The Supreme Court of Canada today upheld the acquittal of a Saskatchewan woman who was charged with abandoning a child after giving birth in a Wal-Mart bathroom.
The woman, known by her initials in court documents as A.D.H., testified she did not know she was pregnant, gave birth quickly in the toilet of the washroom, and thought the child, blue and motionless, was dead. She left the store and did not tell the people she was with that she had just given birth.
Other customers saw the infant and also thought it was dead. A manager of the store in Prince Albert that was looking at the baby saw its leg twitch and pulled it out of the toilet. The baby was successfully resuscited at the hospital.
The boy now lives with A.D.H.'s mother and A.D.H. visits him regularly.
Police later identified A.D.H., she co-operated with the investigation, and was charged with abandoning a child under the age of 10 and thereby endangering his life.
That she left the baby in the toilet was not disputed, but what was at issue was whether the woman intended to abandon the baby and therefore knowingly put him at risk of harm.
Generally, both a prohibited act and an element of fault in committing the act must be proven in order for a person to be found guilty of a criminal offence.
Woman thought baby was dead
The woman's defence was that she thought the baby was dead, and therefore did not put him at risk of harm when she left him in the toilet.
The Supreme Court had to decide Friday whether the fault element of the act should be assessed by what A.D.H. actually knew, the subjective standard test, or by what a reasonable person would have known, the objective standard. The Crown wanted the reasonable person standard to be applied.
The lower courts applied the subjective fault test, focusing on what A.D.H. knew, and the majority of the Supreme Court agreed that was the proper thing to do in this case.
The top court said that Parliament intended for this kind of standard to be applied when it created the child abandonment offence under the Criminal Code.
"In my view, the text, context and purpose of s.218 of the Code show that subjective fault is required. It follows that the trial judge did not err in acquitting the respondent on the basis that this subjective fault requirement had not been proved," Justice Thomas Cromwell wrote for the majority.
Cromwell describes the case as a "heart-rending story which, fortunately, has a happy ending."
It was a 5-2 decision. The two dissenting justices, Michael Moldaver and Marshall Rothstein agreed with the acquittal, but favoured a different legal standard than the one that was applied at trial and that the majority of justices accepted.
Friday's decision puts an end to a long legal battle. The birth took place in 2007 and the first acquittal came in 2009. It was appealed and the woman was still found not guilty in 2011. The Supreme Court heard the second appeal in October 2012.
Prior to the boy's birth, A.D.H. had been gaining weight and took three home pregnancy tests, all of which were negative. She continued to get her period throughout the pregnancy. She testified that when she arrived at the Wal-Mart she was not feeling well and gave birth within minutes of going into the washroom. She said she did not respond to offers of help from other women in the washroom who noticed blood on the floor or tell anyone what happened because she was afraid.