Abortion (Unconstitutional Offence)
| This page was last substantively updated or reviewed January 2020. (Rev. # 92259) |
Overview
- This offence was found to be unconstitutional, and is of no force or effect.
- Section 287 was repealed on September 19, 2019 by Bill C-75.
Wording of Offence
- Abortion
- Procuring miscarriage
287 (1) Every one who, with intent to procure the miscarriage of a female person, whether or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and liable to imprisonment for life.
- Woman procuring her own miscarriage
(2) Every female person who, being pregnant, with intent to procure her own miscarriage, uses any means or permits any means to be used for the purpose of carrying out her intention is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
- Definition of "means"
(3) In this section, "means" includes
- (a) the administration of a drug or other noxious thing;
- (b) the use of an instrument; and
- (c) manipulation of any kind.
- Exceptions
(4) Subsections (1) and (2) do not apply to
- (a) a qualified medical practitioner, other than a member of a therapeutic abortion committee for any hospital, who in good faith uses in an accredited or approved hospital any means for the purpose of carrying out his intention to procure the miscarriage of a female person, or
- (b) a female person who, being pregnant, permits a qualified medical practitioner to use in an accredited or approved hospital any means for the purpose of carrying out her intention to procure her own miscarriage,
if, before the use of those means, the therapeutic abortion committee for that accredited or approved hospital, by a majority of the members of the committee and at a meeting of the committee at which the case of the female person has been reviewed,
- (c) has by certificate in writing stated that in its opinion the continuation of the pregnancy of the female person would or would be likely to endanger her life or health, and
- (d) has caused a copy of that certificate to be given to the qualified medical practitioner.
- Information requirement
(5) The Minister of Health of a province may by order
- (a) require a therapeutic abortion committee for any hospital in that province, or any member thereof, to furnish him with a copy of any certificate described in paragraph (4)(c) issued by that committee, together with such other information relating to the circumstances surrounding the issue of that certificate as he may require; or
- (b) require a medical practitioner who, in that province, has procured the miscarriage of any female person named in a certificate described in paragraph (4)(c), to furnish him with a copy of that certificate, together with such other information relating to the procuring of the miscarriage as he may require.
- Definitions
(6) For the purposes of subsections (4) and (5) and this subsection,
...
"accredited hospital" means a hospital accredited by the Canadian Council on Hospital Accreditation in which diagnostic services and medical, surgical and obstetrical treatment are provided;
...
"approved hospital" means a hospital in a province approved for the purposes of this section by the Minister of Health of that province;
...
"board" means the board of governors, management or directors, or the trustees, commission or other person or group of persons having the control and management of an accredited or approved hospital;
...
"Minister of Health" means
- (a) in the Provinces of Ontario, Quebec, New Brunswick, Prince Edward Island, Manitoba and Newfoundland, the Minister of Health,
- (b) in the Provinces of Nova Scotia and Saskatchewan, the Minister of Public Health, and
- (c) in the Province of British Columbia, the Minister of Health Services and Hospital Insurance,
- (d) in the Province of Alberta, the Minister of Hospitals and Medical Care,
- (e) in Yukon, the Northwest Territories and Nunavut, the Minister of Health;
...
"qualified medical practitioner" means a person entitled to engage in the practice of medicine under the laws of the province in which the hospital referred to in subsection (4) is situated;
...
"therapeutic abortion committee" for any hospital means a committee, comprised of not less than three members each of whom is a qualified medical practitioner, appointed by the board of that hospital for the purpose of considering and determining questions relating to terminations of pregnancy within that hospital.
- Requirement of consent not affected
(7) Nothing in subsection (4) shall be construed as making unnecessary the obtaining of any authorization or consent that is or may be required, otherwise than under this Act, before any means are used for the purpose of carrying out an intention to procure the miscarriage of a female person.
R.S., 1985, c. C-46, s. 287; 1993, c. 28, s. 78; 1996, c. 8, s. 32; 2002, c. 7, s. 141.
Interpretation
- When Child Becomes Human
A "foetus" is not a "human being" or "person" within the meaning of the Criminal Code.[1]
- ↑
R v Sullivan, 1991 CanLII 85 (SCC), [1991] 1 SCR 489, per Lamer CJ
contra R v Marsh, 1979 CanLII 3014 (BC SC), 2 CCC (3d) 1, per Millward J
Interpretation
- Constitutionality
This provision was found to be unconstitutional.[1]
- ↑ R v Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 SCR 30, per Dickson J and Beetz J