214

Definitions

214 In this Part,

abandon or expose includes

(a) a wilful omission to take charge of a child by a person who is under a legal duty to do so, and

(b) dealing with a child in a manner that is likely to leave that child exposed to risk without protection; (abandonner ou exposer)

aircraft[Repealed, 2018, c. 21, s. 13]

child[Repealed, 2002, c. 13, s. 9]

form of marriage includes a ceremony of marriage that is recognized as valid

(a) by the law of the place where it was celebrated, or

(b) by the law of the place where an accused is tried, notwithstanding that it is not recognized as valid by the law of the place where it was celebrated; (formalité de mariage)

guardian includes a person who has in law or in fact the custody or control of a child. (tuteur)

operate[Repealed, 2018, c. 21, s. 13]

vessel[Repealed, 2018, c. 21, s. 13]

Annotations | French

• Section 214
• The term “guardian” in Section 214 can include:
  • (1) The common law partner of a child’s mother: R v Bakker, 2017 ONSC 5924 at para 198; R v Hambleton, 2006 ABQB 876 at para 47
  • (2) The common-law partner of a spouse who has sole legal custody of a foster child: R v Bottineau, 2011 ONCA 194 at paras 2, 13, 131, leave to appeal to SCC refused, [2011] SCCA 455 at para 1
  • (3) A babysitter watching a child: R v Sosa, 2016 ONSC 122 at paras 1,99.
• Factors that Favour Finding that an Accused Was a “Guardian” of a Child
• Some factors that favour finding that an accused was the guardian of a child include:
  • (1) Living in the same house as the child;
  • (2) Recognizing the child as their “own”;
  • (3) Voluntarily caring for the child: R v Bakker, 2017 ONSC 5924 at para 199.
• Section 214 does not exhaustively define the terms “abandon” and “expose.” The ordinary grammatical meanings of these words remain relevant in their interpretation.: R v H (AD), 2013 SCC 28 at paras 43—46.
• “Abandon” has been defined as the following in past decisions:
  • (1) “Cease to support or look after (someone); desert”: R v H (AD), 2013 SCC 28 at para 43.
  • (2) “To give up to another’s control or mercy, or to forsake a person”: R v R (J), [2000] OJ No 6073 (Ont Ct J) at para 25.
  • (3) “To forsake, leave or desert. To leave without one’s presence, help or support”: R v R (J), [2000] OJ No 6073 (Ont Ct J) at para 26.
• “Expose” has been defined as the following in past decisions:
  • (1) “[To] cause someone to be vulnerable or at risk”: R v H (AD), 2013 SCC 28 at para 44.
  • (2) “[To] leave (a child) in the open to die”: R v H (AD), 2013 SCC 28 at para 44.
• Additionally, Court has attributed the following meanings for “abandon”in past decisions:
  • (1) “Abandon” can mean “[a] wilful omission to take charge of the child, or some mode of dealing with it calculated to leave it without proper care” that “indicates such disregard of the welfare of the infant as would shew [show] the parent to be unfit to have it given again into his charge”: Davis, Re, [1909] OJ No 43, (Ont Chambers) at para 14; R v Bokane-Haraszt, 2007 ONCJ 228 at para 16; R v Wong, 2015 MBPC 8 at para 37—38.
  • (2) “Leaving a child to its fate”: R v Reedy (No 2) (1981), 60 CCC (2d) 104, (Ont Dist Ct) at para 6; R v H (AD), 2013 SCC 28 at para 46; R v Wong, 2015 MBPC 8 at para 35.
• Both the statutory definition and the ordinary meanings of of “abandon” and “expose” pursuant to s. 215 show that a person abandoning or exposing a child must be aware of or reckless as to the risk this poses to the child: R v H (AD), 2013 SCC 28 at para 46.
• A person can “abandon” a child even if they only intend to leave the child temporarily unattended. For example, a mother who intended to leave her 15-month-old child unattended in a vehicle in a parking garage in -14oC weather and return to the child after several hours of playing bingo nearby was found to have abandoned the child: R v Holzer (1988), 4 WCB (2d) 314, 1988 CarswellAlta 279 (Alta QB) at paras 4, 11 and 15; R v Whalen, 2001 NWTSC 63 at para 31.
• Definition: “Willful Omission”
• “Willful” in the context of child abandonment or exposure means “deliberate or purposeful conduct with full knowledge of” or “reckless of or indifferent to the consequences of [their] act of omission” or “a callous disregard” or “a complete and utter disregard for the safety of children”: R v Reedy (No 2) (1981), 60 CCC (2d) 104 (Ont Dist Ct) at para 8.
• A person’s “willful omission” to take charge of a child is only abandonment or exposure under section 214’s statutory definitions if the person has a legal duty to take charge of the child: R v H (AD), 2013 SCC 28 at para 68.
• Overview: “Take Charge”
• A parent of a child has a legal duty to “take charge” of the child: R v J (GK), 2006 ABPC 72 at para 21.

