The Pregnant Minor: Contraception and Abortion under Canadian Law

Criminal Code, Can, Rev. Stat., c. C–34 as amended, §251 (1970).

Somerville M.A. , Consent to Medical Care, at 43–44 (Law Reform Commission of Canada, Ottawa) (1979).

Other possible, but less likely, charges should also be noted. Where the parents purport to consent to contraception for a minor both the physician and parents could be guilty of contributing to the delinquency of a minor, an offense under the Juvenile Delinquents Act, Can. Rev. Stat., c. J–3 §33 (1970). This is true because “juvenile delinquen[cy]” includes being “guilty of sexual immorality or any similar form of vice….” Id., §2(1). The parents may also be guilty under §166 of the Criminal Code, note 1 supra, which creates the offense of a parent procuring his or her female ward to have sexual intercourse. See generally, Dickens B.M. , Medico–Legal Aspects of Family Law, at 33, (Butterworths, Toronto) (1979).

See, e.g., R. v. George, 128 C.C.C. 289 (Supreme Court of Canada) (1960).

See note 18 infra.

Although irreversible or difficult to reverse methods of contraception are not usually considered in relation to minors, they are sometimes used (see Stump v. Sparkman, 435 U.S. 349 (1978)), particularly with respect to mentally incompetent minors. For a general discussion of the issues raised by the contraceptive sterilization of mentally incompetent persons, see Kouri R.P. Somerville M.A. , Comments on the Sterilization of Mentally Incompetent Persons in Canadian Civil and Common Law, Revue De Droit De L'Universite De Sherbrooke (Summer 1980).

Moriarity v. Brooks, 6 C.P. 684 (1834); R. v. Beckett, 1 Mood & R. 526 (1836).

Maiming requires making a person less able to fight or to defend himself or herself. See Stephen J.F. , A Digest of the Criminal Law, at 145 (F.H. Thomas & Co., St. Louis) (1878).

Criminal Code, note 1 supra, §206 (1). It should be noted that §206 (1) of the Criminal Code both designates and defines the term “human being” as the relevant concept for determining whether there is a victim in relation to whom a homicide offence can be committed. That is, “[a] person commits homicide when … he causes the death of a human being” (emphasis added). In comparison, the offences of assault (§244) and intentionally causing bodily harm (§228) are committed on a “person.”

Dickens notes in Medico–Legal Aspects of Family Law, note 3 supra, at 75–77, that §§206 and 221 of the Criminal Code both refer to a “child” before it becomes a “human being.” He suggests “that before such time the child may still be a person (by virtue of being “a child”), even though not within the protection of the Code.”

The contraceptive technique must be known, beyond a reasonable doubt, to act by way of abortion before the necessary mens rea for the offence of illegally procuring an abortion could be present. There is also the further question of whether the offense of abortion is constituted simply by causing the fertilized ovum to be expelled, or whether it is necessary for the ovum to have been implanted before its expulsion. See Dickens B.M. , note 3 supra, at 40–41, 79.

See Somerville M.A. , Surgical Interventions and the Criminal Law: Lawful or Excusable Wounding, McGill Law Journal (August 1980).

Depending on the particular circumstances a given contraceptive medical intervention may be characterized as therapeutic or non–therapeutic. In this respect, the definitions of therapeutic and non–therapeutic sterilization, formulated by the Law Reform Commission of Canada in Sterilization: Implications for Mentally Retarded and Mentally Ill Persons, at 106, 107 (Working Paper 24; Ottawa) (1979), are of interest. Therapeutic sterilization is “any procedure carried out for the purpose of ameliorating, remedying, or lessening the effect of disease, illness, disability, or disorder of the genito–urinary system….” In comparison, non–therapeutic sterilization is “a safe and effective procedure resulting in sterilization when there is no disease, illness, disability, or disorder requiring treatment….”

See Holder A.R. , Legal Issues in Pediatrics and Adolescent Medicine, at 271, (Wiley, New York) (1977), citing Pipel H.F. , and Wechsler N.E. , Birth Control, Teenagers and the Law, Family Planning Perspectives 1:29 (1969).

See Edmonds v. Armstrong Funeral Homes Ltd., 1 D.L.R. 676 (Ont. H.C.) (1931).

See Fleming J.G. , The Law of Torts, at 23 (The Law Book Co., Sydney, Australia) (5th ed. 1977); Prosser W.L. , Handbook of the Law of Torts, at 9–14 (West Publishing Co., St. Paul, Minn.) (4th ed. 1971).

There is no direct authority for this proposition in relation to trespass to the person, although there is for trespass to land (see, e.g., Turner v. Thorne, 21 D.L.R.2d 29 (1960)). A careful reading of a large number of cases shows that courts are more liberal with respect to finding sufficient causal connection between the tortious act and the damage where intentional torts are concerned. Perhaps this can be illustrated by a negative fact. It is very unusual to find a court discussing remoteness of damage issues in an intentional tort case.

See Dickens B.M. , note 3 supra, at 36–37, 97–98.

Id., at 97.

See Johnston v. Wellesley Hospital, 17 D.L.R. 3d 139 (Ont. H.C.) (1970); Somerville M.A. , note 2 supra, at 72–74.

See Dickens B.M. , note 3 supra, at 33; Somerville M.A. , note 12 supra.

See Somerville M.A. , note 2 supra, at 3–8. It should be noted that this statement assumes that the minor's common law power to consent to therapy carries with it the same correlative right to refuse therapy, as it would for a competent adult.

Infants Act, B.C. Rev. Stat, c.193, §1(4) (1960), as amended by B.C. Stat., c.43 1973.

Regulations passed pursuant to The Public Hospital Act, Ont. Rev Stat, c.378 (1970); Ont. Rev. Reg., 729, §§49, 49a (1970).

