INTRODUCTION AND BRIEF DESCRIPTION

Section 233 of the Criminal Code of Canada allows for a charge of infanticide for a woman who causes the death of her newborn while experiencing mental disturbance due to the effects of giving birth and/or lactation.

SECTION WORDING

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.

EXPLANATION

Section 233 of the Criminal Code of Canada creates an exception to the offence of murder for female persons who commit infanticide. Infanticide is committed when a female person, by a willful act or omission, causes the death of her newly-born child, provided that, at the time of the act or omission, she is not fully recovered from the effects of giving birth to the child, and her mind is then disturbed, either by the effect of lactation consequential on the birth of the child or by reason thereof. This provision recognizes that the act of giving birth and the hormonal changes that accompany it can significantly affect a woman's mental state. In some cases, this may lead to the mother harming her child, either intentionally or unintentionally. The provision recognizes that such cases do not warrant the same level of moral culpability as cases of murder where the offender's mental state is not so impaired. Infanticide is a serious offence, and a person convicted of infanticide may face life imprisonment. The provision also states that the court may order the offender to undergo treatment, counseling, or therapy as part of their sentence. The provision is designed to balance the need to protect the safety and wellbeing of infants with a recognition of the complex issues surrounding maternal mental health.

COMMENTARY

Section 233 of the Criminal Code of Canada concerns infanticide, a form of homicide that is unique to women. The section defines infanticide as the wilful act of causing the death of a newly-born child by a female who, at the time of the act, is not fully recovered from giving birth and is suffering from mental distress. The purpose of this section is to recognize that a woman who has just given birth may experience a range of physical and emotional challenges that could lead to her harming her child. This provision acknowledges that these circumstances are inherently different from other forms of homicide and thus should be treated differently. In practice, this section can be difficult to apply. Courts must determine whether a woman who has killed her child was suffering from mental distress due to the effects of giving birth and lactation. Such a determination requires considering a wide range of contextual factors and often requires the testimony of medical experts. However, the fact that this provision is unique to women has been criticized by some as being discriminatory. Critics argue that it wrongly suggests that women are more prone to committing infanticide and that it downplays the role that societal and systemic factors play in creating situations where women may feel that they have no choice but to kill their child. Nevertheless, the provision is still necessary as it recognizes the unique challenges that women face during and after pregnancy and seeks to ensure that women who experience mental distress during this time are not unfairly punished. Overall, section 233 of the Criminal Code of Canada is an important provision that recognizes the unique circumstances surrounding infanticide. It is an acknowledgement that women who experience mental distress during and after pregnancy may be more vulnerable to harming their child and seeks to ensure that these women are not unfairly punished. While some criticisms have been levied against the provision, it is still a necessary part of Canadian law and must be applied with sensitivity to the underlying issues at play.

STRATEGY

Section 233 of the Criminal Code of Canada deals with the criminal offence of infanticide. This section presents several strategic considerations when dealing with cases of infanticide. One of the most critical considerations is ensuring that the mental state of the accused is adequately assessed and given due consideration. Another crucial strategic consideration is to ensure that the legal team is well-versed in the legal interpretations, precedents, and applications of this section of the Criminal Code. One of the key strategies that can be employed when dealing with infanticide charges is to conduct a thorough assessment of the accused's mental state. This assessment should take into account any medical or psychological conditions that may have impacted the accused's ability to think clearly and rationally at the time of the offence. This may involve consulting with medical and psychiatric professionals, as well as reviewing any relevant medical records or history. Another strategy when dealing with infanticide charges is to carefully scrutinize the circumstances surrounding the offence. This includes determining the precise sequence of events that led to the death of the newborn child and assessing whether the accused's actions or omissions were, in fact, wilful. Additionally, it is essential to consider whether the accused was fully recovered from the effects of giving birth at the time of the offence and whether her mind was disturbed by the effect of lactation or other physical or psychological factors. An additional strategy when dealing with infanticide charges is to be well-versed in the legal interpretations, precedents, and applications of section 233 of the Criminal Code. This includes understanding the various factors that the courts typically consider in assessing whether an accused's mental state met the legal criteria for infanticide and how courts have applied the law to similar cases in the past. It also includes understanding how the defence of infanticide differs from other defences such as self-defence or provocation. Finally, it is crucial to consider the potential consequences of a conviction for infanticide. Depending on the circumstances of the case and the specific charges laid, a conviction for infanticide can carry substantial penalties, including significant prison sentences. Thus, it is essential to carefully assess the strength of the case against the accused and consider the various legal and strategic options available when building a defence. In conclusion, dealing with cases of infanticide requires careful consideration of several strategic factors, including assessing the accused's mental state, scrutinizing the circumstances of the offence, being well-versed in the legal interpretations of the relevant section of the Criminal Code, and carefully assessing the potential consequences of a conviction. By employing these strategies, a legal team can build a robust defence and achieve the best possible outcome for their client.