215

Duty of persons to provide necessaries

215 (1) Every one is under a legal duty

Annotations

• Section 215(1)
• Section 215(1) establishes a legal duty owed by one group of persons to another based onthe relationship between the person owing the duty and the person to whom the duty is owed. A “duty” is based on an objective, or community, standard and indicated a societal minimum which has been established for conduct. A duty applies to a uniform minimum level of care to be proved: R v ADH, 2013 SCC 28 at paras 66-67; R v Naglik, [1993] 3 SCR 122 at para 18.
• A Failure of a Legal Duty Can Serve as a Predicate Offense
• Failing a legal duty under Section 215 can serve as a predicate offense for several other offenses, including criminal negligence under section 219(1)(b) and manslaughter under section 222(5): R v Tutton, [1989] 1 SCR 1392 at p 1427-1428; R v JF, 2008 SCC 60 at paras 36-37.

(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;

Annotations

• Section 215(1)(a)
• Section 214 defines “guardian.”
• “Foster parent” applies to individuals granted custody of a child apprehended from their birth parents by a provincial agency: R v Wudrich, 2013 SKQB 35 at paras 4, 14.
• “Necessaries of life” refers to things that help sustain or preserve life which if denied will result in harm to health or safety that is more than minor or transitory: R v C.O., 2022 ONCA 103 at paras 49, 51; R v Doering, 2022 ONCA 559 at para 37.
• “Necessaries of Life” Are Case Specific and Not Exhaustively Defined
• “Necessaries of life” are determined on a case-by-case basis. There is no exhaustive list of necessaries, but they can include food, clothing, shelter, medical attendance and protecting a child from harm: R v J(S), 2015 ONCA 97 at para 50, leave to appeal to SCC denied, 2015 CarswellOnt 10363 at para 1; R v Peterson, [2005] OJ No 4450 (Ont CA) at para 34, leave to appeal to SCC refused, [2005] SCCA No 539 at para 1; R v Popen, [1981] OJ No 921 (Ont CA) at p 240.

(b) to provide necessaries of life to their spouse or common-law partner; and

Annotations

• Section 215(1)(b)
• Definition: Necessaries of Life
• For “necessaries of life,” please see Section 215(1)(a).
• Definition: Common Law Partner
• Section 2 defines “common law partner.”

(c) to provide necessaries of life to a person under his charge if that person

(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and

(ii) is unable to provide himself with necessaries of life.

Annotations

• Section 215(1)(c)(i-ii)
• For “necessaries of life,” see Section 215(1)(a).
• Definition: Under His Charge
• A person is under the charge of the accused if the accused had a duty or responsibility to care for them: R v Peterson, [2005] OJ No 4450 (Ont CA) at paras 41-42, leave to appeal to SCC refused, [2005] SCCA No 539.
• Factors Supporting an Whether someone is under the charge of the accused
• A Court will consider several factors when determining if an accused had a responsibility or duty to care for a person. These can include:
  • (1) The relationship between the accused and the person
  • (2) The accused explicitly assuming responsibility over the person, such as by becoming their Power of Attorney or acknowledging their responsibility over the person to others
  • (3) The person’s dependency on the accused for their necessaries of life: R v Peterson, [2005] OJ No 4450 (Ont CA) at paras 40, 43-45, leave to appeal to SCC refused, [2005] SCCA No 539.
• Examples of situations where a person was under another’s charge include:
  • (1) A disabled, elderly parent living with their adult son was recognized as being under the accused son’s charge: R v Peterson, [2005] OJ No 4450 (Ont CA) at paras 3, 45-46, leave to appeal to SCC refused, [2005] SCCA No 539.
  • (2) A person arrested by a police officer being under the officer’s charge: R v Doering, 2022 ONCA 559 at para 37.
• Definition: Mental Disorder
• Section 2 defines “mental disorder.”

Offence

(2) Every person commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse to perform that duty, if

Annotations

• Section 215(a)
• A “lawful excuse” provides the accused a defense against a charge under Section 215(2), even if all elements of the offense are proven. The excuse does not include common law defences, such as duress: R v Doering, 2022 ONCA 559 at para 50; R v Curtis, [1998] OJ No 467 (Ont CA) at para 22; R v Holmes, [1988] 1 SCR 914 at pp 947-948.
• Under the statute’s current language, an accused must only raise a reasonable doubt about the existence of a lawful excuse. Once an accused does that, it is the Crown’s onusto prove beyond a reasonable doubt the absence of a lawful excuse: R v Curtis, [1998] OJ No 467 at paras 20, 25-28; R v Bakker, 2017 ONSC 5924 at para 141.
• Failing to provide the necessaries of life due to financial inability can be a lawful excuse: R v Peterson, [2005] OJ No 4450 (Ont CA) at para 37, leave to appeal to SCC refused, [2005] SCCA No 539; R v Doering, 2022 ONCA 559 at para 50.
• Subjectively believing that a person under one’s charge does not need the necessaries of life may constitute a lawful excuse: R v Doering, 2022 ONCA 559 at para 52-53.
• To be convicted for all offenses under Section 215(2), the accused’s failure to perform a duty imposed by Section 215(1) must be a marked departure from what a reasonably prudent person would have done in the same circumstances: R v Goforth, 2022 SCC 25 at para 27; R v Naglik, [1993] 3 SCR at pp 143-144; R v Beatty, 2008 SCC 5 at para 8.
• The accused can lead evidence that they lacked the capacity to appreciate or avoid the risk they created. However, personal attributes such as their age, experience and education are not relevant when assessing their capacity: R v Creighton, [1993] 3 SCR 3 at p 63-65, 72-74; R v Beatty, 2008 SCC 5 at para 40.

