March 10, 1954 (22nd Parliament, 1st Session)

PC

George Clyde Nowlan

Progressive Conservative

Mr. Nowlan:

Without digressing to the interesting subject which has been raised by my hon. friend to the right, I do not think it is a matter that occurs so frequently that the code has to deal with it at the moment. I think the minister will admit that the saving clause at the bottom of clause 570 is really superfluous, and does not affect the situation in any way. It says:
. . . she may be convicted unless the evidence establishes that the act or omission was not wilful.
That is elementary, because if it was not wilful it would not be a crime. I do not think that is really of much help to us in analysing what the hon. member for Winnipeg North Centre has elaborated upon. He has presented it much more cogently than I could, so I am not going to repeat what he has said. According to the explanatory note, this is a new section and certainly it is going to shift the burden of this thing so far as the defence is concerned. It is not relieved at all by the last part of the clause, because if it is not wilful it is not a crime; it is not homicide. If a mother rolls over on her baby at night and the baby smothers, that would not be a wilful act and she could not be prosecuted for infanticide.

Criminal Code
Frankly I am not too much concerned about it, as I told my hon. friend a little while ago in an aside, because those of us who have had any experience in these matters know how difficult it is to get a jury to convict in a case 'of infanticide. So often there is sympathy for the mother, and often the mother is unmarried in such cases. Ordinarily the jury will lean over backward to avoid a conviction for this offence, and very often properly so. With this other factor in there, when you charge a jury very learnedly on the law they are going to throw up their hands and say, "I did not know what he was talking about, I do not believe the judge understood it, so I will go out and acquit her".

Topic:   '2862 HOUSE OF COMMONS
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