INTRODUCTION AND BRIEF DESCRIPTION
Causing the death of an unborn child during birth in a way that would be considered murder if the child was born alive is a punishable offence.
SECTION WORDING
238(1) Every one who causes the death, in the act of birth, of any child that has not become a human being, in such a manner that, if the child were a human being, he would be guilty of murder, is guilty of an indictable offence and liable to imprisonment for life.
EXPLANATION
Section 238(1) of the Criminal Code of Canada deals with causing the death of an unborn child during birth. The primary objective of this section is to criminalize the act of causing the death of a child who has not yet become a human being, but who is in the process of being born. This section pertains to the act of causing the death of a child that would have been considered murder if they had already been born. In order for an individual to be found guilty of this offence, it must be proven that they caused the death of the child in a manner that would have constituted murder if the child had already been born. The punishment for violating this section is an indictable offence, which carries a sentence of imprisonment for life. This penalty is harsh because the act of causing the death of a child during birth is considered to be a heinous crime that is deserving of serious punishment. Overall, the purpose of section 238(1) is to protect the rights of unborn children and send a message that any injury or harm to them will not be tolerated. It is important to note that this provision does not apply to abortions, as abortions are lawful procedures under certain circumstances in Canada, and are governed by a separate set of legal rules and procedures.
COMMENTARY
Canada's Criminal Code serves as the legal framework for prosecuting criminal offenses in the country. Section 238(1) of the Criminal Code deals with the act of causing the death of a child during childbirth that has not yet become a human being. The section categorizes such an act as a serious offense and imposes severe penalties. This section applies to any person who intentionally causes the death of a child in the act of birth, where the child has not yet become a human being. This means that the child must have been aborted, miscarried, or stillborn before it reached viability, which is usually around 24 weeks. If the acts of a person leading to the death of the child were such that if the child were born and alive, it would be deemed murder, then that person would be guilty of an indictable offense under section 238(1). The offense carries the maximum sentence of imprisonment for life. This means that the courts can impose a sentence of imprisonment for any duration up to a person's natural life. The gravity of such an offense is equated to that of murder, a capital offense in Canada. While Canada abolished the death penalty for murder in 1976, a person convicted of an offense under section 238(1) can face imprisonment for the rest of their natural life. Section 238(1) of the Criminal Code recognizes that a child not yet born is not a legal person but acknowledges the moral implications of causing harm to an unborn child. It seeks to prevent acts causing harm to the unborn child by deterring people from committing such acts by imposing severe penalties. The section has faced criticism from both pro-life and pro-choice groups. Pro-life groups argue that the law should recognize the fetus as a human being from conception and that any act leading to its death should be considered murder. On the other hand, pro-choice groups argue that the law should exclude the fetus and not impose criminal sanctions on a person who terminates a pregnancy with the consent of a woman. Canada has limited exceptions to abortion under the Canadian case of R. v. Morgentaler, which states that women must have access to abortion for their physical and mental well-being. The law recognizes that the fetus is not a legal person until it has achieved complete separation from its mother's body and can support itself outside of the womb. Until then, the fetus is dependent on its mother's body, and the mother has the right to decide what to do with her own body. In conclusion, while section 238(1) of the Criminal Code of Canada criminalizes the act of causing the death of a child that has not yet become a human being during childbirth, the law has faced criticisms from both pro-life and pro-choice groups. The section considers the moral implications of causing harm to an unborn child and imposes severe penalties as a deterrent to such acts. However, it is important to recognize that a woman has the right to make decisions about her body, including whether to continue with a pregnancy or not, until the fetus has achieved complete separation from her body.
STRATEGY
Section 238(1) of the Criminal Code of Canada deals with the issue of causing the death of a child in the act of birth, which has not become a human being. The section makes it an indictable offence, and an offender is liable to imprisonment for life. When dealing with this section of the Criminal Code of Canada, there are some strategic considerations that need to be taken into account. These strategic considerations include legal and social factors that could impact the outcome of the case. Some strategies that could be employed to deal with this section of the Criminal Code of Canada include the following: Firstly, the legal considerations that need to be taken into account include the legal defenses that could be used in defending a case involving this section of the Criminal Code. A legal defense could be based on the absence of intent to cause the death of the child at birth. In such a case, the offender could argue that they did not intend to cause the death of the child, and the death was an unintended consequence of the birth process. Another legal defense could be based on the fact that the child had not become a human being before their death, and thus, the offense did not meet the legal definition of murder. Secondly, social factors need to be taken into account. In cases where this section of the Criminal Code is involved, the social considerations could include the sensitivity of the crime and the potential for negative press coverage. As such, an offender's lawyer could employ a strategy that emphasizes the emotional context of the crime and that the offender should not be vilified. Thirdly, a legal strategy to minimize liability could be used. If the offender accepts responsibility for the crime, the defense lawyer could work to negotiate a plea bargain to reduce charges and potential jail sentencing. This could be useful in cases where the evidence is stacked against the offender, and they run the risk of receiving a long jail sentence. In conclusion, when dealing with section 238(1) of the Criminal Code of Canada, there are strategic considerations that need to be taken into account. These considerations include legal and social factors that could impact the outcome of the case. It is essential to have a sound legal defense and consider the emotional nature of the crime, and the potentially harmful impact that negative public perception could have on the case. Additionally, legal strategies that aim to minimize liability, such as plea bargaining, could be used to reduce sentencing. Finally, it is important to work with a competent lawyer who has experience dealing with such cases and can help navigate the complexities that arise with crimes of this nature.