(a) with respect to a duty imposed by paragraph (1)(a) or (b),

(i) the person to whom the duty is owed is in destitute or necessitous circumstances, or

Annotations

• Section 215(a)(i)
• Material Elements of the Offense
• The Crown must prove beyond a reasonable doubt three physical elements (actus reus) to convict an accused of an offense under 215(2)(a)(i):
  • (1) The accused had a duty to provide the necessaries of life to their child under sixteen years of age;
  • (2) The accused failed to provide these necessaries without a lawful excuse; and
  • (3) The child was in destitute or necessitous circumstances: R v C.O., 2022 ONCA 103 at paras 45, 48-49, 52.
• The Crown must also prove two mental elements (mens rea) to convict an accused of an offense under Section 215(2)(a)(i):
  • (1) It was objectively foreseeable to a reasonable person in the circumstances of the accused that their childwas in destitute or necessitous circumstances; and
  • (2) The accused’s conduct was a marked departure from the conduct of a reasonably prudent person in their circumstances: R v C.O., 2022 ONCA 103 at para 64.
• The phrase “destitute or necessitous circumstances” applies to a child is assessed by the impact of the failure to provide on the individual’s health and safety. Where the necessaries of life have been denied, and there is a harm or risk of harm to the health and safety of the child, they are in destitute or necessitous circumstances:: R v C.O., 2022 ONCA 103 at paras 53-55; R v SJ, 2015 ONCA 97 at para 66.
• A person denied the necessaries of life is not in destitute or necessitous circumstances if they avoid harm, or the risk of harm, to their health and safety. For example, if a parent denies a child food but the child can feed themselves and the child is therefore not harmed or at risk of harm. However, in most cases, a child that is no provided with the necessaries of life will be in necessitous circumstances: R v C.O., 2022 ONCA 103 at para 55.
• Section 215(4)(d) establishes the accused may be convicted of failing to provide the necessaries of life even if the child is being provided with necessaries by another person: R v C.O., 2022 ONCA 103 at para 55.

(ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently; or

Annotations

• Section 215(2)(a)(ii)
• Material Elements of the Offense
• The Crown must prove beyond a reasonable doubt three physical elements (actus reus) to convict an accused of an offense under 215(2)(a)(ii):
  • (1) The accused had a duty to provide the necessaries of life to either their spouse, common law partner, or child under sixteen years of age;
  • (2) The accused failed to provide these necessaries without a lawful excuse; and
  • (3) This failure either endangered the life of their spouse, common law partner, or child, caused permanent endangerment to their health, or the failure to perform the duty was likely to cause permanent endangerment to their health; R v C.O., 2022 ONCA 103 at para 44; R v Goforth, 2021 SKCA 20 at para 22, rev’d on other grounds 2022 SCC 25.
• The Crown must also prove two mental elements (mens rea) to convict an accused of an offense under Section 215(2)(a)(ii):
  • (1) It was objectively foreseeable to a reasonable person in the circumstances of the accused that the failure to provide the necessaries of life would lead to a risk of danger to the life or risk of permanent endangerment of the health of a spouse, common law partner, or child under the age of sixteen years; and
  • (2) The accused’s conduct was a marked departure from the conduct of a reasonably prudent parent, foster parent, guardian or head of family in the circumstances: R v Goforth, 2022 SCC 25 at para 30; R v Naglik, [1993] 3 SCR 122 at pp 143—144.
• The Mental Elements for All Offenses Under Section 215(2) Must Amount to a Marked Departure from the Actions of a Reasonably Prudent Person.
• For a discussion of the mental elements required under Section 215(2), please see Section 215(2)(a)(i).
• Definition: “Endangerment to Life or Health”
• The term “endanger” means to put a person at risk of danger or harm or putting someone in danger of something untoward occuring.: R v Thornton, [1991] OJ No 25 at para 26, aff’d on other grounds [1993] 2 SCR 445; R v Palombi, 2007 ONCA 486 at para 14.
• Endangerment can occur even if even where the risk does not materialize and there is no injury. What is assessed is the risk of danger: R v Stephan, 2021 ABCA 82 at para 69, leave to appeal to SCC refused, 2022 CarswellAlta 1966; 2022 CarswellAlta 1967.
• To prove that the accused’s actions endangered the life of the victim, the Crown must only establish that it was objectively foreseeable that the victim was in need of medical treatment. The Crown does not need to show that the medical treatment would have or could have saved the life of the victim: R v Christopher Marchant and Steven Snively, 2021 ONSC 3901 at para 118; R v Stephan, 2021 ABCA 82 at paras 60, 63, leave to appeal to SCC refused, 2022 CarswellAlta 1966; 2022 CarswellAlta 1967.

(b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently.

