Desperate Women and Compassionate Courts: Infanticide in Nineteenth-Century Canada

University of Toronto Law Journal 34 (1984) 447-478

33 Pages Posted: 24 Jun 2013

See all articles by Constance Backhouse

Constance Backhouse

University of Ottawa - Common Law Section

Date Written: 1984


This paper analyzes the legal response to infanticide perpetrated by Canadian mothers in the nineteenth century. Despite legal prohibitions against contraception and the termination of pregnancies, courts were remarkably lenient toward mothers in cases of infanticide. The author discusses the judicial treatment of the criminal offence of “concealment” of the birth of a child, intended to ease the Crown's burden of proof. Very few women were charged with infanticide in Toronto compared to the number of infant bodies found in the city. Those who were charged were usually young, single, and lower class, and had tried to conceal their entire pregnancy. Juries were very hesitant to convict women of murder or manslaughter of their child. Triers of fact appreciated the social context that drove women to infanticide, and considered homicide of a baby to be less reprehensible than killing an adult. Juries were more likely to convict a woman of the lesser sentence of concealment. Child abandonment was a point of tension between the courts and the legislature; the legislature responded to judges' leniency toward women by enacting stricter criminal code provisions. The author concludes by comparing modern views of infanticide as a pathology to those of the nineteenth century. Women have gained more access to birth control and abortion, and there are more opportunities for child adoption and foster-care. Canadian attitudes toward children's rights have changed, with a corresponding transformation in social views toward infanticide.

Keywords: Canada, Canadian, legal, law, mother, history, historical, infanticide, contraception, pregnancy, conceal, birth, child, burden of proof, Toronto, feminist, feminism, murder, manslaughter, homicide, criminal, crime, code, abortion, Toronto, Ontario, courts, judges, police, prosecution

Suggested Citation

Backhouse, Constance, Desperate Women and Compassionate Courts: Infanticide in Nineteenth-Century Canada (1984). University of Toronto Law Journal 34 (1984) 447-478, Available at SSRN:

Constance Backhouse (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5

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