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.

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