Annotations

• Section 215(2)(b)
• Material Elements of the Offense
• The Crown must prove beyond a reasonable doubt three physical elements (actus reus) to convict an accused of an offense under 215(2)(b):
  • (1) The accused was under a legal duty to provide a person under their charge with the necessaries of life;
  • (2) The accused failed to provide these necessaries without a lawful excuse; and
  • (3) This failure either endangered the life of the person under their charge, caused the health of that person to be injured permanently, or was likely to cause the health of that person to be injured permanently: R v Doering, 2022 ONCA 559 at paras 38—39.
• The Crown must also prove two mental elements (mens rea) to convict an accused of an offense under Section 215(2)(b):
  • (1) It was objectively foreseeable to a reasonable person in the circumstances of the accused that the conduct would lead to a risk of danger to the life, or risk of permanent endangerment of health, of the person under their charge; and
  • (2) The accused’s conduct was a marked departure from the conduct of a reasonably prudent person in the circumstances: R v Doering, 2022 ONCA 449 at paras 47—48; R v Dahl, 2022 BCSC 1387 at paras 226-227.
• The Mental Elements for All Offenses Under Section 215(2) Must Amount to a Marked Departure from the Actions of a Reasonably Prudent Person
• For a discussion of the mental elements required under Section 215(2), please see Section 215(2)(a)(i).
• For a definition of “endangerment of life,” please see Section 215(2)(a)(ii).

Punishment

(3) Every one who commits an offence under subsection (2)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

Presumptions

(4) For the purpose of proceedings under this section,

(a) [Repealed, 2000, c. 12, s. 93]

(b) evidence that a person has in any way recognized a child as being his child is, in the absence of any evidence to the contrary, proof that the child is his child;

(c) evidence that a person has failed for a period of one month to make provision for the maintenance of any child of theirs under the age of sixteen years is, in the absence of any evidence to the contrary, proof that the person has failed without lawful excuse to provide necessaries of life for the child; and

(d) the fact that a spouse or common-law partner or child is receiving or has received necessaries of life from another person who is not under a legal duty to provide them is not a defence.

Annotations

• Section 215(4)(d)
• This section prevents a person who fails their legal duty under Sections 215(1)(a) or (b) from defending themselves against by placing responsibility on someone without a legal duty under 215(1): R v S(F), 2004 ONCJ 230 at para 59.

| French

216

Duty of persons undertaking acts dangerous to life

216 Every one who undertakes to administer surgical or medical treatment to another person or to do any other lawful act that may endanger the life of another person is, except in cases of necessity, under a legal duty to have and to use reasonable knowledge, skill and care in so doing.

Annotations | French

• Section 216
• Section 2 defines “every one” and “person.”
• “Surgical or medical treatment” refers to treatments of a physician who is licencsed to practice in that field: R v Mugenzi , 1995 CarswellOnt 4688 (Ont Ct J (Prov Div)) at paras 46—48.
• “Surgical or medical treatment” does not include cutting a person with razors and rubbing them with herbs as part of a spiritualist ceremony: R v Mugenzi, 1995 CarswellOnt 4688 (Ont Ct J (Prov Div)) at paras 4, 46—48.
• Overview: “Any Other Lawful Act that May Endanger Life”
• “Any other lawful act that may endanger life” can include:
  • (1) Acting as a childbirth attendant: R v Sullivan, 1986 31 CCC (3d) 62(BCSC) at para 25, rev’d on other grounds (1988) 31 BCLR (2d) 145 (BCCA), rev’d in part [1991] SCR 489.
  • (2) A knowingly HIV positive person who donated blood to the Red Cross at a time when there was no known treatment for HIV was found by the Supreme Court of Canada to have violated a legal duty under Section 216. The Court did not distinguish whether this duty was owed because donating blood was a “surgical or medical treatment” or “any other lawful act that may endanger life”: R v Thornton, [1993] 2 SCR 445 at p 445.
• Overview: “Reasonable Knowledge, Skill and Care” When Administering a Surgical or Medical Treatment
• “Reasonable knowledge, skill and care” is an objective standard. A person administering a surgical or medical treatment will have their knowledge, skill and care compared against those of a person who has “reasonable knowledge and skill and [is] qualified by proper training to administer such treatment”: R v Rogers, [1968] 4 CCC 278 (BCCA) at para 13, leave to appeal to SCC refused; R v W (DJ), 2009 BCSC 1397 at paras 118—119, rev’d in part on other grounds 2011 BCCA 522, aff’d 2012 SCC 63.
• The same standard of “reasonable knowledge, skill and care” applies to all persons administering the same treatment or medical procedure, whether they are licensed medical practitioners or not: R v Homeberg, [1921] 1 WWR 1061 (Alt SC (App Div)) at p 1067; R v W (DJ), 2009 BCSC 1397 at para 118, rev’d in part on other grounds 2011 BCCA 522, aff’d 2012 SCC 63.
• The recommendations of a College of Physicians and Surgeons can show the “reasonable knowledge, skill and care” a person should use when treating a patient: R v Swanney, 2006 BCSC 1766 at paras 54—57.
• “Reasonable knowledge, skill and care” when administering a surgical or medical treatment is assessed against what was reasonable at the time the treatment was administered. However, later advances in medical standards can help clarify what was reasonable in the past: R v Omstead, [1999] OJ No 570 (Ont Ct J (Gen Div)) at para 15.
• Midwives, obstetricians, general practitioners and persons without formal medical training attending to a childbirth must use the “reasonable knowledge, skill and care” of a competent childbirth attendant: R v Sullivan, 1986 31 CCC (3d) 62, 1986 CanLII 1188 (BCSC) at paras 27—28, rev’d on other grounds (1988) 31 BCLR (2d) 145 (BCCA), rev’d in part [1991] SCR 489.
• Evidence from midwives with substantial experience delivering children or a trained obstetrician can show the “reasonable knowledge, skill and care” of a competent childbirth attendant: R v Sullivan, 1986 31 CCC (3d) 62, 1986 CanLII 1188 (BCSC) at paras 29—30, rev’d on other grounds (1988) 31 BCLR (2d) 145 (BCCA), rev’d in part [1991] SCR 489.
• A physician who removes a life-supporting respirator at the request of a mentally competent patient will not fail a legal duty under Section 216: Carter v Canada (Attorney General), 2012 BCSC 886 at paras 213—217, rev’d in part on other grounds 2013 BCCA 435, rev’d 2015 SCC 5.
• A failure under Section 216 can lead to charges that penalize a failure to uphold a legal duty, including common nuisance under Section 180: R v Thornton, [1993] 2 SCR 445 at p 445.

