Delivering a Baby in Custody: Constitutional Dimensions

Monday, October 15, 2012

Delivering a Baby in Custody: Constitutional Dimensions
Vanessa MacDonnell*
On Wednesday, CBC news reported that a woman who was being held pending trial at the Ottawa-Carleton Detention Centre (OCDC) delivered a baby in her cell.[1]Earlier that day, OCDC medical staff had determined (wrongly) that the woman was not in labour. Rather than taking her to the hospital,correctional staff told her to “shut up”[2] and “transferred her from a shared cell to a segregation cell.”[3] The child was born breech.
            It is no secret that women experience the criminal justice system differently than men. This is especially so when a woman is pregnant, and statistics show thatat any one time, as many as one in ten women in the provincial correctional system are pregnant.[4]The Minister of Community Safety and Correctional Services has gone on record this week stating that “[p]regnant inmates should expect to receive the same level of care that expecting mothers in the community receive.”[5]The Minister also conceded, however, that correctional facilities are not equipped to deliver babies.[6]This means that an appropriate level of care can only be provided in a hospital, and that pregnant women are dependent upon correctional staff to effect a transfer.
The information currently available suggests that OCDC staff repeatedly disrespected the pregnant woman in their care and ignored her requests for proper medical attention, placing both her life and the life of her unborn child at risk.[7] This is not the first time a pregnant woman has been denied proper medical care while in custody.[8]Nor are complaints about the denial of medical care in general a rare occurrence. In recent years there have been several cases in which offenders have received extra credit for time spent in pre-trial custody during which medical care was improperly withheld.[9]
            It is worth recalling that the woman involved in this incident has yet to go to trial on the charges she faces and thus benefits from the presumption of innocence.In any event, access to adequate health care should (and as a matter of law, must[10]) be provided to both persons who are awaiting trial and to those who have been convicted. Moreover, although individuals may lose their liberty when they detained or incarcerated, they do not lose access to their Charter rights.[11]The incident that occurred at the OCDC this week raises serious s 7 issues.
            Earlier this week the Supreme Court of Canada heard a constitutional challenge to s 243 of the Criminal Code, which makes it an offence to“conceal the dead body of a child.”[12]The appeal concerns actions taken by the accused, Levkovic, shortly after she gave birth.In defending the charges, the accused argued that s 243 violates s 7 the Charter that it is unconstitutionally vague. As might be expected, some of the Charter arguments made in Levkovic apply equally to the OCDC incident.[13]In arguing that the s 7 liberty and security of the person interests were engaged by s 243, the appellant submitted that
A woman’s decisions concerning her own pregnancy - including choices whether to becomepregnant and concerning medical treatment or conduct while pregnant - unquestionably fall within “the core of what it means to be an autonomous human being blessed with dignity and independence in ‘matters that can properly be characterized as fundamentally or inherently personal.’”[14]
In making this submission, Levkovic was relying upon the Court’s prior jurisprudence in which it had concluded that the liberty and security of the person interests “protect[] a core of intimate or private decisions that are fundamental to personal autonomy.”[15]
In my view, the OCDC incident engaged the woman’s life, liberty and security of the person interests. The woman was detained pending trial, and was thus deprived of the freedom to make and implement choices about the delivery of her child.This engaged her s 7 liberty interest. Her physical security of the person was engaged because she had no control over the physical circumstances of the birth – she was at the mercy of the state to ensure the safe delivery of her child. Her psychological security was also engaged, for many of the same reasons discussed in Levkovic. On the authority of cases like Morgentaler, Rodriguez, Chaoulli and Insite, moreover, security of the person is engaged when the state “prevent[s] access to health care.”[16] The argument is even stronger in the correctional context, where health care cannot be accessed without state support.And finally, the woman’s life interest was engaged by the actions of correctional staff in refusing to provide appropriate medical care, with the result that the accused was forced to give birth in a jail cell.
Was this deprivation of s 7 interests in accordance with the principles of fundamental justice? The short answer seems to be no, given that the “individual’s rights [were]deprived for no valid purpose.”[17] This suggests that the state’s actions were both arbitrary and grossly disproportionate.[18] As counsel for both Levkovic and the intervener Criminal Lawyers Association pointed out in oral and written argument, a contextual approach to the s 7 inquiry requires the Court to be alive to the “gendered nature” ofthe “interest[s]” at stake[19] as well as to other potentially relevant Charter rights, including ss 15 and 28.
On the human, statutory, and constitutional levels, therefore, what happened at the OCDC this week is cause for great concern. The Ministry says that it has commenced an investigation into the treatment of this woman.[20]Let us hope that the publicity this incident has garnered prompts broader changes in the way that pregnant women are treated in custody.

