WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 20220204 Docket: C69144 & C69145

Doherty, Trotter and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

C.O. and N. P. Appellants

Counsel: Paul Calarco, for the appellant C.O. Gideon McMaster, for the appellant N.P. Jennifer Trehearne, for the respondent

Heard: June 4, 2021 by video conference

On appeal from the order of Justice Faye E. McWatt of the Superior Court of Justice, dated July 3, 2020, and reported at 2020 ONSC 4076, allowing an appeal from the acquittals entered on October 11, 2019, by Justice R. Silverstein of the Ontario Court of Justice.

Doherty J.A.:

I. Overview

[1] The appellants, C.O. and N.P., are common-law partners. J. is their daughter. She was four years old at the time of the relevant events.

[2] In June 2017, the police executed a search warrant on the appellants’ apartment in Toronto. The search warrant was unrelated to the offences which are the subject of this appeal. The apartment was appallingly filthy and J.’s personal hygiene was equally bad. The police took J. and turned her over to the child welfare authorities.

[3] The appellants were charged with the failure to provide J. with the necessaries of life contrary to s. 215(2)(a)(i), and with forcibly confining J. contrary to s. 279(2) of the Criminal Code, R.S.C., 1985, c. C-46. On the failure to provide necessaries charge, the Crown alleged the appellants’ failure to attend to J.’s personal hygiene, coupled with the very unsanitary conditions in the apartment, put J.’s health and safety at risk, and demonstrated a marked departure from the conduct of a reasonably prudent parent. On the unlawful confinement charge, the Crown alleged the appellants effectively locked J. in the filthy bedroom at night. The Crown maintained, that in doing so, the appellants went well beyond the “lawful authority” defence in s. 279(2) of the Criminal Code.

[4] The Crown proceeded summarily. The trial judge acquitted the appellants on both counts.

[5] The Crown appealed the acquittals to the Superior Court. The Summary Conviction Appeal Court Judge (the “SCAJ”) allowed the appeals and quashed the acquittals of both C.O. and N.P. She entered convictions against both on the necessaries of life charge and ordered a new trial on the unlawful confinement charge. [1]

[6] The appellants applied for, and obtained, leave to appeal to this court from the judgment of the SCAJ. They seek an order restoring the acquittals.

II. The Facts

[7] When the police entered the appellants’ apartment they found partially eaten food throughout the apartment and cigarettes and garbage all over the living room floor. Some of the closets were full of bags containing garbage. The apartment reeked of urine and feces. There were flies everywhere and the walls were covered with fly feces.

[8] J.’s bedroom was particularly dirty. Her pillow and her bed smelled of urine. There was food on the mattress and insects buzzing around the food. The police found urine and feces on J.’s bedroom floor and a pile of old feces in her closet. J.’s pants were wet with urine and covered in grime. She was so dirty she had to be bathed before she could be medically examined. One of the officers testified that it was “impossible to breathe” in J.’s bedroom because the stench was so overpowering.

[9] The evidence did not show exactly how long J. had been living in the conditions observed by the police when they executed the search warrant. The trial judge did, however, accept the evidence that the conditions in the apartment, 11 days before the warrant was executed, were much the same as the conditions at the time the warrant was executed. There was also some evidence the appellants and J. had lived in very unsanitary conditions at another residence, about two or three years earlier.

[10] A psychologist who prepared a report for the Children’s Aid Society about four months after J.’s apprehension described J.’s cognitive functioning and motor skills as within the average range. J. showed lower levels of self-regulation and adaptive functioning as well as poor socialization. Her hyperactivity, impulsivity, and distractibility suggested she was at risk to develop an attention deficit disorder.

[11] It is unclear whether the psychologist was aware of the extremely unsanitary conditions in J.’s home. In any event, he was not asked to offer any opinion as to what effect, if any, those conditions had on J.’s psychological status.

[12] J.’s great-grandfather described J. as a bubbly, energetic and happy child before her apprehension by the authorities. He had been in the appellants’ apartment about four months before the police executed the search warrant. He described the apartment as “untidy”. He also indicated that whenever he saw J. she seemed clean and well dressed.

