INTRODUCTION AND BRIEF DESCRIPTION
This section criminalizes the intentional procurement of a miscarriage by a pregnant woman or anyone she permits to carry out the act.
SECTION WORDING
287(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.
EXPLANATION
Section 287(2) of the Criminal Code of Canada deals with the offence of intentionally causing a miscarriage by a pregnant woman. The section makes it an indictable offence for a female person who is pregnant to use any means or to permit any means to be used with the intent to terminate her pregnancy. The offence carries a maximum penalty of a term of imprisonment not exceeding two years. The section criminalizes the act of intentionally causing a miscarriage of pregnancy and is aimed at protecting the life of the fetus. The law recognizes that the fetus has legal rights and interests that must be safeguarded by the state. The protection of the fetus is in line with the doctrine of the sanctity of life, which holds that all human life has intrinsic value and must be protected. The section also recognizes the woman's right to bodily autonomy and reproductive choice. However, the law does not recognize the right to terminate a pregnancy at any stage, and there are restrictions on when and how a pregnancy can be terminated. The law mandates that the termination of a pregnancy must be done in accordance with specific medical guidelines and procedures. Any deviation from these guidelines constitutes a criminal offence, and the offender can be prosecuted. In conclusion, 287(2) is a significant section of the Criminal Code of Canada aimed at protecting the life of the fetus while balancing the rights of the pregnant woman. Anyone found guilty of intentionally causing a miscarriage faces serious criminal charges and imprisonment. The section serves as a deterrent to anyone who may consider taking such actions.
COMMENTARY
Section 287(2) of the Criminal Code of Canada criminalizes any female who, while being pregnant, intends to terminate her pregnancy and uses any means or permits any means to be used for the purpose of carrying out her intention. The woman is then found guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. This provision is heavily criticized from various aspects, including social, legal, and moral grounds. It is often referred to as an infringement of women's right to bodily autonomy, which includes the right to make choices about one's own body and reproductive health. Women advocating for choices regarding their reproductive health states that they should be able to determine their own reproductive health by deciding whether or not to carry a child to term. The abortion debate is quite complex, and the issue of criminalizing such an act adds another layer of complexity. Some argue that this section of the Criminal Code provides clarity on the legality of intentionally inducing or getting one's own abortion. It also establishes that the fetus has legal protection and anyone who harms the fetus can be held accountable in the eyes of the law. Opponents of this law argue that it infringes on women's basic human rights. It is erroneously based on the patriarchal system that dominated society in the past, where women were excluded from decision-making processes concerning their own health. It is discriminatory in the sense that it only applies to females, thereby undermining the principle of equal treatment under the law. It is also worth noting that this law disproportionately affects women in precarious social situations who are unable to access legal abortions or have dangerous alternatives. The law is somewhat ambiguous regarding what 'any means' entails. It has led to situations where women charged under this provision did not know they were pregnant or the best way to terminate the pregnancy safely and therefore were prone to unintentionally breaking the law. Moreover, experts argue that involving law enforcement in matters related to personal health and bodily autonomy in this manner may lead women to consider dangerous underground alternatives or unwanted childbirth, which can impact both the mother's and the child's health significantly. Additionally, the provision has resulted in numerous mistrials and wrongful convictions since it was introduced. There have been instances where women were falsely accused of attempting to cause a miscarriage due to the lack of clarity and uniformity in the interpretation of the law. In some cases, health professionals have been charged with violating this provision for performing medically necessary procedures or providing treatment and advice to women experiencing complications during their pregnancy. In conclusion, criminalizing women who intend to cause a miscarriage and their access to safe termination of pregnancy is a contentious issue. Although the provision attempts to protect the rights of a fetus, it has been a subject of controversy because it infringes upon other fundamental human rights, including women's right to bodily autonomy. As such, it's a provision that should be revisited and revised to reflect the evolving understanding of reproductive rights and to prevent unintended consequences.
STRATEGY
Section 287(2) of the Criminal Code of Canada criminalizes the act of a pregnant female person intentionally procuring her own miscarriage by using, or allowing the use of, any means. This provision poses various strategic considerations for legal practitioners, particularly those who represent clients facing charges under this section. The following are some strategies that can be employed to deal with this section of the Code: 1. Negotiation of plea bargains and reduced charges: One of the most common strategies in criminal cases is the negotiation of plea bargains. In cases where the evidence against the accused is strong, or where the accused admits guilt, negotiating a plea bargain can be a viable option. This may involve reducing the charges to a less serious offence or seeking a more lenient sentence. 2. Raising defences: Defences can be raised to challenge the prosecution's case or mitigate the accused's liability. Some of the possible defences that can be raised under section 287(2) include mistaken belief in consent, lack of intent, and medical necessity. The defence of medical necessity may be particularly relevant where the pregnancy poses a significant risk to the pregnant person's health or life. 3. Constitutional challenges: Constitutional challenges can be made to strike down section 287(2) of the Criminal Code or any other provision that violates the Canadian Charter of Rights and Freedoms. For instance, the right to life, liberty, and security of the person protected under section 7 of the Charter can be invoked to argue that criminalizing abortion violates this right. 4. Expert testimony: Expert testimony can be used to challenge the prosecution's evidence or support the accused's defence. Medical experts can be called to testify on the safety and necessity of certain abortion procedures or the physical and mental harms of denying access to abortion services. 5. Mitigation of sentence: In cases where the accused pleads guilty or is found guilty, it may be possible to mitigate the sentence imposed by emphasizing the circumstances surrounding the offence. For instance, prior history, the accused's personal circumstances, and the impact of the offence on the accused and others can be considered. 6. Advocacy and education: Legal practitioners, activists, and healthcare providers can engage in advocacy and education efforts to promote access to safe and legal abortion services and challenge the stigma and discrimination against women who exercise their reproductive rights. In conclusion, section 287(2) of the Criminal Code of Canada presents complex challenges for legal practitioners, advocates, and healthcare providers. Strategies such as negotiation of plea bargains, raising defences, constitutional challenges, expert testimony, mitigation of sentence, and advocacy and education may be employed to effectively deal with this provision and promote reproductive justice and human rights.