1048
McGILL LAW JOURNAL
[Vol. 26
A Defence to CrIminal Responsibility for Performing
Surgical Operations: Section 45 of the Criminal Code*
A number of writers commenting on the legality of surgical
operations in England and Canada have criticized the undue em-
phasis on the element of consent to the neglect of other important
considerations.1 Section 45 of the Canadian Criminal Code,2 which
under certain conditions confers protection from criminal re-
sponsibility on persons performing surgical operations, does not
mention consent. Protection is conferred for operations performed
for the benefit of the patient. Here the element of benefit appears
to replace that of consent, but the meaning of benefit is not clear.
Accordingly, the question has been raised whether certain voluntary
operations, for example, sterilization, would qualify for protection.
This matches a concern in England – where a similar statutory
defence is not available – with whether consent is relevant to, the
illegality of such operations. In the case of Morgentaler v. The
Queen,’ the Supreme Court of Canada affirmed that section 45 of
* This comment is a revision of material taken from a report entitled
Preliminary Study on Law and the Control of Life, which was prepared by
the author for the Law Reform Commission of Canada in August, 1974. In
addition to its use in the Morgentaler case (see note 6, infra), the material
was presented orally by the author at the International Symposium on the
Dying Human in Tel Aviv on January 17, 1978 and later printed in the
proceedings of the Symposium. It was also presented to Ontario’s Inter-
ministerial Committee on Medical Consent and later cited in a paper pub-
lished by that Committee entitled Options on Medical Consent (September,
1979). Further references to the material published here can be found in other
writings by the author, in the Law Reform Commission’s Medical Treatment
and Criminal Law and Consent to Medical Care and in Medical Interventions
and the Criminal Law (1980) 26 McGill LJ. 82. In view of the attention given
to this material in its unpublished form, it is published here for general
circulation among students, teachers and practitioners
interested in the
relationship between medical and criminal law. – Editor.
I See Hughes, Two Views on Consent in the Criminal Law (1963) 26 M.L.R.
233; Wright, “The Doctor’s Civil Duties and Responsibilities” in Blood Trans-
fusions without Consent (1961).
2 R.S.C. 1970, c. C-34.
3 [1976] 1 S.C.R. 616. In this case a doctor was charged with performing
an illegal abortion contrary to s. 251 of the Criminal Code. The patient had
requested the abortion. The doctor was acquitted at trial, but an appeal by
the Crown was allowed by the Quebec Court of Appeal which set aside the
jury verdict of acquittal and entered a conviction without ordering a new
1981]
COMMENTS – COMMENTAIRES
the Criminal Code is not available as a defence to a charge of pro-
curing an abortion contrary to section 251. It will be suggested
in this analysis that, as a general rule, other operations which meet
with the general approval of Canadian physicians carry protection
from criminal responsibility. References to the Draft Code, the
English Draft Code, or Stephen’s Draft Code mean the Draft Code
appended to the Report of the English Criminal Code Commission,
published in 1879.
I. Consent as an aspect of public policy
Section 45 provides that:
Every one is protected from criminal responsibility for performing a
surgical operation upon any person for the benefit of that person if:
(a)
(b)
the operation is performed with reasonable care and skill, and
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.
It is first found as section 67 in Stephen’s Draft Code substan-
tially in its present form, and was included in the Canadian Criminal
Code, 18924 as section 57. Since it does not mention consent, it does
not purport to distinguish consensual operations from those per-
formed without consent, and thus appears to be a defence which
rests entirely on the public policy underlying the general wording of
the elements comprising it. When may the physician or other person
performing the surgery neglect to obtain the patient’s consent, or
even proceed despite his resistance? It is submitted that only the
indications introduced by the controlling requirements of reason-
trial. The Supreme Court of Canada dismissed the appeal. In the course of
the trial, Hugessen A.C.J. of the Quebec Court of Queen’s Bench ruled that
s. 45 was a defence available to the accused. The history of s. 45, which will
be examined in this paper, indicates that since consent had been given, the
section was not applicable., This objection does not appear to have been
raised by counsel and it was not considered by the Court. Among other
things, this oversight would lead to the premise that operations done with
consent are illegal unless the conditions in the section are met, whereas
Stephen assumed the legality of operations agreed to by patients upon the
advice of their physicians. It should be no surprise that in the past some
Canadian doctors have been reluctant to perform elective operations such
as sterilization due to uncertainty as to whether the conditions in s. 45
would be met. Misunderstanding of the application of the section can also be
seen in the Report of the Royal Commission of Inquiry into Contraception,
Sterilization and Abortion in New Zealand (1977), 120-1, in its comments on
the application to voluntary sterilization of s. 61 of the New Zealand Crimes
Act, 1961, which is similar to s. 45 of the Canadian Criminal Code.