217

Duty of persons undertaking acts

217 Every one who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life.

Annotations | French

• Section 217
• Section 2 defines “every one” and “person.”
• Section 217 establishes a legal duty between persons based on the undertaking of an act. An undertaking is a promise that a person intends to fulfill which contains something another person can reasonably rely on. It is more than just saying words that show you intend to do something. The legal duty arises from the undertaking as opposed to the relationship between the parties: R v Browne, 1997 33 OR (3d) 775 (Ont CA) at paras 14—16, leave to appeal to SCC refused.
• An individual that promised, “I’ll take you to the hospital,” to a friend he found overdosing on drugs was found not to have undertaken to help their friend for the purposes of Section 217: R v Browne, 1997 33 OR (3d) 775 (Ont CA) at para 18, leave to appeal to SCC refused.
• A physician who removes a life-supporting respirator at the request of a mentally competent patient will not fail a legal duty under Section 217: Nancy B v Hotel-Dieu de Quebec , 1992 CanLII 8511 (QCCS) at paras 11-13, 52—61, 71; Carter v Canada (Attorney General), 2012 BCSC 886 at paras 213-216, rev’d in part on other grounds 2013 BCCA 435, rev’d 2015 SCC 5.
• A Failure to Uphold a Legal Duty Under Section 217 Can Lead to Charges Under Certain Offenses
• Failing a legal duty under Section 217 is not an offense. However, this failure can lead to charges that penalize a failure to uphold a legal duty, including criminal negligence where it meets the elements of that offence: R v Canadian Liquid Air Ltd (1972), 20 CRNS 208, 1972 CarswellBC 4 (BCSC) at para 10; R v Kendall, 2022 BCSC 998 at paras 50—51.

217.1

Duty of persons directing work

217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.

Annotations | French

• Section 217.1
• Parliament created Section 217.1 to increase corporate liability for criminal offenses: R v Hoyeck, 2019 NSSC 7 at para 65; R v Metron Construction Corporation, 2012 ONCJ 506 at 12—15, rev’d in part on other grounds 2013 ONCA 541.
• Section 217.1 imposes a legal duty on “every one who is responsible for any work to take the necessary steps to ensure the safety of others”: R v Hoyeck, 2019 NSSC 7 at para 66; R c Scrocca, 2010 QCCQ 8218 at para 107.
• “Any work” can include:
  • (1) Repair work on balconies, including installing wooden forms and pouring fresh concrete: R v Vadim Kazenelson, 2015 ONSC 3639 at para 2, aff’d 2018 ONCA 77.
  • (2) Driving a semi-trailer: R v Fummerton, 2017 ONSC 3866 at paras 7, 11, 64.
• Section 2 defines “every one,” “person” and “bodily harm.”
• “Authority to Direct How Another Person Does Work”
• A construction company’s Project Manager had the authority to direct the company’s workers at the time of a job-site accident given some of the following factors:
  • (1) The workers reported to the Site Supervisor, and the Site Supervisor reported to the Project Manager;
  • (2) The Project Manager routinely exercised authority over both the Site Supervisor and workers, who in turn recognized the Manager’s authority; and
  • (3) The Project Manager was present at the location of the accident when it occurred: R v Vadim Kazenelson, 2015 ONSC 3639 at paras 9, 107, 115, aff’d 2018 ONCA 77.
• A Failure to Uphold a Legal Duty Under Section 217.1 Can Lead to Charges Under Certain Offenses
• Failing a legal duty under Section 217.1 is not an offense: R c Scrocca, 2010 QCCQ 8218 at para 107.
• However, this failure can lead to charges under offenses that penalize a failure to uphold a legal duty, including criminal negligence where the elements of that offence are met: R v Metron Construction Corporation, 2013 ONCA 541 at para 26; R v Vadim Kanzenelson, 2015 ONSC 3639 at paras 109—110, 130, aff’d 2018 ONCA 77; R v Stave Lake Quarries Inc, 2016 BCPC 377 at para 40.

