SCC avoided foetal rights debate in R v. Levkovic decision
Friday, May 3, 2013
Susan Precious

Today the Supreme Court of Canada released the much anticipated decision in R.v. Levkovic, 2013 SCC 25

Many thought this decision might reopen a debate on foetal rights and add to the recent and growing body of cases on the meaning of the right to life and death. 

The accused was charged under section 243 of the Criminal Code which makes it a crime to dispose of the dead body of a child with intent to conceal its delivery whether the child died before, during, or after birth.  The issue on appeal was whether s. 243 is impermissibly vague in its application to a child that died before birth.  

The trial judge held the provision to be vague.  The Ontario Court of Appeal disagreed.  The Supreme Court of Canada found the provision was not impermissibly vague in that it prohibited the disposal of the remains of a child born at or near full term with the intent to conceal.  As such, the focus is on the event of the birth and the concealment of it.  The SCC ordered a new trial.  In doing so, the SCC seems to have avoided the foetal rights debate and left a decision that is more memorable for its analysis of impermissible vagueness.

Article originally appeared on Branch MacMaster LLP: Barristers & Solicitors (
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