Loi sur la Protection de la Santé Publique, L.R.Q., c. P–35, §42 (1977).

Proceedings of the Fifty–Seventh Annual Meeting of the Uniform Law Conference of Canada, at 162 (1975).

Id. §1(c).

Medical Consent of Minors Act, N.B. Acts c. M–6.1, §1 (1976).

Note 23 supra, §§1(3) (a) and (b).

Id. § 1(4).

Note 25 supra, §42.

Re “D” and Council of the College of Physicians and Surgeons of British Columbia, 11 D.L.R. 3d 570, 577 (B.C.S.C.) (1970). It should be noted that this case was decided before the British Columbia legislation (note 23 supra) on consent of minors was enacted.

Id.

Cited by Dickens B.M. , note 3 supra, at 34–35.

Note 1 supra. Section 251 of the Criminal Code may indirectly govern the legality of an abortion since one of the conditions for its inapplicability is that compliance with its requirements is not reasonably possible. See discussion of Morgentaler Cases, note 39 and accompanying text infra.

Id., §251(4)(c).

Report of the Committee on the Operation of the Abortion Law (hereinafter referred to as the “Badgley Report”) (Minister of Supply & Services Canada, Ottawa) (1977).

Dickens B.M. , note 3 supra, at 43. The author states that “[i]t is clear that committee approval of a female's abortion is legally conclusive of the fact that ‘continuation of the pregnancy … would or would be likely to endanger her life or health.’ It is true that such a determination would be conclusive for the purposes of §251(4), that is to protect ‘a qualified medical practitioner’ from liability for procuring a miscarriage. It is not so clear that the determination would bind a court which needed to determine whether or not an intervention was therapeutic for another purpose, for instance in order to see whether third–party authorization (consent) to a medical intervention could be given.”

In Morgentaler v. R., 53 D.L.R. 3d 161 (1975), the Supreme Court of Canada ruled that §45 of the Criminal Code (which provides that a person is not criminally responsible for performing an operation upon someone if the performance of the operation is reasonable) is not applicable to a charge brought under the specifically permissive abortion law in §251 of the Criminal Code. The Supreme Court did hold, however, that the common law defense of necessity is applicable. The Morgentaler cases, criminal actions against a physician/defendant charged with failure to use the established mechanism for legal abortion, were defended on a number of grounds. The finally successful defense was that, since therapeutic abortion committees were relatively inaccessible and dilatory, the necessity of protecting the mothers' health required the performances of unauthorized abortions. The original cases were: R. v. Morgentaler (No. 1), 42 D.L.R. 424 (1973) (civil rights defense, relying heavily on United States Supreme Court decision — Roe v. Wade); R. v. Morgentaler (No. 2), 42 D.L.R. 3d 439 (1973) (attacking qualifications of Crown's expert witness); R. v. Morgentaler (No. 3), 42 D.L.R. 3d 441 (1973) (motion to call witness to contradict Crown's expert); R. v. Morgentaler (No. 4), 42 D.L.R. 3d 444 (1973) (defense of reasonableness of performing procedure); R. v. Morgentaler (No. 5), 42 D.L.R. 3d 448 (1973) (necessity of performing procedure).

The defence of necessity is retained pursuant to §7(3) of the Criminal Code, note 1 supra.

Morgentaler v. R., note 39 supra. See also, Dickens B.M. , note 3 supra, at 45.

Note 25 supra, §42.

This would be the case if the law were held to be that a minor could only consent to medical interventions after attaining the age of majority which is 19 years in Newfoundland under the Minors (Attainment of Majority) Act, Nfld. Rev. Stat., Act No. 71 §6(1) (1970).

It should be noted that the distinction between eventualities considered to be part of the “nature and quality of the act” and those regarded as “consequences,” may seem somewhat arbitrary and indistinct in some circumstances. For instance, a certain consequence may be considered an essential feature of the act itself and hence, part of its nature and quality, if it is very likely to occur and is characteristic of that act. See R. v. Bolduc and Bird, 59 W.W.R. 103 (B.C.C.A.) (1967) reversed on appeal, 60 W.W.R. 665 (1967) (Supreme Court of Canada); R. v. Harms, 2 D.L.R. 61 (1943) (Sask. Ct. of App.); R. v. Williams, 1 K.B. 340 (1923); Papadimitropoulos v. R., 98 C.L.R. 249 (H.C. Australia) (1957).

See Somerville M.A. , note 2 supra, at 15–16.

Dickens B.M. , note 3 supra, at 102, says that a minor can always refuse abortion, except possibly in a life–threatening situation.

Id., at 54.

E.g., pursuant to The Child Welfare Act, Ont. Rev. Stat., c. 85 (1978); or La Loi Pour la Protection de la Jeunesse, L.R.Q., c. P–34 (Quebec).

Dickens' comment (note 46 supra) may indicate that the parents' wishes will not predominate where a minor refuses an abortion, even though she is incapable of consent. Whatever is the legally correct position, it is suggested that Dickens' view represents the better ethical approach.

See Somerville M.A. , note 2 supra, at 58–61. It should be queried whether in the abortion situation a physician could make it a condition of undertaking to treat the minor that parental consent be obtained. This would not seem to breach any legal obligation of the physician, providing his conduct did not amount to abandonment of the patient after undertaking a treatment relationship, and providing the situation was not one of emergency in which the physician had an obligation to treat, as, for instance, under the Quebec Charter of Human Rights and Freedoms (La Charte des Droits et Libertés de la Personne), 1977 L.R.Q., c. C–12, §2; or, in Ontario under The Public Hospitals Act, note 24 supra, §§17 and 18.

See Dickens, B.M., note 3 supra, at 54.

Note 37 supra, at 239.

See Dickens, B.M., note 3 supra.