The highly publicized Lindsay Clancy trial in Massachusetts has renewed discussion about one of the most difficult intersections of criminal law and mental health: what happens when a mother is accused of killing her children while allegedly experiencing severe postpartum psychiatric symptoms?
Although the Clancy proceedings are governed by Massachusetts law, the case raises an interesting comparative question: how would Canadian criminal law address similar allegations?
The Lindsay Clancy Murder Trial
Clancy was charged with murdering her three children, ages five, three, and eight months, in January 2023. Her defence did not dispute that she caused their deaths. Instead, it argued that she was suffering from postpartum psychosis and should be found not guilty by reason of insanity. Prosecutors maintained that her actions were deliberate and that she understood what she was doing.
After a trial lasting several weeks and seven days of deliberations, the jury was unable to reach a unanimous verdict. A mistrial was declared on September 4, 2026. The charges remain outstanding, and a hearing scheduled for September 29 is expected to address the next steps, which could include a retrial or other resolution.
Canada Has a Specific Criminal Offence of Infanticide
Unlike many American jurisdictions, Canada expressly recognizes infanticide as a form of culpable homicide.
Section 233 of the Criminal Code states that a female person commits infanticide when, by a wilful act or omission, she causes the death of her newly born child while she has not fully recovered from the effects of giving birth and, because of those effects or the effects of lactation, her mind is disturbed.
For this purpose, the Criminal Code defines a “newly-born child” as a person under one year of age. This means the offence has a considerably narrower scope than the circumstances alleged in the Clancy case, where two of the three children were older than one.
Infanticide Is Not Simply Another Name for Killing an Infant
The age of the child alone does not determine whether infanticide applies. Canadian law also requires a particular connection between childbirth or lactation and the mother’s mental condition.
The Supreme Court of Canada examined these requirements in R. v. Borowiec, a 2016 case involving a woman charged with second-degree murder following the deaths of two newborn children. She was instead convicted of infanticide, and the Supreme Court upheld that result.
Proving a “Disturbed” Mind
The Court explained that a “disturbed” mind under the infanticide provision does not necessarily require a recognized psychiatric diagnosis. The disturbance also does not need to meet the considerably more demanding legal test for being not criminally responsible because of mental disorder.
The concept may encompass mental agitation, instability or discomposure. However, the disturbance must exist at the relevant time and must be connected to the accused not having fully recovered from childbirth or to the effects of lactation.
Why Infanticide Is Legally Significant
The distinction between murder and infanticide can have major consequences. Both first-degree and second-degree murder carry a mandatory sentence of life imprisonment in Canada. Infanticide, by comparison, is a hybrid offence. When prosecuted by indictment, the maximum sentence is five years’ imprisonment.
Canadian criminal procedure also specifically allows an accused who has been charged with murder to be found guilty of infanticide where the evidence establishes infanticide but not murder.
As a result, the accused’s physical condition after childbirth, psychiatric evidence, medical records, symptoms, timing and other surrounding circumstances can become highly significant in a prosecution involving the death of a newborn.
Would Canada’s Infanticide Law Apply to a Case Like Clancy’s?
A case with facts resembling the Clancy allegations would not necessarily result in an infanticide charge in Canada. The most obvious limitation is the age requirement. In Clancy’s case, only the youngest child, who was eight months old, would fall within the Canadian statutory definition of a newly-born child. Her five-year-old and three-year-old children would not.
Even in relation to an infant under one year old, the existence of postpartum depression, postpartum psychosis or another psychiatric condition would not automatically establish infanticide. The statutory requirements would still have to be considered on the evidence, including whether the mother’s mind was disturbed because she had not fully recovered from childbirth or because of the effects of lactation.
Depending on the circumstances, allegations involving older children could instead raise questions about murder, manslaughter or the defence of mental disorder.
