|s. 233, 237 or 238 of the Crim. Code|
|Election / Plea|
Sup. Court w/ Jury (*)
|Types of Release||Release by Officer, Officer-in-Charge, or Judge (varies on charge)|
|Maximum||5 years incarceration or Life|
- 1 Overview
- 2 Offence Wording
- 3 Proof of the Offence
- 4 Interpretation of the Offence
- 5 Participation of Third Parties
- 6 Sentencing Principles and Ranges
- 7 Ancillary Sentencing Orders
- 8 See Also
Offences relating to infanticide are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".
|Crown Election||Defence Election|
|s. 237 and
When charged under s. 237, the accused cannot be given an attendance notice or a summons without arrest, nor can he be released by an arresting officer. He can be released by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the YCJA and can be given an attendance notice without arrest under s. 496 or a summons and if arrested, can be released by the arresting officer under s. 497 on an attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The young person can also be released by a justice under s. 515.
When charged under s. 238, the accused cannot be released by police under s. 497 or 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an attendance notice or a summons without a s. 496 arrest, and if arrested, can be released by the arresting officer under s. 497 on an attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The young person can also be released by order of a judge or justice under s. 515.
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
- Publication Ban
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
- Offence Designations
|AG Consent Required|
Offences under s. 238 are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
233. A female person commits infanticide when by a wilful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed.
R.S., c. C-34, s. 216.
- Punishment for infanticide
237. Every female person who commits infanticide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
R.S., c. C-34, s. 220.
- Killing unborn child in act of birth
238. (1) Every one who causes the death, in the act of birth, of any child that has not become a human being, in such a manner that, if the child were a human being, he would be guilty of murder, is guilty of an indictable offence and liable to imprisonment for life.
(2) This section does not apply to a person who, by means that, in good faith, he considers necessary to preserve the life of the mother of a child, causes the death of that child.
R.S., c. C-34, s. 221.
Proof of the Offence
Proving Infanticide under s. 233 and 237 should include:
Proving killing unborn child in act of birth under s. 238 should include:
Interpretation of the Offence
Infanticide is both a discrete indictable offence and also a partial defence to murder.
The mens rea requires act act or omission along with an "objective foreseeability of the risk of bodily harm to the child from that assault".
Infanticide is culpable homicide that is "significantly less culpable than murder and even manslaughter".
The usual burden on the Crown to disprove applicable defences is required for the offence of infanticide.
The claim of infanticide as a defence requires the evidentiary foundation establishing on "air of reality" before there is any obligation on the crown to negate the defense of infanticide beyond a reasonable doubt and before it is put to the jury. 
A jury should be instructed to analyze the evidence in the following order:
- Whether the accused caused a child's death;
- Whether, in causing the death, the accused committed culpable homicide under section 225.
- Whether the accused committed infanticide
- whether the accused committed murder
When Child Becomes a Human
- When child becomes human being
223 (1) A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether or not
- (a) it has breathed;
- (b) it has an independent circulation; or
- (c) the navel string is severed.
- Killing child
(2) A person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being.
R.S., c. C-34, s. 206.
A foetus is not a "human being".
The accused's spouse is a compellable witness for the Crown under s. 4(4) of the Evidence Act.
- Conviction for infanticide or manslaughter on charge of murder
(3) Subject to subsection (4), where a count charges murder and the evidence proves manslaughter or infanticide but does not prove murder, the jury may find the accused not guilty of murder but guilty of manslaughter or infanticide, but shall not on that count find the accused guilty of any other offence.
- Conviction for concealing body of child where murder or infanticide charged
(4) Where a count charges the murder of a child or infanticide and the evidence proves the commission of an offence under section 243 but does not prove murder or infanticide, the jury may find the accused not guilty of murder or infanticide, as the case may be, but guilty of an offence under section 243.
R.S., 1985, c. C-46, s. 662; R.S., 1985, c. 27 (1st Supp.), s. 134; 2000, c. 2, s. 3; 2008, c. 6, s. 38; 2018, c. 21, s. 20.
Act or Omission
- No acquittal unless act or omission not wilful
663. Where a female person is charged with infanticide and the evidence establishes that she caused the death of her child but does not establish that, at the time of the act or omission by which she caused the death of the child,
- (a) she was not fully recovered from the effects of giving birth to the child or from the effect of lactation consequent on the birth of the child, and
- (b) the balance of her mind was, at that time, disturbed by reason of the effect of giving birth to the child or of the effect of lactation consequent on the birth of the child,
she may be convicted unless the evidence establishes that the act or omission was not willful.
R.S., c. C-34, s. 590.
Participation of Third Parties
- Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
- On Finding of Guilt
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
- Maximum Penalties
|s. 237||N/A||5 years custody|
|s. 238||N/A||life in custody|
Offences under s. 237 and 238 are straight indictable. The maximum penalty is 5 years incarceration under s. 237 and life under s. 238.
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
s. 718.3, 787
For offences under s. 237, all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).
Offences under s. 238 are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.
If convicted under s. 238 a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
- see also: Infanticide (Sentencing Cases)
Ancillary Sentencing Orders
- Offence-specific Orders
|DNA Orders||s. 233 or 238||
- General Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.|
|Restitution Orders (s. 738)||any||A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.|
- General Forfeiture Orders
|Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))||any||Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.|
|Fine in Lieu of Forfeiture (s. 462.37(3))||any||Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.|
|Forfeiture of Weapons or Firearms (s. 491)||any||Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.|
|Forfeiture of Offence-related Property (s. 490.1)||any||Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.|