4 55-56 Vict., c. 29.
McGILL LAW JOURNAL
[Vol. 26
ableness suggest a possible answer and that the section can be
properly understood only in the light of its precursors in Stephen’s
A Digest of the Criminal Law,5 of which the 1887 edition is cited
in the Parliamentary Debates, along with the English Draft Code
and a Canadian Digest based on Stephen’s, as a source of the Cana-
dian Criminal Code. While public policy at all times played an
important part in Stephen’s formulation of the law in this area, in
his Digest it was expressed in terms of consent. Examination of
that expression furnishes answers to questions of consent and
provides some useful hints regarding the public policy attitudes
which underlie section 45.
Two articles in the Digest deal expressly with surgical opera-
tions. Article 204 provides:
Everyone has a right to consent to the infliction of any bodily injury in
the nature of a surgical operation upon himself or upon any child under
his care, and too young to exercise a reasonable discretion in such a
matter, but such consent does not discharge the person performing the
operation from the duties hereinafter defined in relation thereto.
Article 205 provides:
(Submitted) –
If a person is in such circumstances as to be incapable
of giving consent to a surgical operation, or to the infliction of other
bodily harm of a similar nature and for similar objects, it is not a
crime to perform such operation or to inflict such bodily harm upon
him without his consent or in spite of his resistance.
Both sections are governed by article 203, which provides:
The consent of a person killed or maimed to the infliction of death or
bodily harm, affects the criminality of such infliction to the extent
defined in Articles 204-209, both inclusive. In each of these Articles the
word “Consent” means a consent freely given by a rational and sober
person so situated as to be able to form a rational opinion upon the
matter to which he consents.
Consent is said to be given freely when it is not procured by force,
fraud, or threats of whatever nature.
To articles 204 and 205 Stephen appended this footnote: “I
know of no authority for these propositions, but I apprehend they
require none. The existence of surgery as a profession assumes their
truth.” The articles are formulated in terms of consent, a concept
which traditionally has played an important part in determining
the legality of an act. Article 205 reveals that consent is only one
aspect of a public policy which invokes other considerations. Article
205 does not deal with refusal of consent by a person capable of
giving it, even though that person may be in great danger. This
might be a case of necessity, yet presumably the law would protect
5 First published in 1877.
19811
COMMENTS – COMMENTAIRES
the person’s right to determine what he believes to be in his own
interest. However, in the absence of that capability, public policy
protects the person performing the surgery in spite of the patient’s
resistance. Protection of self-determination may also be seen in
article 204, where this right is recognized in the young, so long as
they are able “to exercise a reasonable discretion in the matter”.
The policy supporting preservation of health through surgery yields
to the right to self-determination where that right can be exercised
by a capable person.
II. The meaning of benefit
Section 45 of the Criminal Code requires that the operation be
for the benefit of the patient. The word benefit is not found in
articles 204 or 205. What does it mean? Some guidance is afforded
by the text of the articles and the footnote added by Stephen. The
existence of the profession of surgery assumes that people who
are capable may resort to the surgeon who will counsel them on the
advisability of subjecting themselves to his skills. The decision
will be made by them upon his advice. Should they ask him to
proceed with surgery, article 217 of Stephen’s Digest requires that
he “employ in doing it a common amount of such knowledge, skill,
attention and caution” which is “the legal duty of every person who
imdertakes (except in case of necessity) to admirlister surgical or
medical treatment, or to do any other lawful act of a dangerous
character, and which requires special knowledge, skill, attention,
or caution.” Article 217 became section 162 of the Draft Code, and
is now section 198 of the Criminal Code. Should the patient be in-
capable of giving consent, presumably the opinion of other surgeons
may later be consulted as to whether surgery was necessary and
whether the surgeon or other person undertaking it showed a
common amount of knowledge, etc., which would justify a finding
that he discharged his legal duty. It is submitted that the decision-
making process, which usually involves physician and patient, but
which under certain circumstances will involve only the physician,
is the sole criterion of benefit, and the subsequent opinion of other
physicians is merely evidence of need, where the patient is in-
capable of giving consent, and of acceptable performance of the
surgeon’s work once undertaken. Articles 204 and 205 recognize
surgery as lawful, and the exception in article 217 recognizes that
extraordinary and perhaps untried measures may have to be resort-
ed to in cases of necessity. Article 217 does not require that a
surgeon perform the act, but holds the person performing the
operation to the surgeon’s standard, except in case of necessity.
