Criminal Code of Canada - section 238(2)

section 238(2)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows for the justification of causing the death of a child in order to preserve the life of the mother in good faith.

SECTION WORDING

238(2) This section does not apply to a person who, by means that, in good faith, he considers necessary to preserve the life of the mother of a child, causes the death of that child.

EXPLANATION

Section 238(2) of the Criminal Code of Canada is a provision that allows individuals to avoid criminal liability in certain circumstances where they cause the death of a child. Specifically, the provision provides an exemption to individuals who, in good faith, cause the death of a child in order to preserve the life of the child's mother. The provision is grounded in the recognition that there may be situations where the only way to save a mother's life is to terminate a pregnancy, even if that terminates the life of the unborn child as well. In such cases, the law acknowledges that the preservation of the life of the mother is a paramount concern. Importantly, this provision does not create a blanket exception to criminal liability. Rather, it requires that the individual act in good faith, meaning that they must genuinely believe that the action they take is necessary to preserve the life of the mother. It is also worth noting that this exemption only applies to the specific offence outlined in section 238(1) of the Criminal Code, which prohibits individuals from causing the death of a child who has not yet become a human being. Other criminal offences, such as murder or manslaughter, would still be applicable in situations where an individual causes the death of a child in circumstances not covered by this provision. Overall, section 238(2) of the Criminal Code of Canada provides a limited exemption to criminal liability for individuals who, in good faith, cause the death of a child in order to preserve the life of the child's mother. It is an important recognition of the difficult and complex moral and ethical issues surrounding abortion and the preservation of life.

COMMENTARY

Section 238(2) of the Criminal Code of Canada is an incredibly complex and controversial provision that deals with the concept of the "defence of necessity" in situations where the life of a mother and child are at risk. Essentially, this provision allows for individuals to legally terminate the life of a child if they believe, in good faith, that it is necessary to preserve the life of the mother. There are several elements of this provision that are worth exploring in more detail. Firstly, the provision requires that the individual act in "good faith." This means that they must genuinely believe that it is necessary to take the life of the child in order to save the mother's life. The standard of proof for this is high, and individuals will likely have to demonstrate that they consulted with medical professionals and exhausted all other options before turning to this course of action. Secondly, the provision only applies in situations where the mother's life is at risk. It does not apply to cases where the mother's health, or the child's health, are at risk. This means that the provision is limited in scope and only applies in the most extreme circumstances. One of the main criticisms of this provision is that it could potentially be used to justify infanticide, which is the intentional killing of a newborn child. While the provision specifically refers to the death of a child, it does not define what constitutes a "child." This means that it could potentially be interpreted to include newborn infants, and there are concerns that it could be abused in cases where the mother regrets her decision to have the child. Despite these criticisms, it is important to note that the provision is intended to be a last resort for individuals who find themselves in truly dire situations. It is designed to ensure that mothers who are facing life-threatening complications during childbirth are able to receive life-saving treatment without fear of legal repercussions. While there may be legitimate concerns about the potential misuse of the provision, it is ultimately up to the courts to interpret and apply the law in a way that is consistent with the intent of the legislation. In conclusion, Section 238(2) of the Criminal Code of Canada is a highly controversial provision that allows for the termination of a child's life in situations where the mother's life is at risk. While there are concerns about the potential misuse of the provision, it is ultimately designed to be a last resort for individuals who find themselves facing truly extreme circumstances. It is important that the provision be interpreted and applied in a way that is consistent with the intent of the legislation and that the courts carefully consider the circumstances of each individual case.

STRATEGY

Section 238(2) of the Criminal Code of Canada provides an exception to the offense of infanticide, in cases where the child's death was caused by a person who was acting in good faith to preserve the life of the mother. This provision is crucial in cases where the mother's health is at risk and difficult choices need to be made about the course of action to take. However, navigating this section of the Criminal Code requires careful consideration of the facts and circumstances of each case, along with a thorough understanding of the legal requirements under the law. In this essay, we will discuss some strategic considerations when dealing with section 238(2) of the Criminal Code, along with some strategies that could be employed to ensure that the defense is successful. One of the most important strategic considerations in dealing with section 238(2) is to establish a strong factual basis for the claim that the mother's life was in danger. This requires a detailed review of the medical records, along with expert witness testimony from medical professionals who treated the mother. The evidence must establish that the mother's health was at such risk that it was necessary to take the life of the child to save hers. This can be a challenging task, as the legal standard for what constitutes a "necessity" can be high. Therefore, legal counsel must be particularly careful in constructing their client's defense. Another strategic consideration when defending a client under section 238(2) is the need to demonstrate that the actions taken were reasonable in the circumstances. This means that the defendant must show that they acted in good faith, with a reasonable belief that what they were doing was necessary to preserve the life of the mother. This often requires a careful analysis of the defendant's mental state at the time of the incident, along with detailed testimony from medical experts, eyewitnesses, and other relevant parties. In addition to these strategic considerations, there are several strategies that can be employed when defending a client under section 238(2) of the Criminal Code. One strategy includes establishing that the defendant had no other choice but to act as they did. This involves demonstrating that other courses of action were not realistic or feasible given the circumstances. For example, if the mother was at risk of hemorrhaging and no other medical professionals were available to provide assistance, the defendant may argue that they had no other choice but to take the life of the child to save the mother. Another strategy is to demonstrate that the defendant acted in accordance with generally accepted medical practices in similar situations. This involves marshaling expert testimony from medical professionals who have experience dealing with similar cases. This evidence can be particularly powerful in establishing that the defendant's actions were reasonable and necessary in the circumstances. Finally, it is important to consider the impact of section 238(2) on the broader legal and social context. Defending a client under this provision requires a careful balancing of the interests of the mother, the child, and society as a whole. Legal counsel must be mindful of the potential repercussions of their arguments and must be prepared to engage in a nuanced and thoughtful analysis of the relevant legal and ethical considerations. In conclusion, section 238(2) of the Criminal Code presents unique challenges for both defendants and legal counsel. Successfully navigating this provision requires careful attention to the facts and circumstances of each case, along with a thorough understanding of the legal requirements under the law. By employing careful strategies and tactics, however, defendants can increase their prospects of successfully defending themselves under this complex and nuanced provision.