218

Abandoning child

218 Every one who unlawfully abandons or exposes a child who is under the age of ten years, so that its life is or is likely to be endangered or its health is or is likely to be permanently injured,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

Annotations | French

• Section 218
• Material Elements of the Offense
• The Crown must prove two of the following three physical elements (actus reus) beyond a reasonable doubt tomake out an offense under Section 218:
  • (1) The accused abandoned or exposed a child under ten years; and
  • (2) The life of the child was endangered or was likely to be endangered; or
  • (3) The health of the child was permanently injured or was likely to be permanently injured: R v H (AD), 2009 SKQB 261 at para 12, aff’d on other grounds 2011 SKCA 6, aff’d 2014 SCC 28; R v Young, 2019 CanLII 15209 (NL PC) at paras 4—5.
• The Crown must also prove two of the following four mental elements (mens rea) to make out an offense under Section 218:
  • (1) The accused intentionally abandoned or exposed the child; or
  • (2) The accused was reckless as to whether they abandoned or exposed the child; and
  • (3) The accused knew, was reckless to,or was willfully blind to the fact that the abandonment or exposure endangered, or was likely to endanger, the life of the child; or
  • (4) The accused knew, was reckless to, or was willfully blind to the fact that the abandonment or exposure permanently injured, or was likely to permanently injure, the health of the child: R v H (AD), 2013 SCC 28 at paras 16—17.
• A mother that left her child locked in a closed car on a very hot day but did not know how hot it was, took precautions to keep the child cool, and only planned to leave the child for a short time was found not to have been aware of the risk her actions created for her child: R v Huang, 2015 ONCJ 46 at paras 9-12.
• Section 218 is a General Intent Offence
• Child abandonment or exposure is a general intent offence. However, it is not clear if a defence of self-induced intoxication under Section 33.1(3) could be raised by a person charged: R v H (AD), 2013 SCC 28 at para 16.
• Section 2 defines “every one.”
• An accused convicted of abandoning or exposing a child does not need to be convicted of a predicate offense, such as a failure to provide necessaries of life to the child under Section 215: R v H (AD), 2013 SCC 28 at para 60.
• Section 214 defines “abandon” and “expose.”
• Section 30 of the Interpretation Act, RSC, 1985, c I-21 explains how age is calculated.
• Overview: “Life is or is Likely to be Endangered”
• Endangerment must constitute a real risk to a child and not a mere potentiality or possibility. For example, a momentary exposure of a child to cold weather will not amount to a danger to their life: R v Holzer (1988), 4 WCB (2d) 314(Alta QB) at paras 20—22; R v Wong, 2015 MBPC 8 at para 61.
• A 15-month-old child’s life was endangered when their mother left them in a parked vehicle in a parking garage in -14oC weather in a snowsuit for several hours with the intent to return. Endangerment was found despite expert evidence indicating that the child was not at risk of dying during the mother’s absence but was at risk of hypothermia and frostbite: R v Holzer (1988), 4 WCB (2d) 314(Alta QB) at paras 3—4, 11, 18—22.
• Some examples of a child’s life not being endangered include:
  • (1) Leaving a “bright” six year old child alone in a well-kept home without any immediate dangers for 90 minutes: R v Wong, 2015 MBPC 8 at paras 1, 6, 26—27, 63.
  • (2) Leaving two children to play with other children in a courtyard between apartment buildings during the afternoon while a babysitter watches them from inside their house, despite evidence that the area was dangerous at night: R v M (L), [2000] OJ No 5284, (Ont Ct J) at paras 3—8, 50—53, 55.
• Where a charge against an accused under Section 218 that specifically states they “endangered the life of a child” requires that the Crown prove the child’s life was actually endangered, and not that it was “likely endangered”: R v R (J), [2000] OJ No 6073 (Ont Ct J) at paras 1 and 48; R v EM, 2017 NSPC 35 at paras 14—15.
• Sentencing Considerations for Section 218
• Actual endangerment of a child will make an offense under Section 218 more serious for the purposes of sentencing than likely endangerment: R v Nguyen, [2001] OJ No 647 (Ont Ct J) at para 62.
• The principal sentencing objective for an offense under Section 218 is deterrence and denunciation, with rehabilitation second: R v G.K.J., 2006 ABPC 72 (CanLII) at para 54.
• Where parents are convicted of abandonment in a situation where their child died, the consequences of that death can be tragic for the parents. However, the present sorrow of the accused is not a guiding principle in determining the punishment of the crime: R v Motuz, [1965] 2 CCC 162 (MBCA) at paras 8—9; R c C(J), 2011 QCCQ 10961 at paras 62—63.

219

Criminal negligence

219 (1) Every one is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

Definition of duty

(2) For the purposes of this section, duty means a duty imposed by law.

Annotations

• Part VIII

220

Causing death by criminal negligence

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

Annotations

• Part VIII

221

Causing bodily harm by criminal negligence

221 Every person who by criminal negligence causes bodily harm to another person is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or

(b) an offence punishable on summary conviction.

Annotations

• Part VIII

222

Constitutionality

• The mens rea–objective foreseeability test is constitutional under section 7 of the Charter.: R v Creighton, [1993] 3 SCR 3 at 4.
• Section 222(5)(c) has been found constitutional pursuant to section 7 of the Charter. : R c Charbonneau, 2016 QCCA 1354 at paras 122, 139, 164.

Homicide

222 (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

Kinds of homicide

(2) Homicide is culpable or not culpable.

Non culpable homicide

(3) Homicide that is not culpable is not an offence.

Culpable homicide

(4) Culpable homicide is murder or manslaughter or infanticide.

