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The Pregnant Minor: Contraception and Abortion under Canadian Law
Published online by Cambridge University Press: 01 January 2021
Extract
Regulation of access to contraception or abortion by minors has been a major issue in many jurisdictions over the past decade. This article will investigate the current law in Canada and will enable comparisons to be drawn with the situation in other jurisdictions, particularly those in the United States in light of the United States Supreme Court's recent decision upholding the Hyde Amendment which restricts the use of federal funds for abortions.
Some of the legal issues present are common to both contraception and abortion. However, because abortion is expressly regulated by the Criminal Code of Canada, there are also significant differences. The two major issues are the legality of the procedures themselves and consent. These questions are both separate and related: they are separate because the legality of a medical intervention must be looked at apart from consent, and related because consent is one of the factors upon which legality depends.
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References
Criminal Code, Can. Rev. Stat., c. C-34 as amended, §251 (1970).Google Scholar
Somerville, M.A., Consent To Medical Care, at 43–44 (Law Reform Commission of Canada, Ottawa) (1979).Google Scholar
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).Google Scholar
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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).Google Scholar
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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.Google Scholar
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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.Google Scholar
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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).Google Scholar
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).Google Scholar
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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.Google Scholar
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