Infanticide Provisions in a Contemporary Context: Should They Stay, or Should They Go?

Abstract

The enactment of Sections 233 and 237 of the Criminal Code by Parliament aimed to address the historical prevalence of jury nullification in infanticide cases by offering leniency to offenders, particularly women, in dire circumstances due to societal norms, economic constraints, and a lack of support systems. These legislative measures aimed to find a balance between holding individuals accountable for their actions and recognizing the underlying complexities that led to such tragic outcomes. Nevertheless, a critical examination of the evolving societal attitudes towards women, children's rights, and family structures prompts a re-evaluation of the current legal framework surrounding infanticide. This reassessment delves into the intricate interplay of socio-economic factors that historically influenced juries and justified the leniency provided by Sections 233 and 237.

This paper argues that the existing infanticide provisions in Canada, particularly Sections 233 and 237, no longer align with modern understandings of moral blameworthiness in cases of infanticide. These sections should be replaced by a statutory defence of diminished responsibility. This proposed shift towards a more flexible and morally informed approach to addressing infanticide within the legal system emphasizes the importance of adapting legal mechanisms to meet evolving standards of justice and ethics in society. This call for reform is rooted in a deep understanding of the historical context that shaped existing laws and a forward-looking vision that prioritizes fairness, accountability, and the protection of vulnerable individuals within the criminal justice system.