Levkovic was charged under Section 243 of the Criminal Code, which outlaws the concealment of the body of a dead child regardless if the “child died before, during or after birth.” Her lawyer, Michael Moon, challenged the law and argued that it criminalized stillborn births, miscarriages, abortions, and a woman’s choice to conceal pregnancy.
When Crown prosecutor Scott Latimer told Justice Casey Hill there was not enough evidence to support an indictment, Justice Hill granted an acquittal and simultaneously struck down a portion of Section 243, eliminating the word “before.”
“The way he dealt with [this] raises the issue—is it a criminal offence within section 243 to terminate the life of a child before that child is born?” said Eugene Meehan in an interview with the National Post. Meehan is an Ottawa lawyer with Supreme Advocacy LLP and an expert on the work of the Supreme Court of Canada.
Disagreeing with the ruling, a court of appeals ordered a new trial. Levkovic then appealed to the Supreme Court.
“The [Levkovic] case raises the issue, constitutionally as well as criminally, which is ‘is a child a person before birth?’ And if the life of the child is terminated before birth, is that a criminal offence?” said Meehan. “There inevitably is a legal connection to abortion generally, but that’s not to suggest the Supreme Court of Canada may take that connection.”
Previously, Levkovic has been brought to court on a similar charge. She gave birth to a live baby boy sometime between 2002 and 2003; the infant died, was stored in a freezer for several years and then dumped in the Humber River in 2005.
The case was opened when Levkovic’s partner confessed in return for immunity, but he died while awaiting trial for an unrelated matter. Levkovic is charged with concealing a body and neglecting to obtain assistance in childbirth; she denies all charges.
In her Supreme Court hearing, “the court could opt to offer a narrow ruling, dealing only with this specific case or with the specifics of Section 243 itself,” Meehan said. “But the justices could also deliver a broader decision, addressing whether a fetus in the uterus is a child or not.”
The Levkovic case is potentially explosive: Canada has no current abortion law, the last one being struck from the books in 1988.
“The issue of the dignity of human life seems to be rearing its head everywhere,” said Gwen Landolt, President of REAL Women of Canada. “It’s significant. They have tried to submerge the issue of the dignity of human life and when it begins, but it keeps popping up—because it is reality. The reality is that this woman gave birth to something, and it was a child. Criminal Code 243 says that the time does not matter: it is a child. How is the court going to deal with this?”
The Supreme Court might skirt the issue of personhood, Landolt said. “They will do their best to work around it. But the court of appeals in Ontario dealt with the issue [of personhood] and it is a very liberal court. But again, they had to grapple with reality. It is not because they are pro-life; they are just dealing with reality.”