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:

     

  • 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.

     

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