Supreme Court of Canada
Irwin v. The Queen,  S.C.R. 462
Malcolm Irwin Appellant;
Her Majesty The
1968: February 15, 16; 1968: April 29.
Present: Judson, Ritchie, Hall, Spence and
ON APPEAL FROM THE SUPREME COURT OF ALBERTA,
Criminal law—Sale of drug to procure
abortion—Whether intention to use drug for that purpose an essential ingredient
of the offence—Criminal Code, 1953-54 (Can.), c. 51, s. 238.
The appellant was convicted of attempting to
commit the offence of unlawfully supplying a drug knowing that it was intended
to be used to procure the miscarriage of a female person, contrary to
s. 238 of the Criminal Code. The female in question was a
policewoman and had no intention of using the drug. It was argued by the
appellant that he could not have supplied the drug in question “knowing” that
it was intended to be used to procure a miscarriage because in fact it was not
intended that it be so used or employed. The appellant’s conviction was
affirmed by the Court of Appeal and he was granted leave to appeal to this
appeal should be dismissed.
Section 238 of the Code is directed against
the supplying or procuring of poison or noxious things for the purpose of
procuring abortion with the intention that they shall be so employed, and
knowing that it is intended that they shall be so employed. The intention of
any other person besides the accused himself that the poison or noxious thing
should be used to procure a miscarriage is not necessary to constitute
the offence. In the present case, the
appellant intended that the substance procured by him should be used to procure
a miscarriage. This case was therefore within the words of the statute.
Droit criminel—Vente d’une drogue pour obtenir
l’avortement—Est-ce que l’intention d’employer la drogue pour cette fin est un
élément essentiel de l’infraction—Code criminel, 1953-54 (Can.), c. 51,
L’appelant a été déclaré coupable de la
tentative de commettre l’infraction d’illégalement fournir une drogue sachant
qu’elle est destinée à être employée pour obtenir l’avortement d’une personne
du sexe féminin, contrairement à l’art. 238 du Code criminel. La
personne en question était de la police et elle n’avait pas l’intention
d’utiliser la drogue. L’appelant a soutenu qu’il ne peut pas avoir fourni la
drogue en question «sachant» qu’elle était destinée à être employée pour
obtenir l’avortement parce qu’en fait elle n’était pas destinée à être employée
à cette fin. La déclaration de culpabilité a été confirmée par la Cour d’appel,
et l’appelant a obtenu la permission d’appeler à cette Cour.
Arrêt: L’appel doit
L’article 238 du Code vise le cas d’une personne
qui fournit ou procure un poison ou des substances délétères dont le but est
d’obtenir l’avortement avec l’intention que ces substances soient employées à
cette fin, et sachant qu’elles sont destinées à être employées à cette fin.
L’intention de toute personne, autre que l’accusé lui-même, que le poison ou la
substance délétère sera employé pour obtenir l’avortement n’est pas nécessaire
pour constituer l’infraction. Dans le cas présent, l’appelant avait l’intention
que la substance fournie par lui soit employée pour obtenir un avortement. Le
cas tombe, par conséquent, sous les termes mêmes du statut.
APPEL d’un jugement de la Cour d’appel de
confirmant une déclaration de culpabilité. Appel
APPEAL from a judgment of the Supreme Court
of Alberta, Appellate Division1, affirming the appellant’s
conviction. Appeal dismissed.
S.J. Helman, Q.C., and R. Kambeitz, for
E.L. Collins, for the respondent.
The judgment of the Court was delivered by
RITCHIE J.:—This is an appeal brought with leave
of this Court from a judgment of the Appellate Division of
the Supreme Court of Alberta1
affirming the appellant’s conviction for attempting to commit the offence of
unlawfully supplying a drug knowing that it was intended to be used to procure
the miscarriage of a female person contrary to s. 238 of the Criminal
Code which reads as follows:
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
is liable to imprisonment for two years.