McGILL LAW JOURNAL
4[Vol. 26
In light of the above, it would appear that section 45 of the Criminal
Code was intended to deal with the situation where the patient is
not capable of consenting.0 If the patient is not capable, the person
performing the operation is protected from criminal liability, pro-
vided the patient’s condition necessitates surgery for the preserva-
tion of life or limb.7 If these conditions are met, the surgeon is
protected even if the patient resists treatment. Support for this
interpretation of section 45 is obtained from editions of the Digest
published after the Draft Code, which state that section 67 of the
Draft Code, which is now section 45 of the Criminal Code, is based
on article 205 of the Digest.’ It was understood that where the
patient was capable of giving consent, the surgeon must consult
0 Dickson J., speaking for a majority of the Supreme Court in the Morgen-
taler case (supra, note 3), acknowledged that “[s]ection 45 may be available
as an answer to a charge arising out of a surgical operation performed
on an unconscious patient … ” (emphasis added). Toward the end of the
proceedings in the Supreme Court, material dealing with the purpose of s.
45 which had been taken from the Preliminary Study on Law and the Con-
trol of Life was presented orally to the Court by respondent’s counsel and
later submitted in written form. Appellant’s counsel subsequently asked the
Court to receive a brief prepared by Prof. Cyril C. Means, Jr of New York
Law School which counsel stated would show, contrary to the material
submitted by the respondent, that s. 45 was on historical grounds applicable
to operations, including abortion, where consent is given. In this regard,
note 82 in Dickens, The Morgentaler Case: Criminal Process and Abortion Law
(1976) 14 Osgoode Hall LJ. 229, 244 is incomplete and may therefore be
misleading.
7 The illustrations to art. 205 of the Digest involve threats to life or limb.
S. 49 of Reg. 729 under The Public Hospitals Act of Ontario, R.S.O. 1970, c.
378, provides that consent to a surgical operation is not necessary “where
the surgeon believes that delay caused by obtaining
the consent would
endanger the life or a limb or vital organ of the patient….
8 Stephen, A Digest of the Criminal Law (Crimes and Punishments), 3rd
ed. (1883), 141, n. 2; 4th ed. (1887), 148, n. 2. The fourth was the last edition
prepared by the author. In the fifth edition (1894) the editors corrected what
had become a citation error in the first part of note 2, at p. 164. In fact, the
first part of note 2 simply refers the reader to the comment in note 1,
which deals with what is art. 204 in the first four editions and is renumbered
art. 225 in the fifth. The reference in the second part of note 2 to s. 67 of
the Draft Code was added in the editions published after the Draft Code,
and deals only with what is art. 205 in the first four editions and is renum-
bered art. 226 in the fifth. If
this latter reference had been intended to
apply to s. 204, it would have been added to note 1. With respect, the inter-
pretation by Laskin C.J. in his dissenting judgment in Morgentaler, supra,
note 3, 643, that “Stephen’s Digest of the Criminal Law (5th ed. 1894) at p.
164 shows that s. 67 was deemed by him to apply both to consensual and non-
consensual surgery”, is clearly incorrect.
19811
COMMENTS – COMMENTAIRES
1053
with him, and persistence in treatment in the face of the patient’s
refusal would render the surgeon liable to criminal responsibility.
III. The wide protection afforded surgical operations
The basic policy of self-determination, qualified by the right
to operate to preserve life or limb, in certain circumstances, is
partially revealed in the articles of the Digest discussed above. But
surgery is treated as a special case, and it is this that provides an
important clue to the purview of section 45 of the Criminal Code.