[13] J.’s great-grandfather assumed custody of J. sometime after she was apprehended by the child welfare authorities. He took steps to improve her socialization and her interpersonal skills. She was diagnosed with ADHD after she started to live with her great-grandfather.

[14] When the police executed the warrant they found J.’s bedroom door closed. The doorknob on J.’s bedroom was attached by a rope to the doorknob on the bathroom across the hall. The rope prevented J. from opening her door from the inside. J’s inability to open her bedroom door when the rope was in place led to the unlawful confinement charge.

[15] Neither appellant testified but both gave statements to the police that were admitted at trial. They explained that J.’s door was tied shut during the evening because she had a tendency to leave her bedroom and get into things in the apartment, including laundry detergent and other dangerous materials. Sometimes, J. would scatter the material about her bedroom, but sometimes she would put it in her mouth. The appellants told the police they had taken J. to the Poison Control Centre more than once.

[16] According to the appellants, if J. needed to go to the bathroom during the night she would call out and one of the appellants would come from their bedroom and take her to the bathroom. As the condition of J.’s bedroom demonstrates, there were times when she urinated and defecated in her bedroom. She may not have called out to her parents, or she may have called out and the appellants either did not hear J., or chose to ignore her.

[17] In their statements to the police, the appellants explained that J. was a very active and somewhat destructive child with a tendency to get into things, some of which were dangerous. She would also smear her own feces on the wall of her bedroom. The appellants insisted they repeatedly tried to clean up the mess J. made.

[18] Although both appellants tended to understate the extremely unsanitary conditions in the apartment, and to fixate on J.’s conduct when explaining those conditions, both ultimately acknowledged in their statements that they were responsible for letting matters get so out of hand.

[19] There was no evidence that J. was malnourished, ill, or had been physically abused. There was also no evidence J. was ever locked in her bedroom when her parents were not in the apartment.

[20] The appellants were extremely poor. They had real difficulty making ends meet and keeping food on the table.

III. The Reasons of the Trial Judge

(i) The unlawful confinement charge

[21] As indicated above, the unlawful confinement charge was based on the confinement of J. in her bedroom during the evenings. The trial judge accepted that the appellants confined J. in her bedroom. He recognized that the confinement of a child by a parent was justified if the confinement was “in accordance with the best interests of the child”: R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R. 309, at para. 68. The best interests of the child can include health and safety concerns.

[22] The trial judge also acknowledged that the confinement of a child by a parent for whatever purpose could not be justified if the conduct “surpasses any acceptable form of parenting” and reflects the exploitation of authority for an improper purpose: Magoon, at para. 68.

[23] The trial judge, at para. 37, accepted the explanation offered by the appellants for confining J. in her bedroom at night. He acquitted on the unlawful confinement charge stating, at para. 39:

I am not convinced beyond a reasonable doubt that this confinement falls outside the category of the restriction of liberty that parents are lawfully entitled to resort to in accordance with the best interests of their child.

(ii) The failure to provide necessaries charge

[24] The failure to provide necessaries charge arose out of the state of J.’s personal hygiene and the extremely unsanitary conditions in the apartment. It was common ground that the appellants owed a legal duty under s. 215(1)(a) of the Criminal Code to provide J. with the necessaries of life. The Crown alleged the appellants’ failure to attend to J.’s personal hygiene needs, and to maintain even minimally sanitary conditions in the apartment, constituted a failure to provide the necessaries of life, leaving J. in “destitute or necessitous circumstances”. The Crown further maintained that leaving four-year-old J. in a filthy room over many days demonstrated a marked departure from what a reasonable parent would do.

[25] The trial judge held, that to establish the offence under s. 215(2)(a)(i), the Crown had to prove that J.’s personal hygiene and the extremely unsanitary conditions in which she lived posed a risk of harm to J. The trial judge noted the Crown had led no evidence that J. was either harmed by the unsanitary living conditions or that those conditions created a risk of harm to J. The trial judge declined the Crown’s invitation to take judicial notice that living in the extremely unsanitary conditions in the apartment posed a risk to J.’s health. The trial judge said, at para. 63:

Although I personally strongly suspect that the unsanitary environment created by the defendants posed a non-trifling risk of harm to [J.], for the reasons set out above, I refuse to take judicial notice of that fact. It should also be noted that whether a judge takes notice of adjudicative facts is discretionary. [citation omitted]. Expert evidence on these questions was readily available to the Crown in this prosecution. Any public health professional could have addressed these issues.

