First published March 24.
The Supreme Court has let the infanticide convictions stand for a Calgary woman who dropped three babies in a dumpster, rejecting the Alberta Crown's request to have her retried on second-degree murder.
Thursday's decision marks the first time that the highest court has examined Canada's infanticide law, something it had declined to do in past cases.
"There was no error in the trial judge's summary of the law of infanticide," reads the decision.
Meredith Borowiec admitted to throwing her three newborns in a dumpster outside her home in 2008, 2009 and 2010, respectively. Two died while the third was rescued.
She was originally charged with second-degree murder but was eventually convicted on two counts of the lesser charge of infanticide.
Infanticide is defined by the Criminal Code as a "wilful act or omission" that causes the death of a newborn if at the time the mother has a "disturbed mind" because "she is not fully recovered from the effects of giving birth to the child" or "the effect of lactation."
The Alberta Crown had argued the wording of the law is vague, outdated and leaves too much room for new mothers to kill their babies, no matter their moral culpability.
'Parliament intended the concept of a 'disturbed' mind in this offence to have its ordinary meaning.' - Justice Thomas Cromwell
The government said it was trying to "prevent this defence from being applied across the board to all mothers who kill their newborn children while only mildly disturbed."
It proposed the wording be changed to read: "A woman has a disturbed mind if her psychological health is substantially compromised from the effects of giving birth and caring for a newborn."
Justice Thomas Cromwell wrote the decision on behalf of the panel of Supreme Court justices who presided over the January hearing.
"In my opinion, Parliament intended the concept of a 'disturbed' mind in this offence to have its ordinary meaning, so as to provide a broad and flexible legal standard which will serve the ends of justice in the particular circumstances of these difficult cases.
"While we can provide some limited guidance for trial judges and juries, the rest is left, by Parliament's design, to their good judgment."
Kim Pate, executive director of the Canadian Association of Elizabeth Fry Societies, praised the high court's decision to preserve the infanticide law.
"There are many examples of situations where men get the benefit of the doubt in situations involving violence against women, like provocation, that sort of thing," she said.
"This is the only situation where there's a defence that actually benefits women only. And so, given the reality that it's very rarely used, and when it is used it's used in legitimate circumstances, we would certainly see this as a favourable decision."
Should section of law be modernized?
Lisa Silver, a law professor at the University of Calgary, says this section of law — in the past — has been left open to interpretation and could be modernized.
"I think that there's good reason for diminished responsibility in cases of infanticide, but is this the right section?" Silver asks.
"Does this reflect why we say people should not be held responsible in those circumstances? So that's part of the concern, is this actual section, as it reads, is it the right one?"
Borowiec's boyfriend rescued 3rd baby from dumpster
In 2010, Borowiec was arrested after police and paramedics found her sitting on her front steps, watching as first responders investigated a baby found alive in the dumpster outside a housing complex.
Ian Turnbull, Borowiec's longtime boyfriend, was on his way home from work when he heard the baby crying.
He jumped into the dumpster, pulled out the hours-old newborn and later learned the child was his own.
Borowiec was originally charged with attempted murder.
But police continued to investigate and eventually charged her with two counts of second-degree murder after she confessed to giving birth to two other babies and throwing them in the same dumpster.
At the time of her second arrest, Borowiec was pregnant again and gave birth in custody.
Psychiatrists differed over whether mind 'disturbed'
The Calgary judge who presided over the murder trial found Borowiec guilty of the lesser offence of infanticide in 2013.
During the trial, the judge heard conflicting opinions from two psychiatrists.
The Crown used court-appointed Dr. Kenneth Hashman, who gave evidence that Borowiec's behaviour and detailed recollections of the crimes were inconsistent with someone who was suffering from a disturbed mind.
Dr. Jeanette Smith, who testified for the defence, said Borowiec was panicked and anxious, and that those symptoms triggered de-personalization, resulting in the "disturbance."
In the end, Justice Peter McIntyre accepted that Borowiec was not suffering from a "mental disorder" but did find symptoms showing a mental "disturbance."
Borowiec was facing a life sentence with no parole for at least 10 years if convicted of second-degree murder.
Infanticide carries a five-year maximum sentence but Borowiec was ordered to spend 18 months in custody.
She has finished serving her sentence and is currently on probation.
Infanticide law originally meant to protect poor and powerless
Canada's laws were enacted by Parliament with "little legal policy analysis and no debate on the validity of the underlying medical assumptions about the effects of childbirth on women," Alberta argued.