How different would Lindsay Clancy's murder trial look if it happened in Canada?

Unlike the U.S., Canada has an infanticide provision in the Criminal Code

WARNING: This article contains details about violence against children, infanticide and suicide.

As jurors deliberate whether or not Massachusetts mom Lindsay Clancy is criminally responsible for killing her three children, some observers have questioned whether the trial that has gripped the public for the past five weeks could have played out differently had it happened somewhere else.

That's because, unlike Canada, the U.K., and parts of Australia and Europe, the U.S. doesn't have infanticide provisions in its criminal code.

In Canada's Criminal Code, infanticide applies exclusively to mothers who kill their newly born children — defined as a person under the age of one year — while suffering from a "disturbed" mind as a consequence of birth and lactation.

It's a criminal offence, but carries a lesser sentence than murder or manslaughter, so legal experts say it is sometimes argued as a partial defence to the latter two charges.

The major difference is the sentence, with infanticide punishable by a maximum of five years, said Isabel Grant, a University Killam Professor in the Allard School of Law at the University of British Columbia who specializes in criminal law.

"Women who kill as a result of not recovering from childbirth should not face life imprisonment — that doesn't really serve anyone's interests if there was truly a postpartum illness at play," Grant, who has published extensively in the area of homicide, including infanticide, told CBC News.

"The United States has taken a much harsher approach to these cases than in Canada, with young women being sentenced to extraordinarily long periods of incarceration in some of these cases."

Clancy, 36, is accused of killing her three children in 2023 while her then-husband was running an errand. Over the past five weeks, jurors at the Plymouth County Superior Court in Plymouth, Mass., have heard that she strangled Cora, 5; Dawson, 3; and eight-month-old Callan with exercise bands in the basement of their home in the Boston suburb of Duxbury.

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She then attempted to take her own life by jumping out of a second-floor window, which left her paralyzed.

Clancy's defence doesn't dispute the killings. But they argue she isn't criminally responsible because she had bipolar disorder and was suffering from postpartum psychosis, a rare and little-understood mental health condition that can affect a new mom's sense of reality.

Prosecutors argue Clancy is guilty of three counts of first-degree murder because she plotted to get her husband out of the house so she could carry out the killings.

Jurors could find Clancy guilty of murder or manslaughter or acquit her if they find that she wasn't criminally responsible due to psychiatric illness. Clancy’s sentence could be as severe as life in prison, or, if acquitted, she could remain confined in a mental health facility or be released.

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Could Clancy have used infanticide defence?

Arguing for the lesser charge of infanticide in cases of this nature isn't a perfect solution, but is, on the whole, "far more just and merciful than the life sentences so common in the United States," Michelle Oberman, a professor at Santa Clara University School of Law and author of When Mothers Kill, recently wrote in the New York Times.

However, even if the U.S. had similar provisions to Canada, it may not have changed much for Clancy's case because of the ages of her older children, experts agree.

To qualify for the reduced sentence, the accused must meet all the criteria of the legal definition of infanticide, said criminologist Kirsten Kramar, author of Unwilling Mothers, Unwanted Babies: Infanticide in Canada.

The accused must be the woman who gave birth to the child killed, the child must be less than one year old at the time of the act or omission and the mother must be suffering from a disturbed mind as a consequence of birth and lactation, Kramar told CBC News.

Technically, in Canada, Clancy could have raised infanticide as a defence for the murder of Callan, who was eight months old, said Grant, the criminal law professor at UBC. But the killing of Clancy's older children could not be defended as infanticide even if she hadn't recovered from the birth of the youngest child when she killed them, she added.

"That is a shortcoming in the Canadian law."

Given what Grant called the extensive evidence of Clancy's serious mental health problems, "it is possible she would have been charged with manslaughter for the older children and infanticide for the infant but that would be a significant determination," she said.

Jurors have heard that Clancy was prescribed 13 psychiatric medications across different providers, and her attorneys say Clancy did everything she could to seek help, including going to the emergency room, calling a suicide hotline and checking herself into a psychiatric hospital.

Whether or not the charges might have changed, Grant says she suspects that, in Canada, "we would probably have less information about the case before it gets to trial, the trial would not be televised and she would have the option of being tried by a jury or judge alone."

That sentiment was echoed by Oberman, in the New York Times, who wrote these "tragedies can avoid becoming true-crime dramas" because they typically avoid going to public trial.

"Ms. Clancy’s trial, with its high-stakes drama and surrounding media frenzy, does little to honour her children," she added.

The judge in Clancy's trial told jurors to keep deliberating Tuesday after they said they could not reach a unanimous decision.

About Canada's infanticide legislation

Canada's infanticide legislation was passed in 1948, amended in 1955 and upheld in a few recent landmark cases. It's both an offence and a partial defence. Researchers have called its use "rare and complex."

Its purpose was to address situations where women — usually young, unwed women — felt compelled to kill their babies due to societal pressures, such as the stigma attached to unwed motherhood or the fate of the baby, said Kramar.

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"These were considered altruistic killings that did not merit the death penalty," Kramar said.

In Canada, capital punishment was abolished from the Criminal Code in 1976.

"It provides for mitigation of punishment that recognizes the social conditions of motherhood and that the killing is not done out of malice towards the baby," Kramar said.

Lawyers have previously noted the wording is intentionally vague so it can be handled case by case.

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In 2011, the law was upheld by Ontario's top court in the case of a Guelph woman convicted of infanticide after smothering two of her children. In 2016, the Supreme Court of Canada upheld the infanticide convictions for a Calgary woman who left three babies in a dumpster.

Most recently, in January, a Charlottetown woman who inflicted life-ending injuries on her three-month old daughter was sentenced to one year in jail after pleading guilty to infanticide.

Cassie Acorn was originally charged with first-degree murder, but a psychiatric evaluation determined she had a “disturbance of the mind” — namely postpartum depression — at the time of the crime.

During sentencing, provincial court Judge Jeff Lantz spoke about how many cases of infanticide involve mothers who did not want to be pregnant, gave birth in secret and then either killed or abandoned the infants to their death.

Acorn wanted the child to be born, Lantz said, but also recognized she was an abuse survivor with a cognitive disability who found herself overwhelmed with postpartum depression.

If you or someone you know is struggling, here's where to look for help:

Natalie Stechyson has been a writer and editor at CBC News since 2021. She covers stories on social trends, families, gender, human interest, as well as general news. She's worked as a journalist since 2009, with stints at the Globe and Mail and Postmedia News, among others. Before joining CBC News, she was the parents editor at HuffPost Canada, where she won a silver Canadian Online Publishing Award for her work on pregnancy loss. You can reach her at natalie.stechyson@cbc.ca.

With files from CBC's Nicola MacLeod and the Associated Press