* Assistant Professor, University of Ottawa Faculty of Law (Common Law Section). Thank you to Jula Hughes and Leo Russomanno for helpful comments.

[1]“Inmate’s Rights Allegedly Violated in Jailhouse Birth” CBC News, October 10, 2012, online: news/canada/ottawa/story/2012/10/10/ottawa-jail-baby-born-cornwall-woman-complaint.html (last accessed 13 October 2012) [“Inmate’s Rights”].

[2] Joanna Smith, “Ottawa Prison Investigating Allegations that Guards Ignored Woman who Gave Birth in Jail Cell,” Toronto Star, October 12, 2012, online: (last accessed 13 October 2012) [Smith, “Ignored Woman”]. Thanks to @lawandlit for posting this article on Twitter.

[3]“Inmate’s Rights,” supra.

[4] Council of Elizabeth Fry Societies of Ontario, “Facts and Figures: Profile of Provincially Sentenced Women In Ontario,” online: (last accessed 13 October 2012), citing Margaret Shaw et al, “A Survey of Women in Institutions and Under Community Supervision in Ontario” (Toronto: Research Services Strategic Policy and Planning Division, Ministry of the Solicitor General and Correctional Services, 1994). A more recent study put the number at one in 40. See Alison Cunningham and Linda Baker, “Waiting for Mommy: Giving a Voice to the Hidden Victims of Imprisonment” (London, ON: Centre for Children & Families in the Justice System, 2003) at 6, online: (last accessed 13 October 2012).

[5]Smith, “Ignored Woman,” supra.

[6]Inmate’s Rights,” supra.

[7]Ibid; Smith, “Ignored Woman,” supra.

[8] For another example in which the Ontario Ombudsman was involved, see accessed 13 October 2012); see also “Inmate’s Rights,” supra.

[9]Thank you to Leo Russomanno for pointing this out to me. See, eg, R v McKeon, [2009] OJ No. 4189 (CJ); R v Lammi, [2007] OJ No. 2911 (CJ); R v King, 2007 ONCJ 447; R v Dodd, [2004] OJ No. 6074 (CJ).

[10]Section 24(1) of the OntarioMinistry of Correctional Services Act, RSO 1990, c M.22, provides that “Where an inmate requires medical treatment that cannot be supplied at the correctional institution, the superintendent shall arrange for the inmate to be conveyed to a hospital or other health facility.” More detailed provisions exist federally. See Corrections and Conditional Release Act, SC 1992, c 20ss85-89, cited in Debra Parkes, “A Prisoner’s Charter? Reflections on Prisoner Litigation Under the Canadian Charter of Rights and Freedoms” (2007) 40 UBC L Rev 629 at 630 [Parkes, “Prison’s Charter”].

[11]Parkes, “Prisoner’s Charter,supra at 635.

[12]Section 243 of the Criminal Code.The decision under appeal is R v Levkovic, 2010 ONCA 830, 271 OAC 177.

[13] The parallels between the Supreme Court of Canada appeals and the incident at the Ottawa-Carleton Detention Centre came to me after misreading a tweet of @BrendaCossman’s!

[14]Factum at para 16.

[15]Ibid at para 15, citing, inter alia,R v Malmo-Levine, 2003 SCC 74,[2003] 3 SCR 571 at para 85, Blencoe v British Columbia(Human Rights Commission), 2000 SCC 44,[2000] 2 SCR 307at para 82; New Brunswick (Minister of Health and Community Services) vG.(J), [1999] 3 SCR 46, 177 DLR (4th) 124 at paras 58-64; Rodriguez v Attorney-General of British Columbia, [1993] 3 SCR 519 at 587-588, 107 DLR (4th) 342.

[16]Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134 at para 93 [Insite], citingR v Morgentaler, [1988] 1 SCR 30, 44 DLR (4th) 385, Rodriguez, supraand Chaoulli v Quebec (Attorney General), [2005] 1 SCR 791, 2005 SCC 35.

[17]Rodriguez, supra at 594.

[18] See Insite, supra.

[19] Factum at n 20.

[20]Smith, “Ignored Woman,” supra.
Designed by Rachel Gold.