Mom charged in newborn's death suffers mental struggles that may complicate court case: expert

A Winnipeg mother charged in the death of her newborn daughter has a low IQ and little understanding of consequences, a court was told during a previous sentencing hearing making the current case against her both rare and potentially complex, a legal expert says.

Three weeks ago, police announced Jeanene Rosa Moar had been charged with manslaughter and concealing the body of a child after investigators said they discovered the infant's body in a garbage bin on a north Winnipeg back lane.

At a sentencing in 2016, a Manitoba provincial court heard Moar had significant cognitive and adaptive functioning impairment, and a full scale IQ below 70. She had a difficult upbringing that included using drugs from the age of 14, court heard.

That sentencing also heard Moar was vulnerable to victimization and had a history of being exploited and that because of her cognitive ability, she wasn't able to think things through or understand consequences.

As a result, her lawyer in that case argued she had diminished moral culpability, a concept also known as blameworthiness.

At a separate sentencing two years later, court heard Moar also struggled with fetal alcohol spectrum disorder, addictions and homelessness, CBC previously reported.

Kathy Bueti, a criminal defence lawyer in Winnipeg, says all that combined makes the current case against Moar who is innocent until proven guilty an unusual one.

"One of those things in and of themselves may pose problems and may or may not be a defence," said Bueti, who works at the firm representing Moar but has not been involved in the case.

"But when you start getting all of them together and they intertwine, obviously it makes it a much more complicated matter. So that's part of the backdrop that we're working with here."

Police said earlier this month they believe the infant was born at a home in Winnipeg's Garden City neighbourhood, and alleged she was alive when concealed in a garbage bin on Boyd Avenue. No further details about the case have been released.

While one expert on mothers who kill their newborns said earlier this month she was dismayed to see Moar charged with manslaughter instead of infanticide, which carries a lesser maximum sentence, another expert in criminology says she wasn't surprised.

Kelly Gorkoff, chair of the University of Winnipeg's criminal justice department, said that's because of what she sees as the criminal justice system's "punitive kind of turn towards the harshest charge possible," a shift she says began with laws regardingmandatory minimum sentences for certain crimes in Canada.

"So I would really want to question, what is it that the police and the Crown are really trying to achieve in laying that kind of manslaughter charge? It certainly isn't about helping the offender," Gorkoff said.

Bueti says the decision of what charges to lay typically falls to a senior Crown attorney, who makes the call based on the evidence available at the time. But as more evidence becomes available, those charges can change.

And because manslaughter is considered a catch-all homicide charge one that covers cases that don't fit under the criteria for murder or infanticide it comes with some flexibility, Bueti says.

"On one end, it's as close to murder as you can get without it being murder. And at the lowest end, it's as close to an accident as you can get without it being an accident," she said.

That means it comes with an equally broad range of sentencing possibilities, ranging from life in prison to a sentence that doesn't include incarceration at all, Bueti says.

However, without knowing more about the case, it's hard to say whether other charges could have applied or whether they were considered, says David Ireland, an associate professor of law at the University of Manitoba.

"There could be facts upon which infanticide could have been charged and they've decided not to charge it. It's not an uncontroversial charging mechanism," Ireland said.

"The prosecutor has obviously decided there's a reasonable likelihood of conviction for manslaughter. Now, whether there would also be reasonable likelihood of conviction for murder or for infanticide, I don't know."

In an emailed statement, a spokesperson for the Manitoba Prosecution Service previously said it reviews the evidence and circumstances of each case and determines which charges reflect what they believe happened.

Once someone is charged with manslaughter, Ireland says, it's up to Crown prosecutors to prove both that the person ended someone's life and that there was what's known as an "objective foreseeability" of harm in their actions.

However,they don't have to prove foreseeability of death as they would with a murder charge, he says.

As for the defence, Bueti says the case is now in their hands.

"Now, the onus will sort of shift to the defence to say, 'OK, look, we think that there are cognitive challenges. We think that there's mental health issues. We think that there might be substance abuse issues,'" she said.

"And they will get experts and they will get reports and they will either provide that to the Crown in advance or through the course of hearings before trial judges and/or jury. So at some point, that information will be fleshed out in a lot more detail."

Moar remains in custody. The matter returns to court on July 8.