Irwin v. The Queen

RITCHIE J.:-This is an appeal brought with leave of this Court from a judgment of the Appellate Division of 1 (1967), W.W.R. 103, [19681 2 C.C.C. 50.

S.C.R.

the Supreme Court of Alberta' affirming the appellant's conviction for attempting to commit the offence of unlaw- U fully supplying a drug knowing that it was intended to be upyn rgkoigta twsitne ob Rh used to procure the miscarriage of a female person con- ' trary 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 Mr. Justice McDermid on behalf of the Appellate Division, it was held that:

... 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. In 1 (1967), W.W.R. 103, [19681 2 C.C.C. 50.

R.C.S.

[19681 support of this contention, reliance was placed on the decision of the Supreme Court of Victoria in the case of Reg. v. IawiN Hyland , where it was decided on an equal division of the THE Court that "the words 'intended to be used' must apply to Ritchie J. the person supplied and not to the supplier" and Madden - C.J. said:

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 3 , 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 case.

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 (1898), 24 Vict. L.R. 101.

3 (1863), 9 Cox C.C. 386, 169 E.R. 1424.

(1880), 14 Cox C.C. 502.

5 [19091 S.R.Q. 225.

S.C.R.