section 288

INTRODUCTION AND BRIEF DESCRIPTION

This section makes it illegal for anyone to supply or procure drugs, tools or instruments intended to be used for causing the miscarriage of a female, regardless of whether she is pregnant or not.

SECTION WORDING

288 Every one who unlawfully supplies or procures a drug or other noxious thing or an instrument or thing, knowing that it is intended to be used or employed to procure the miscarriage of a female person, whether or not she is pregnant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

EXPLANATION

Section 288 of the Criminal Code of Canada makes it illegal to supply or procure a drug or other noxious thing, or an instrument or thing, with the knowledge that it is intended for use in causing the miscarriage of a female, whether or not she is pregnant. This is a serious, indictable offence that carries a maximum penalty of two years imprisonment. The purpose of this section is to protect the safety and health of females and their unborn children. It acknowledges the danger of using drugs or other harmful substances to intentionally induce a miscarriage, which can cause serious physical harm or even death to the mother, as well as take the life of the unborn child. This section is applicable in situations where someone provides or obtains a harmful substance or instrument with the intent to cause a miscarriage, regardless of whether the female is actually pregnant or not. Even attempting to do so is illegal and can result in criminal charges. It should be noted that this section of the Criminal Code of Canada only addresses the act of supplying or procuring a drug, substance, or instrument with the intention of causing a miscarriage. The section does not address the act of actually causing a miscarriage. That offence would fall under a different section of the Criminal Code, depending on the circumstances. Overall, section 288 serves as an important reminder that taking actions to intentionally induce a miscarriage is illegal and carries serious consequences. It is essential to prioritize the safety and well-being of females and their children, and to seek proper medical care in the event of an unintended pregnancy.

COMMENTARY

Section 288 of the Criminal Code of Canada criminalizes the supply or procurement of drugs, noxious things, or instruments, intended to induce the miscarriage of a female person, regardless of whether or not she is pregnant. This section is significant in Canada's history of women's health rights and criminal justice, as it demonstrates the legal protections afforded to every woman in the country in regards to her reproductive rights. This section recognizes that the decision to terminate a pregnancy is a private matter that is informed by a woman's personal beliefs, health, and well-being. Therefore, it is an offense to either supply or procure a drug, noxious thing, or instruments with the purpose of causing an abortion. The law recognizes that the decision to have an abortion is a complex and personal one, and it ought to be wholly consensual between the person having the abortion and their medical practitioner. In the past, women have resorted to unsafe abortion methods, including seeking help from unqualified persons in desperate need to end their pregnancies. However, by making the supply or procurement of such drugs or instruments illegal, this section could be seen to further promote safer and more reliable medical practices in abortion provision in Canada. While some may argue that this section infringes on the rights of women, it is important to understand that the focus of this section is protecting a woman's right to make an informed decision regarding her reproductive health. The criminalization of the supply or procurement of drugs or instruments is a reflection of Canada's values and commitment to the protection of the health, welfare, and rights of women. Furthermore, this section is significant in that it is not restricted to just pregnant women; it is inclusive of all female persons. This recognition upholds their bodily autonomy as a fundamental human right, one that is not determined by whether one is currently pregnant or not. Women have the right to control their bodies, make decisions based on their personal beliefs, and seek medical attention that they deem necessary for their reproductive health. The offence criminalized by this section reinforces Canada's commitment to protecting these fundamental rights. Overall, Section 288 of the Criminal Code of Canada is a crucial component in ensuring women's reproductive health rights are protected in the country. It is an acknowledgment of the importance of safe, regulated medical practices that provide women with the support to make informed choices in regards to their reproductive health. As such, it is vital that this section is maintained and upheld to continue to promote the health, welfare, and rights of women in Canada.

STRATEGY

Section 288 of the Criminal Code of Canada deals with unlawful supply or procurement of a drug or other noxious thing or an instrument or thing for the purpose of procuring miscarriage of a female person, whether or not she is pregnant. This is a serious offence and attracts imprisonment for a term not exceeding two years. When dealing with such a section of the Criminal Code of Canada, there are some strategic considerations that one needs to take into account. Firstly, it is essential to understand the legal framework related to this offence. One needs to understand the elements of the offence, the penalties attached to the offence, and any defences that may be available. For instance, a person may argue that they did not know that the drug or other noxious thing would be used for procuring miscarriage and, therefore, did not have the requisite intent to commit the offence. Secondly, it is essential to understand the evidentiary requirements that a prosecutor must prove for the offence to be established. The prosecution must prove beyond a reasonable doubt that the accused unlawfully supplied or procured the drug or other noxious thing or an instrument or thing, knowing that it was intended to be used for procuring miscarriage. As such, it is possible for an accused person to argue that the prosecution has not met the evidentiary threshold required by law, hence the charges should be dismissed. Thirdly, it is essential to consider the potential consequences of a conviction. A conviction for an offence under section 288 may result in imprisonment, which may have severe personal and professional consequences for the accused. Therefore, in considering tactical considerations, an accused may obtain legal advice on alternative sentencing options that may be available to avoid imprisonment. Fourthly, it is essential to consider the potential role of defences, such as the defence of duress. In some situations, an accused may be compelled to procure the drug or other noxious thing by threats of harm or coercion. In such cases, it may be possible to argue that the accused was under duress and, therefore, did not have the requisite intent to commit the offence. In terms of strategies that could be employed, one strategy may involve arguing that the accused did not have the requisite intent to commit the offence. This may involve providing evidence to show that the accused did not know that the drug or other noxious thing would be used for procuring miscarriage. Alternatively, the accused may argue that the prosecution has not met the evidentiary threshold required by law, and as such, the charges should be dismissed. Another strategy may involve exploring alternative sentencing options such as a conditional sentence order. Such an order may allow an accused to serve their sentence in the community under conditions set by the court. In contrast, if the accused was sentenced to imprisonment, they would have to serve their sentence in prison. Additionally, the defence of duress may be employed in situations where the accused was compelled to procure the drug or other noxious thing. In this case, the accused would need to show that they were under immediate threats of harm or coercion, and there was no reasonable way to avoid the harm or coercion other than to procure the noxious thing. In conclusion, when dealing with an offence under section 288 of the Criminal Code of Canada, it is essential to understand the legal framework of the offence and the potential consequences of a conviction. Additionally, the court's evidentiary threshold and potential defences should be considered during such a trial. Therefore, a strategic defence may include arguing the accused did not have the requisite intent, exploring alternative sentencing options, or asserting the defence of duress.