues regarding stillbirth, was very decomposed and not reviewable;
(3) The consumption of drugs/alcohol/cocaine could cause the death of a fetus;
(4) Although he saw no evidence of trauma in the infant, in his examination of the fetus, he could not say it was not the product of a self-induced abortion;
(5) Dr. Chaisson could not exclude the possibility of a self-induced delivery;
(6) Photos 35 & 36 in Exhibit 2 show, regarding the abdominal area, a discoloured and protruding dark area with bowel tissue coming through;
(7) The abdominal injury to the fetus could be caused by:
i) an object going through the wall of a fetus and abdominal wall of the mother;
ii) an object in the cervix perforating the amniotic sac and causing injury to the fetus; and
iii) he could not exclude the possibility of injury to the fetus.
10Dr. Chaisson testified that there was nothing to exclude the Crown and defence agreement that “There was nothing in the remains to suggest otherwise the internal uterine destruction of the fetus which was expelled from the mother.”
11I conclude from all of the evidence that it is clear that the accused was making significant efforts to seek out an abortion from approximately the 20 week term to well beyond, up to the 28 – 30 week term.
12I infer accordingly that she had the desire and motive to embark on a self-induced abortion on this term or near term fetus. Her statement that she did not know she was pregnant is a lie. Dr. Chaisson basically discounted the possibility of blunt force trauma, i.e. a fall, inducing the expelling of the baby from the mother’s body. The accused’s statement does not indicate whether the baby was born dead or alive.
13A fair evaluation of the evidence leads me to the conclusion that there is a reasonable possibility that Ms. Levkovic engaged in a self-induced abortion of this 36 month old fetus and the fetus was expelled dead due to the abdominal injury inflicted upon it.
14This matter has previously been dealt with by the S.C.C. In R. v. Levkovic, 2013 SCC 25, [2013] 2 S.C.R. 204.
15The court makes the following relevant remarks:
Section 243 makes it a crime in Canada to dispose of the dead body of a child with intent to conceal its delivery - whether the child died before, during, or after birth. The decisive issue on this appeal is whether s. 243 is impermissibly vague in its application to a child that died before birth.
Any ambiguity as to this element of the offence is resolved in favour of the accused, as it must be, by restricting the pre-birth application of s. 243 to the delivery of a child that would likely have been born alive. Ty this I mean, here and throughout, a child that has reached a stage of development where, but for some external event or circumstances, it would have likely been born alive.
I recognize, of course, that provincial and territorial legislation requires reporting of all stillbirths, generally defined as “the complete expulsion or extraction from its mother of a product of conception either after the twentieth week of pregnancy or after the product of conception has attained the weight of 500 grams or more [without signs of life]”, or words to this effect: see, for example, Vital Statistics Act, R.S.O. 1990, c. V.4, s. 1.
The unchallenged constitutionality of these provisions may well negate the privacy and autonomy interests claimed by the appellant in this case. And they doubtless provide clear and specific standards for provincial reporting purposes. In my view, however, they cannot be invoked ― by “harmonization”, analogy, or otherwise ― to expand by judicial fiat the meaning of “child [that] died before . . . birth” in s. 243 of the Criminal Code. Section 243, an enactment that falls squarely within federal jurisdiction, has a distinct legislative history and creates a crime for different legislative purposes.
Finally, a brief word regarding the fault element of s. 243 in its application to a child that died before birth. The Crown concedes, properly in my view, that the burden of proof would be on the prosecution to establish the accused’s awareness that the child died at a time when it was likely to be born alive. Any doubt in this regard would require an acquittal. In addition, as in cases where the child dies at or after birth, the prosecution must prove that the accused disposed of its body “with intent to conceal the fact that [the child’s] mother has been delivered of it”.
However, where Erle J. found it sufficient in Berriman that the fetus “might have been born alive”, I would adopt a likelihood requirement instead. I agree with the Court of Appeal that, for the purposes of s. 243, 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” (para. 115 (emphasis added)).
This “likelihood” standard best comports with the late term focus of s. 243 and thus affords greater certainty in its application.
To support a conviction under s. 243, it must be shown that the “remains” disposed of were the remains of a child. In cases involving death before birth, the burden is therefore on the Crown to prove that the fetus would likely have been born alive.
To facilitate the investigation of these offences, the pre-birth application of s. 243 is appropriately limited to fetuses that were likely to have been born alive ― that is children, not fetuses that were miscarried.
The foregoing contextual and purposive analysis persuades me that s. 243 meets the minimum standard of precision required by the Charter. In its application to a child that died before birth, s. 243 only captures the delivery of a child that was likely to be born alive.
And I recall in this context that a conviction would only lie where the Crown proves that the child, to the knowledge of the accused, would likely have been born alive.
Section 243 states:
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.
A plain reading of its text makes clear that s. 243 is focused on the event of birth. The phrase “before, during or after birth” leaves no room for doubt in this regard. Indeed the parties agree that in its application to a child that died before birth, s. 243 applies only to stillbirths ― not to miscarriages or abortions: see A.F., at paras. 3-4.
16The evidence here leaves open the reasonable possibility that the accused killed her 36 week old fetus within her before birth and the fetus was subsequently expelled by a self-induced abortion.
17The above quoted sections from the Supreme Court of Canada decision make it clear that there can be no conviction pursuant to s. 243 in these circumstances.
18The 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.
19Frankly, I find that result to be deeply disturbing and, in fact, disgusting at any moral level.
20However, I am bound by the law as the Supreme Court of Canada interprets it. I might add, were it not for this reasonable possibility of a self-induced abortion, I would have no hesitation, despite the able arguments of defence counsel, to otherwise convict the accused of this offence.
21You, Ivana Levkovic, have brought shame and community repulsion upon yourself, as indicated by Ms. Barrett’s testimony regarding her disgust of your actions.
22However, on the evidence and the law before me, the Crown has not proven its case beyond a reasonable doubt. Accordingly, I must find you not guilty of the s. 243 charge.
23The verdict is Not Guilty. You are acquitted. You are free to go.
___________________________
Skarica J.
Released: September 24, 2014
COURT FILE NO.: CR 06 1253
DATE: 20140924
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
IVANA LEVKOVIC
Defendant
REASONS FOR JUDGMENT
Skarica J.
Released: September 24, 2014