Article 206 provides that:
Every one has a right to consent to the infliction upon himself of bodily
harm not amounting to a maim. A maim is bodily harm whereby a man
is deprived of the use of any member of his body or of any sense
which he can use in fighting, or by the loss of which he is generally and
permanently weakened, but a bodily injury is not a maim merely because
it is a disfigurement.
In an illustration which concludes with an obvious understate-
ment, Stephen explains that “it is a maim to strike out a front tooth
(because at one time it was an essential part of a common soldier’s
drill to bite cartridges). It is not a maim to cut off a man’s nose.
Castration is a maim.” In a footnote he states: “[t]he positive part
of this article is proved thus: Injuries short of maims are not
criminal at common law unless they are assaults, but an assault
is inconsistent with consent.” In R. v. Donovan,9 where a man had
caned a girl for the purpose of sexual gratification, the English
Court of Criminal Appeal thought that the first statement of article
206 needed considerable qualification, and held that the girl’s
consent was not necessarily a defence, even though the injury to
her did not amount to a maim. The facts of this case would have
disclosed no crime to Stephen. Indeed, the informing principle of
his concern regarding the legality of consent to injuries other than
those likely to cause death seems to have been the tendency of the
acts in question to lead to breaches of the peace. A note to article
207 indicates that even consent to a maim is permissible, provided
it is not done for any purpose injurious to the public (i.e., to avoid
military service). The articles on surgical operations are not con-
cerned with these niceties. Article 203 states the general rule: “[t]he
consent of a person killed or maimed to the infliction of death or
bodily harm, affects the criminality of such infliction to the extent
defined in Articles 204-209.” And article 207 clearly affirms the
legality of consent to operations, even if the surgery may cause
9 [1934] 2 K.B. 489 (C.C.A.).
1054
McGILL LAW JOURNAL
[Vol. 26
death. The dangers to the public posed by other assaults are not
present in the case of surgical operations.
IV. The meaning of reasonable
The test in paragraph (b) of section 45 of whether it is reason-
able to perform the operation depends on the two criteria stated
therein. To which of the situations in Stephen’s Digest do they
refer? Article 204 of Stephen’s Digest gives the general case where
consent may be obtained. Article 205 deals with circumstances where
the patient is incapable of giving consent. It seems clear that
paragraph (b) of section 45 of the Criminal Code refers to the same
circumstances. Editions of the Digest published after the Draft Code
state that what is now section 45 of the Criminal Code is based on
article 205 of the Digest. Article 204 expressly preserves the duties
of a person performing a surgical operation, and this has been in-
corporated in paragraph (a) of section 45. Since article 204 re-
cognizes surgery with consent as lawful, it is submitted that para-
graph (b) of section 45, in again raising the question of legality,
must be concerned with circumstances where consent cannot be
obtained and where public policy must be consulted direct. That
policy was suggested by Stephen in article 205 of his Digest, and it
is that guidance which was obscurely formulated in paragraph (b)
of section 45. Few would deny that in many cases, where the patient
is incapable of giving consent, it would be reasonable to perform
an operation, despite the patient’s resistance.
Conclusion
Section 45 of the Criminal Code is ultimately derived from an
article of the Digest dealing with circumstances where consent can-
not be obtained. The legality of procedures which would ordinarily
constitute assaults, and which were not protected under articles
204 and 205 of the Digest when the section was drafted, depends
on the other provisions of the Criminal Code. Abortion is dealt with
expressly. From the above, it appears that the policy of self-
determination underlying section 45 does not discriminate among
other operations. The word “benefit” in the section merely reflects
the draftsman’s concern that only those operations performed on
those incapable of giving consent which are done to preserve life
or limb will be free from criminal responsibility. Section 45, which
does not mention consent, is very much concerned with its absence.
This examination of section 45 also reveals an assumption that in
the absence of legislative provisions dealing expressly with specific
19811
COMMENTS – COMMENTAIRES
operations, operations on those capable of giving consent which
meet with the general approval of physicians afford protection from
criminal responsibility. The process of gaining general medical
approval of particular operations is not so clear.
Bernard Starkman*
* Special Adviser, Medical-Legal Policy, Department of Justice, Ottawa. The
opinions expressed in this comment are not necessarily those of the Law
Reform Commission of Canada or the Department of Justice.