Leave to appeal was granted to this Court under
the provisions of s. 591(1) (b) of the Criminal Code on the
following question of law, namely:
Whether in the circumstances of the charge
the Appellate Division erred in the interpretation of the words “knowing that
it is intended to be used or employed to procure the miscarriage of a female
person”, as those words are used in Section 238 of the Criminal Code.
In the reasons for judgment delivered by
Mr. Justice McDermid on behalf of the Appellate Division, it was held
…if the person who supplied the drug
believes that the person to whom he is supplying it intends to use it to
procure a miscarriage that is sufficient for a conviction under the section. It
does not matter that the person to whom the drug was supplied did not in fact
intend to use it.
The appellant was charged as the result of a
policeman and policewoman, dressed in civilian clothes, going to his drug store
in Calgary where the policeman told the appellant that his girlfriend was
pregnant and said: “We were wondering if we could get something to do something
about it”. The appellant then supplied them with a “bean bag” saying that that
was what they needed and that it would cost $10.00. The “bean bag” consisted of
4 boxes of pills and a 2-ounce bottle of castor oil. Neither the policewoman
nor any girlfriend of the policeman was pregnant and neither of them intended
the pills to be used to procure a miscarriage.
At his trial before Chief Justice McLaurin, it
was contended on behalf of the appellant that he could not have supplied the
drug in question “knowing” that it was intended to be used to procure a
miscarriage because it was not intended that it should be so used or employed.
support of this contention, reliance was placed
on the decision of the Supreme Court of Victoria in the case of Reg. v.
it was decided on an equal division of the Court that “the words ‘intended to
be used’ must apply to the person supplied and not to the supplier” and Madden
Whatever difficulty there may be… arriving
at a knowledge of what another really “intends”, it at least is possible; while
the absurdity of asking a tribunal to be satisfied that a prisoner “knew”, as a
thing intended to be done, what admittedly no one ever did intend, has only to
be stated to be manifest.
The Hyland case runs contrary to a line
of authority starting with the case of Reg. v. Hillman, where Erle C.J., speaking of s. 59 of
the Offences Against the Person Act, 1861, which was virtually the same
as s. 238 of the Criminal Code, said:
The question is, whether or not the
intention of any other person besides the defendant himself, that the poison or
noxious thing should be used to procure a miscarriage, is necessary to
constitute the offence charged under the 24 and 25 Vict. c. 100, s. 59. We
are all of opinion that that question must be answered in the negative. The
statute is directed against the supplying or procuring of poison or noxious
things for the purpose of procuring abortion with the intention that they shall
be so employed, and knowing that it is intended that they shall be so employed.
The defendant knew what his own intention was, and that was, that the substance
procured by him should be employed with intent to procure miscarriage. The case
is therefore within the words of the Act.
The Hillman case was followed seventeen
years later in R. v. Titley, where
Stephen J. rendered a decision which has been quoted at length and adopted by
Mr. Justice McDermid in the reasons for judgment which he rendered on
behalf of the Appellate Division of the Supreme Court of Alberta in the present
No Canadian case directly in point was cited to
us and I have been unable to find one, but the authority of the Hillman
and Titley cases is recognized by leading Canadian text writers (see
Tremeear’s Criminal Code, 6th ed., page 385, and Crankshaw’s Criminal Code of
Canada, 7th ed., pages 361 and 362). These cases also appear to have been
widely followed in other parts of the Commonwealth as indicated by the case of R.
v. Neil, which
is a decision
of the Supreme Court of Queensland, and Rex
v. Noseworthy, a
decision of the Court of Appeal of New Zealand. The same reasoning appears to
have been followed by the courts in South Africa; see R. v. Freestone.
In my view the reasoning of Erle C.J. in the Hillman
case, supra, applies to the construction to be placed on s. 238 of
the Criminal Code and I agree with the interpretation of that
section adopted by the Appellate Division.
For these reasons, as well as for those
expressed in the reasons for judgment delivered by Mr. Justice McDermid, I
would dismiss this appeal.
Solicitors for the appellant: Helman,
Fleming & Neve, Calgary.
Solicitor for the respondent: The
Attorney General of Alberta.