Infanticide and NCRMD Are Different Legal Concepts
Canadian law also recognizes the verdict of not criminally responsible on account of mental disorder, commonly abbreviated as NCRMD. Under section 16 of the Criminal Code, a person is not criminally responsible for an act committed while suffering from a mental disorder that rendered them incapable of appreciating the nature and quality of the act or of knowing that it was wrong.
This is a different and more demanding test than the disturbed-mind requirement associated with infanticide. The Supreme Court made that distinction clear in Borowiec. A mother’s mind may qualify as “disturbed” for purposes of infanticide without the mother necessarily satisfying the requirements for an NCRMD verdict.
The distinction helps explain why terminology such as postpartum depression or postpartum psychosis does not, by itself, determine the criminal outcome. A psychiatric diagnosis is medical evidence. Criminal responsibility ultimately depends on whether the applicable legal requirements are established.
What Happens After an NCRMD Verdict?
An NCRMD verdict is not the same as an acquittal based on a finding that the accused did not commit the act. Where a court or jury concludes that the accused committed the act underlying the offence but was exempt from criminal responsibility under section 16, the verdict is formally recorded as not criminally responsible on account of mental disorder.
The accused then becomes subject to the mental-disorder provisions in Part XX.1 of the Criminal Code. Depending on the circumstances and the person’s risk to public safety, the process may involve detention in a psychiatric hospital, a conditional discharge or an absolute discharge, with provincial or territorial Review Boards playing a central role.
Canadian courts may also order psychiatric assessments where evidence concerning NCRMD, fitness to stand trial, or the disturbed-mind component of an infanticide allegation is necessary. The Criminal Code expressly permits assessments concerning whether the balance of a mother’s mind was disturbed in proceedings arising from the death of her newly-born child.
Postpartum Mental Health Evidence Can Affect Several Legal Questions
Cases involving alleged postpartum psychiatric illness can require courts to distinguish among medical diagnosis, criminal intent and criminal responsibility. Evidence may come from psychiatrists, psychologists, family members, treating physicians, hospital records, prescriptions, communications, digital evidence and observations about the accused’s behaviour before and after the alleged offence. Different experts may also reach different conclusions about an accused’s mental condition.
The Clancy trial illustrated how sharply those interpretations can diverge. Her defence characterized the killings as occurring during postpartum psychosis, while prosecutors argued that evidence of planning and concealment demonstrated that she understood her conduct and its wrongfulness. The jury ultimately could not unanimously resolve the case.
Canadian courts can face similarly fact-intensive questions, although the legal tests applied would come from Canadian legislation and jurisprudence rather than Massachusetts law.
The Clancy Case Highlights a Distinctive Feature of Canadian Criminal Law
The Lindsay Clancy proceedings have attracted international attention partly because they place severe postpartum mental illness at the centre of a murder prosecution.
Canada approaches this intersection through more than one legal mechanism. The specific offence of infanticide addresses a narrow category involving mothers, newly-born children and mental disturbance connected with childbirth or lactation. The NCRMD regime separately applies where a mental disorder meets the requirements of section 16.
Neither framework means that a particular psychiatric diagnosis automatically dictates the outcome of a criminal case. The nature of the charge, the age of the child, the accused’s mental condition, the relationship between that condition and childbirth, the evidence of intent and the applicable legal test can all affect how proceedings unfold.
Barrison & Manitius: Oshawa Criminal Defence Lawyers Providing Top-Tier Advocacy Against Serious Criminal Charges
Cases involving murder, manslaughter, infanticide and mental disorder defences in Ontario can involve complex questions of criminal responsibility, psychiatric evidence and Criminal Code procedure.
If you are facing a serious criminal charge in Oshawa, Durham Region, and throughout Ontario, contact Barrison & Manitius. Our experienced criminal defence lawyers assist clients facing homicide charges and other serious allegations, including assault, drug offences, and weapons charges. We can explain the criminal court process, potential defences and the legal issues that may arise in your case. To schedule a confidential consultation, please contact us online or call 905-404-1947.