Three weeks ago, police announced that Jeanene Rosa Moar had been charged with manslaughter and hiding the body of a child after investigators said they found the baby’s body in a rubbish bin in a back lane in northern Winnipeg. In a 2016 conviction, a Manitoba district court ruled that Moar had significant cognitive and adaptive functional disability and a full-scale IQ below 70. She had a difficult upbringing that included drug use from the age of 14, according to the court. This condemnation also sounds like Moar was vulnerable to victimization and had a history of exploitation – and that because of her cognitive ability, she was unable to think things through or understand the consequences. As a result, her lawyer in that case claimed that she had reduced her moral guilt, a concept also known as credibility. In a separate conviction two years later, the court also heard Moar struggled with fetal alcohol spectrum disorder, addictions and homelessnesspreviously reported by the CBC. Kathy Buetti, a criminal defense lawyer in Winnipeg, says all of this together makes the current case against Moar – who is innocent until proven guilty – unusual. “One of these things alone can create problems and may or may not be a defense,” said Buetti, who works for the company that represents Moar but has not been involved. “But when you start to put it all together and they get involved, it obviously makes it a lot more complicated. So that’s part of the scenario we’re working on here.” Kathy Bueti, a Winnipeg criminal defense lawyer, says the current case against Jeanene Rosa Moar is unusual. (Submitted by Kathy Bueti) Police said earlier this month they believed the baby was born in a house in Winnipeg’s Garden City neighborhood and claimed he was alive when he was hidden in a rubbish bin on Boyd Avenue. No further details have been released on the case. While a specialist in mothers who kill their newborns said earlier this month that she was disappointed to see Moar is charged with homicide instead of infanticideleading to a lower maximum sentence, another forensic expert says he was not surprised. Kelly Gorkoff, president of the Department of Criminal Justice at the University of Winnipeg, said this was due to what she saw as a “punitive kind of turn of the criminal justice system towards the harshest charge”, a change she said began with laws on minimum mandatory penalties for certain crimes in Canada. “So I really want to ask myself, what is it … the police and the Crown are really trying to achieve by uttering this kind of homicide charge? Certainly not to help the perpetrator,” Gorkov said. Kelly Gorkoff, president of the Department of Criminal Justice at the University of Winnipeg, says the “punitive shift of the criminal justice system to the harshest category” is a change that began with mandatory minimum sentence laws for certain crimes. (Submitted by Kelly Gorkoff) Buetti says that the decision on which charges will be imposed is usually left to a senior Crown lawyer, who makes the call based on the information available at the time. But as more data becomes available, these charges may change. And because homicide is considered a homicide category – covering cases that do not meet the criteria for murder or infanticide – it comes with some flexibility, Bueti says. “On the one hand, it is as close to murder as you can get without being a murder. And at the lower extremity, it is as close to an accident as you can get to without being an accident,” he said. That means it comes with an equally wide range of sentencing possibilities, ranging from life imprisonment to a sentence that includes no imprisonment at all, Bueti says. However, without knowing more about the case, it is difficult to say whether other charges could have been applied or taken into account, says David Ireland, associate professor of law at the University of Manitoba. David Ireland, an associate professor of law at the University of Manitoba, wonders if other allegations could be made or considered in Moore’s case. (Submitted by David Ireland) “There may be facts that could be blamed on infant murder and they decided not to charge it. It is not an indisputable charging mechanism,” Ireland said. “The prosecutor has obviously decided that there is a reasonable possibility of a conviction for negligent homicide. Now, whether there would also be a reasonable possibility of a conviction for murder or infanticide, I do not know.” In a statement sent by email, a spokesman for the Manitoba Public Prosecutor’s Office said earlier that it was examining the facts and circumstances of each case and determining which charges reflected what they believed had happened. When someone is accused of negligent homicide, Ireland says, it is up to Crown prosecutors to prove that the person ended someone’s life and that there was what is known as “objective predictability” of harm in their actions. However, they do not have to prove the predictability of death as they would with a murder charge, he says. As for the defense, Buetti says the case is now in their hands. “Now, the weight will shift to the defense to say, ‘Okay, look, we think there are cognitive challenges. We believe that there are mental health problems. “We believe there may be problems with substance abuse,” he said. “And they will take experts and receive reports and either provide it to the Crown in advance or during hearings before judges and / or jurors. So, at some point, this information will be enriched… much more detail.” Moar remains in custody. The case returns to court on July 8.
