Episode 42 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 45 & Surgical Operations

In the last episode, we discussed the protection granted to a parent, guardian, or teacher when reasonable force is used to correct a child or pupil. Under the same rubric of “Protection of Persons In Authority” is section 45, which permits, under certain circumstances, the use of force required to engage in surgical operations. The purpose of this section is twofold: first, it provides protection to those operating on an individual who may not be in a position to consent to the use of force required in an operation. The second purpose, is to provide an exemption from the common law rule, as per Jobidon, that no one may consent to bodily harm and a similar exemption from s. 14 of the the Criminal Code, in which no one may consent to death. As an aside, s. 14 will soon be amended to permit assisted death in accordance with the ruling in the Carter case. 

Section 45 reads as follows:

Every one is protected from criminal responsibility for performing a surgical operation on any person for the benefit of that person if

            (a) the operation is performed with reasonable care and skill; and

(b) it is reasonable to perform the operation, having regard to the state of health of the person at the time the operation is performed and to all the circumstances of the case.

Historically, this protection has been in the Criminal Code since the Code’s inception. In fact, the 1892 version is very similar in wording to the present day provision. Notice this section does not apply to health professionals only. Rather it speaks of “every one” or any person who performs a “surgical operation.” However, the protection only extends to those individuals who perform the operation with “reasonable care and skill.” Presumably, a person who is not a health professional or even arguably a person who is not trained in performing such an operation would not be using “reasonable care and skill.” I will discuss a case below where this concept was at issue. In any event, having that expertise is not sufficient as it must be reasonable for the operator to perform the operation. To determine reasonableness, the trier of fact must consider the state of health of the person at the time of the operation and all the circumstances surrounding the event. Further, the operation must be to the “benefit” of the individual.

Echoing the protection afforded by s. 45 is the incumbent legal duty under s. 216, requiring those who undertake to administer surgical treatment, which may endanger life, to use all reasonable care and skill. This section will, of course, be discussed more fully at some later date. Additionally, s. 217 is engaged as it depicts a broader duty requiring everyone who undertakes an act as under a legal duty to do it if an omission to act may be dangerous to life. Once, therefore, there has been a commitment to perform the act, the person is under a duty to complete the act if a failure to proceed may result in serious harm. A surgeon cannot simply walk away from the surgery. However, there is debate over the possible chilling effect an isolated reading of s. 217 might produce as surgeons are often required to decide during the course of the operation whether or not continuing such a procedure is in the best interests of the patient. Certainly there is an argument to be made that sections 45, 216, and 217 should be read one with the other to give appropriate context and to ensure surgical procedures are carried out in a timely and considered manner but also in light of the realities of life and death decisions.

Turning back to the possibility surgery is not performed by a health professional, this scenario was at issue in the SCC 2012 DJW decision. The accused was charged with criminal negligence causing bodily harm, assault with a weapon, and aggravated assault, as a result of performing a religious circumcision on his four-year-old son, at his home, without the assistance of a doctor or a circumcision specialist. His son suffered serious injuries necessitating hospitalization and surgery. The British Columbia Court of Appeal, in dismissing the conviction, concluded that the “force” used, as in the surgery conducted on the child, was not reasonable in the circumstances. Although the case provided an opportunity for the Supreme Court of Canada to comment on whether or not it was ever reasonable for a person without medical training to conduct a circumcision, the Court declined to comment, preferring to uphold the conviction in a very brief oral judgment.

Section 45 is a pragmatic section (see similar comments made by Chief Justice McLachlin in paragraph 55 of the 2011 J.A. case on s. 45), which is rarely referred to in case law and is applicable in limited circumstances. Yet it remains an untested section, particularly in the area of surgical procedures undertaken by non-health professionals. It is also a section worth watching considering the forthcoming changes to the common law prohibiting consensual death.