Idem

(5) A person commits culpable homicide when he causes the death of a human being,

(a) by means of an unlawful act;

Annotations

• Section 222(5)(a)
• Unlawful act manslaughter is committed when a person commits an unlawful act that causes death to another individual. An unlawful act is any offence under federal or provincial statute, except for absolute liability offences that is not unconstitutional: R v Desousa, [1992] 2 SCR 944 at p 956-957. Absolute liability offences are offences that do not require a mental element. In these offences, an accused will be convicted if it’s merely proven they committed the prohibited act: R v Sault Ste. Marie, [1978] 2 SCR 1299 at 13101
• The unlawful or underlying act is known as the “predicate” offence. There is no independent requirement that the predicate offence be objectively dangerous. Further, there is no requirement that the accused had a subjective intention or knowledge that their conduct would cause non-trivial bodily harm;. R v Javanmardi, 2019 SCC 54 at para 30. R v Laberge, 1995 ABCA 196 at paras 13-14.
• Essential Elements
• Actus Reus
• The actus reus of unlawful act manslaughter is satisfied by proof beyond a reasonable doubt that the accused committed an unlawful act that caused the death of a person: R v Javanmardi, 2019 SCC 54 at para 30.
• Mens Rea
• The mens rea of unlawful act manslaughter has 2 components:
  • (1) The objective foreseeability of the risk of bodily harm that is neither trivial nor transitory, and
  • (2)The mens rea for the predicate offence: R v Javanmardi, 2019 SCC 54 at para 31; R v Creighton, [1993] 3 SCR 3 at 45; R v DeSousa, 1992 2 SCR 944 at 964.
• In determining the mens rea required for the predicate offence, the actions or omissions of an accused will be judged against what is expected of a “reasonable person” on the basis of the nature and circumstances of the activity: R v Creighton, [1993] 3 SCR 3 at 73-74.
• If the predicate offence is one of strict liability, or involves carelessness, the mens rea for that offence is a marked departure from the standard expected of a reasonable person in the circumstances: R v Creighton, [1993] 3 SCR 3 at p 59; R v Javanmardi, 2019 SCC 54 at 31.

(b) by criminal negligence;

Annotations

• Section 222(5)(b)
• Manslaughter based on criminal negligence is indistinguishable from criminal negligence causing death and the same test applies to both charges: R v Aleksev, 2016 ONSC 1834 at para 57; R v Plein, 2018 ONCA 748, at para 26; Criminal Code, RSC 1985, c C-46, s 220.
• Elements of the Offence
• The actus reus of criminal negligence causing death requires that the accused undertook an act — or omitted to do anything that it was his or her legal duty to do — and that the act or omission caused someone's death. (para 19)
• The mens rea is where an accused shows wanton or reckless disregard for the lives or safety of others. (para 20) . The fault element is assessed by measuring the degree to which the accused's conduct departed from that of a reasonable person in the circumstances. It is an elevated standard which requires that the accused's conduct constitute both a marked and substantial departure from the conduct of a reasonable person in the accused's circumstances. (paras 20-21): R v HC, 2020 ONCJ 418 at paras 174-183 and 279, 287-290.

(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or

Annotations

• Section 222(5)(c)
• Actus Reus
• The actus reus requires is a threat conveyed to the victim, a fear of violence created in the victim by the offender's conduct or by deception that leads the victim to personally commit the fatal act: R c Charbonneau, 2016 QCCA 1354 at 68; R v Hall, 2015 ONSC 3276 at 28; R v Gure, 2019 ONSC 4951 at para 234
• Threat is defined as communication that looked at objectively and in its context and having regard to its intended audience (the person to whom the words, gesture, or conduct are aimed) would intimidate, coerce, or frighten that person: R v Hall, 2015 ONSC 3276 at para 15, citing: R v Benjamin, 2010 ONSC 5799 at para 19.
• A threat must contain some unlawfulness or moral culpability; it cannot be benign or a threat to do something lawful: R v Hall, 2015 ONSC 3276 at para 14.
• To prove a “threat”, the Crown must prove beyond a reasonable doubt that the accused did something by words, gesture, or conduct to communicate intention to cause physical harm or death. The Crown must also prove the accused did so with the intention to intimidate, coerce, or frighten: R v Hall, 2015 ONSC 3276 at para 16.
• To prove “fear of violence”, the Crown must prove beyond a reasonable doubt that, (1) the accused did something by words, gesture, or conduct to cause the victim to fear for their safety, (2) the accused did so with the intention of causing the victim to fear for their safety, and (3) the accused caused the victim to subjectively fear for their safety, and that fear was objectively reasonable: R v Hall, 2015 ONSC 3276 at para 18. ; R v Charbonneau, 2016 QCCA 1354 at para 73
• The Crown must also prove the victim did something that caused their own death (factual causation); and, in the case of threats or fear of violence, the Crown must prove that the accused’s threat or fear of violence, caused the victim to cause their own death (legal causation): R v Hall, 2015 ONSC 3276 at paras 19–22; R v Charbonneau, 2016 QCCA 1354 at para 113
• An intervening act may limit the scope of legal causation between an accused’s acts and a victim’s death: R v Maybin, 2012 SCC 24 at para 5.
• Not all unforeseeable or independent intervening acts will break the chain of causation: R v Gure, 2019 ONSC 4951 at paras 242 and 244.
• An act by a third party who is acting in furtherance of a joint activity with the accused will not sever legal causation: R v S.R.(J.), 2008 ONCA 544 at para 32.
• If there are any independent intervening acts, the Crown must prove that the accused’s contribution to the chain of causation is a significant contributing cause in light of the intervening act: R v Hall, 2015 ONSC 3276 at paras 25-27; R v Maybin, 2012 SCC 24 at paras 23, 30; R v Gure, 2019 ONSC 4951 at para 244.
• Mens Rea
• The mens rea requires objective foreseeability that the victim would cause non-trivial bodily harm to themselves in response to reasonably apprehended violence: Charbonneau c R., 2016 QCCA 1354 at para 108 ; R v Gure, ONSC 4951 at para 235.

