The case concerns Ivana Levkovic, who gave birth at her Mississauga, Ont., apartment in 2006 to a baby she says was stillborn.
The woman was charged with concealing the body of a child after her landlord found the baby's decomposed remains in a garbage bag on the balcony of her apartment.
Levkovic told police she had fallen, gone into labour, and given birth to what she believed was a stillborn child. She then put the body in a garbage bag and left it on her balcony.
The Criminal Code dictates an individual cannot conceal the birth of a "child," whether it died "before, during or after birth," so that a medical examination can be performed to determine the cause of death if need be.
Levkovic's lawyers had argued the law wasn't clear enough and could leave women unclear about when they would be covered by it, breaching their rights under the Charter of Rights and Freedoms.
Unanimous decision by Supreme Court
A lower court agreed with that argument. It said the word "before" in the law was vague, and Levkovic was acquitted. But the decision was reversed in the Ontario Court of Appeal, and a new trial was ordered.
The acquittal was ordered over the charter issue before the trial started.
Canada's top court agreed with the appeal court in a 7-0 decision on Friday.
The decision, written by Justice Morris Fish, said Levkovic's lawyers and the appeal court judge ignored a past ruling which stated a fetus becomes a child when it reaches the stage in development where it's likely to be born alive, barring some external event or circumstance.
Because the child was near the 40-week mark, the court said it should be considered a stillbirth and should have been reported to authorities so that it could undergo a medical examination. As a result, the court ordered a trial for Levkovic.
The Supreme Court decision avoided the debate over when life begins, noting the section of the Criminal Code in question applies only to stillbirths and not to abortions or miscarriages.
Conservative MP Stephen Woodworth, who brought a motion to the House last year calling for a committee to examine when life begins, said he's happy with how the court looked at the question, but unhappy it "avoided any reference to human equality and human dignity."
"Well, I'm pleased with the methodology, that the court would not say that someone should not be viewed in law as a child without looking at the actual nature of the individual. I would like Parliament to apply the same methodology to the question of a human being," he said.
"The Supreme Court did not use the language of human equality or human dignity and to my way of thinking, concealing the body of a dead child is an affront to the equality and dignity of that child, and the law certainly has a role to play in upholding an individual's dignity and equality."
Woodworth said it's possible the court wants to leave those issues up to parliamentarians to decide.
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