In a unanimous 7-0 decision Friday, the Supreme Court upheld an appeal court decision to order a new trial for Ivana Levkovic.
Levkovic said she was alone in her Mississauga, Ont., apartment in the spring of 2006 when she fell and delivered a baby girl, which was later determined to have been at or near full term.
She placed the child's body in a plastic bag and put it out on her balcony, where a building superintendent later discovered it.
Levkovic was charged under a section of the Criminal Code that makes it a crime to dispose of the body of a dead child to conceal the fact it had been born.
The law applies to babies that die "before, during or after birth."
But her lawyers argued the law was too vague and did not make a clear enough distinction between a miscarriage or a stillbirth, nor did it specify when a fetus becomes a human being.
The trial judge agreed the law was too vague and Levkovic was acquitted. The Ontario Court of Appeal set aside that ruling and ordered a new trial, a decision upheld by the Supreme Court.
Writing for the court, Justice Morris Fish said the law is not overly vague and "makes clear that it is focused on the event of birth."
"In its application to a child that died before birth, it only captures the disposal of the remains of children that were likely to be born alive," Fish wrote in the decision.
"A conviction will only lie where the Crown proves that the child, to the knowledge of the accused, was likely to have been born alive."
The Supreme Court steered well clear of the abortion debate, saying the concealment law applies only to stillbirths and not to miscarriages or abortions.Suggest a correction