(d) by wilfully frightening that human being, in the case of a child or sick person.

Exception

(6) Notwithstanding anything in this section, a person does not commit homicide within the meaning of this Act by reason only that he causes the death of a human being by procuring, by false evidence, the conviction and death of that human being by sentence of the law.

| French

223

When child becomes human being

223 (1) A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether or not

(a) it has breathed;

(b) it has an independent circulation; or

(c) the navel string is severed.

Killing child

(2) A person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being.

Annotations

• Part VIII

224

Death that might have been prevented

224 Where a person, by an act or omission, does any thing that results in the death of a human being, he causes the death of that human being notwithstanding that death from that cause might have been prevented by resorting to proper means.

Annotations

• Part VIII

225

Death from treatment of injury

225 Where a person causes to a human being a bodily injury that is of itself of a dangerous nature and from which death results, he causes the death of that human being notwithstanding that the immediate cause of death is proper or improper treatment that is applied in good faith.

Annotations

• Part VIII

226

Acceleration of death

226 Where a person causes to a human being a bodily injury that results in death, he causes the death of that human being notwithstanding that the effect of the bodily injury is only to accelerate his death from a disease or disorder arising from some other cause.

Annotations

• Part VIII

227

Exemption for medical assistance in dying

227 (1) No medical practitioner or nurse practitioner commits culpable homicide if they provide a person with medical assistance in dying in accordance with section 241.2.

Exemption for person aiding practitioner

(2) No person is a party to culpable homicide if they do anything for the purpose of aiding a medical practitioner or nurse practitioner to provide a person with medical assistance in dying in accordance with section 241.2.

Reasonable but mistaken belief

(3) For greater certainty, the exemption set out in subsection (1) or (2) applies even if the person invoking it has a reasonable but mistaken belief about any fact that is an element of the exemption.

Non-application of section 14

(4) Section 14 does not apply with respect to a person who consents to have death inflicted on them by means of medical assistance in dying provided in accordance with section 241.2.

Definitions

(5) In this section, medical assistance in dying, medical practitioner and nurse practitioner have the same meanings as in section 241.1.

Annotations

• Part VIII

228

Killing by influence on the mind

228 No person commits culpable homicide where he causes the death of a human being

(a) by any influence on the mind alone, or

(b) by any disorder or disease resulting from influence on the mind alone,

but this section does not apply where a person causes the death of a child or sick person by wilfully frightening him.

Annotations

• Part VIII

229

Murder

229 Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or

(c) if a person, for an unlawful object, does anything that they know is likely to cause death, and by doing so causes the death of a human being, even if they desire to effect their object without causing death or bodily harm to any human being.

Annotations

• Part VIII

230

230 [Repealed, 2019, c. 25, s. 78]

Annotations

• Part VIII

231

Classification of murder

231 (1) Murder is first degree murder or second degree murder.

Planned and deliberate murder

(2) Murder is first degree murder when it is planned and deliberate.

Contracted murder

(3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another, or is promised by one person to another, as consideration for that other’s causing or assisting in causing the death of anyone or counselling another person to do any act causing or assisting in causing that death.

Murder of peace officer, etc.

(4) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the victim is

(a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff’s officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties;

(b) a warden, deputy warden, instructor, keeper, jailer, guard or other officer or a permanent employee of a prison, acting in the course of his duties; or

(c) a person working in a prison with the permission of the prison authorities and acting in the course of his work therein.

Hijacking, sexual assault or kidnapping

(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:

(a) section 76 (hijacking an aircraft);

(b) section 271 (sexual assault);

(c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm);

(d) section 273 (aggravated sexual assault);

(e) section 279 (kidnapping and forcible confinement); or

(f) section 279.1 (hostage taking).

Marginal note:Criminal harassment

(6) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an offence under section 264 and the person committing that offence intended to cause the person murdered to fear for the safety of the person murdered or the safety of anyone known to the person murdered.

Murder — terrorist activity

(6.01) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an indictable offence under this or any other Act of Parliament if the act or omission constituting the offence also constitutes a terrorist activity.

Murder — criminal organization

(6.1) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when

(a) the death is caused by that person for the benefit of, at the direction of or in association with a criminal organization; or

(b) the death is caused by that person while committing or attempting to commit an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of or in association with a criminal organization.

Intimidation

(6.2) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an offence under section 423.1.

Second degree murder

(7) All murder that is not first degree murder is second degree murder.

Annotations

• Part VIII

232

Murder reduced to manslaughter

232 (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

What is provocation

(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.

Questions of fact

(3) For the purposes of this section, the questions

(a) whether the conduct of the victim amounted to provocation under subsection (2), and

(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,

are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

Death during illegal arrest

(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section.

Annotations

• Part VIII