21 September 2013

R v Levkovic: Fish J's Satisfactory Reasons

This is a case analysis for R v Levkovic, posted with two aims. First, the case is an example of good legal argument and writing. I aim to draw attention to its best points. Second, the case is complicated. I aim to explain the case simply. Both these aims are attempted simultaneously through the analysis.

Be warned, this case's facts are contentious and upsetting.

Supreme Court of Canada

[2013] SCC 25

10 October 2012, 3 May 2013

R (Her Majesty The Queen) = Respondent
Levkovic = Appellant

AG of Canada, and Criminal Lawyers' Association of Ontario = Interveners

Fish J delivered the court's reasons.
(McLachlin CJ; LeBel, Abella, Rothstein, Cromwell, and Moldaver JJ)

1. Facts and History

A human baby was found dead in a bag on a balcony. The court was careful to use specific words, however: Fish J wrote, 'the remains of a human baby' (at [20]). There are good reasons 'corpse' or other evocative words were not used. The court's language is sensitive both to the situation and the audience.

More importantly, perhaps, is the argumentation reason. The legal question in Levkovic concerned issues of beginning-life, fetuses, and childbirth. The legal issue involved whether the 'remains' were a child's or fetus'. Depending on the result, the 'remains' may not accurately be called anything else.

As much as this seems to demote the case's seriousness, the court cannot use biased language before the full legal exploration. To write 'corpse' rather than 'remains' might indicate that Fish J had already decided the case's outcome before a proper consideration. This would have been unacceptable, and would have undermined the court's references to upholding the rule of law (see below).

The baby was born close to its due date. The evidence, though--the mother's statement and the later medical reports--indicates the baby was not alive at birth. I write 'not alive' because there is a question about when a human becomes a baby for legal purposes.

The contentious legal provision in this case is s 243 (Canadian Criminal Code 1985). Breaching s 243 is an indictable offence with 2 years maximum imprisonment. The section prohibits concealing
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 (…).
The trial judge held s 243 is impermissibly vague. The Ontario Court of Appeal disagreed. The Canadian Supreme Court confirmed the appeal court's decision: s 243 is permissibly vague. A retrial was ordered.

2. The Law

To explain why clarity is an issue, Fish J opens the case with a comment about the rule of law.
Impermissibly vague laws mock the rule of law and scorn an ancient and well-established principle of fundamental justice: No one may be convicted or punished for an act or omission that is not clearly prohibited by a valid law. (at [1])
This idea is codified in the Canadian Charter of Rights and Freedoms. If s 243 cannot be read as a clear prohibition, the appellant could not have known its proscribed acts and omissions would breach the law.

The appellant claimed s 243 is unclear because, as already suggested, for a child to die before birth it must be a child (sic). That is, a fetus is not listed in the act; for a child's death (ever) to occur, it must have reached a stage in its in-utero development at which it is no longer a fetus but a child. The appellant could not know whether this change from fetus to child had occurred and so could not know whether she breached s 243.

The legislation recognisably omits to define when a fetus becomes a child. Fish J even considers some arguments that attempt to fill in what the legislature left out.

These include definitive tests such the likelihood of surviving outside the womb. If Fish J read one of these definitions into the test, the reading would imply s 243 is too vague. The appellant tried to tempt Fish J: as good definitions are available, perhaps one should be read in.

However persuasive and tempting these claims were, Fish J cut them apart. Even if such a test were imposed into s 243--thus encouraging the belief that s 243 is currently too vague--those tests would require expert medical evidence.

To reiterate, even if the likelihood-test would have determined whether the remains were a fetus' or baby's, the appellant would have needed expert medical evidence. If that evidence is required, regardless of how s 243 is written and read, the appellant cannot argue she was right not to seek that evidence. Either reading of s 243 properly entails open records. Either reading, therefore, is against concealment from the relevant authorities.

3. Misplaced Concerns

Much abuse could be hurled at Fish J's decision. Much of this would relate to the refusal to define when a fetus becomes a baby.

This arises because interest groups demand to have such issues dealt with and defined. Anti-abortionists for example want the law to define a child very early in a pregnancy. Such a definition would render many abortions 'murder' and therefore increase the chances of having abortion declared illegal.

This is an unfair criticism, though. Fish J's judgment is good. It is exactly what procedure and law's conventions require of judges. The judiciary's place in a democracy excludes their determining such important issues. The duty is the legislature's. Fish J is quite brilliant for deciding the case without imposing perhaps-constitutional changes.

This brilliance is based on two observations.
  1. To have defined when a fetus becomes a child, Fish J would have encroached on legislative powers and undermined the case's rule-of-law foundations.
  2. Deciding the case without expanding the law allowed the situation to near a conclusion. To extend the case's life any more, would do no good for the justice system or the appellant--who after all is a woman with human rights, and her future life to live, which cannot happen under threatening indefinite litigation.

4. Further Remarks

Legislatures must be brave when they create laws to define life. The judiciary must show courage when they apply those laws. But if legislatures refuse to perform their duty, the judiciary must show equal courage in their application of the laws that do exist--and that application should necessarily be restricted.

Fish J no doubt has a personal opinion about when life begins. It does not matter whether this is consilient with medical or other strictly legal opinion. What matters is this judgment illustrates a definite candour and integrity to the judicial role.

Created: 21 September 2013. Version 1.0.

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