[26] The trial judge held that the failure to prove a risk of harm to J. necessitated the acquittal of the appellants on the failure to provide necessaries charge.

IV. The Reasons of the SCAJ

(i) The unlawful confinement charge

[27] The SCAJ concluded the trial judge failed to consider the conditions of J.’s confinement when determining whether the confinement was a lawful restriction of J.’s liberty. She held the appellants’ explanation that they had confined J. to protect her, even if true, was not determinative on the unlawful confinement charge. She said, at para. 64:

While the reason behind confining J. was relevant, the trial judge erred in not considering the condition of the room and the state of J. as factors in the analysis of whether this was an acceptable form of parenting. By simply accepting that the respondents were lawfully entitled to confine J. to prevent her from getting into cleaning supplies ignores the context in which she was confined.

[28] The SCAJ quashed the acquittals on the unlawful confinement charge and ordered a new trial.

(ii) The failure to provide necessaries charge

[29] The SCAJ found that the trial judge made three errors in relation to the failure to provide necessaries charge. First, the trial judge erred in holding the Crown had to prove a risk of harm to J. as an essential element of a charge under s. 215(2)(a)(i): Reasons, at para. 26. Second, if proof of some risk of harm was required, the trial judge erred in failing to consider the risk of psychological harm to J.: Reasons, at paras. 49-50. Third, the trial judge erred in holding he needed evidence quantifying the degree of risk to J. posed by the extremely unsanitary environment in which she was living: Reasons, at paras. 56-57. The SCAJ concluded that even if, contrary to her conclusion, the Crown was required to prove the conditions posed a risk of harm to the child, the trial judge’s finding that the conditions were potentially harmful to J., was enough to establish a risk of harm to J. and justify a conviction under s. 215(2)(a)(i).

[30] The SCAJ quashed the acquittals and entered convictions on the failure to provide necessaries charge.

V. The Grounds of Appeal

Ground #1: Did the SCAJ err in law in setting aside the acquittals on the unlawful confinement charge?

[31] The appellants submit that the SCAJ ignored the trial judge’s finding that the appellants locked J. in her bedroom at night to prevent her from getting into the dangerous cleaning products kept in other parts of the apartment. Counsel submits that it was open to the trial judge to accept the appellants’ explanation, and to find, based on that explanation, that the appellants restricted J.’s liberty to protect her health and safety. The appellants therefore acted within the “lawful authority” defence in s. 279(2).

[32] Counsel further contends that the SCAJ made findings of fact that were unsupported by the evidence and used those findings to support her conclusion that J. was unlawfully confined. Counsel points to the following as unsupportable findings of fact made by the SCAJ:

• J. had no access to the toilet at night;
• J. was confined without access to food; and
• J. was confined for disciplinary purposes.

[33] There is merit to the appellants’ claim that the SCAJ went beyond her limited authority to review findings of fact and made factual findings that were unsupported by the evidence. I need not, however, wrestle those submissions to the ground.

[34] The appeal, as it relates to the unlawful confinement convictions, can be resolved by addressing the argument that once the trial judge accepted the appellants’ evidence that they had confined J. to protect her health and safety, the confinement was lawful and it was unnecessary to consider the conditions of the confinement.

[35] The “lawful authority” defence at s. 279(2) in cases involving parents and their children recognizes that parents are entitled, if not obligated, by virtue of their parental duties and responsibilities to confine their children in the best interests of the children. The “lawful authority” defence however extends only to conduct which is a reasonable exercise of parental authority done in furtherance of parental duties and responsibilities. Parental conduct that is abusive, harmful to the child, degrading or otherwise beyond the bounds of acceptable parenting cannot shelter under the “lawful authority” defence: Magoon, at paras. 64-68; R. v. Bottineau, 2006 O.J. No. 1864 (Ont. S.C.), at para. 121, aff’d 2011 ONCA 194, 269 C.C.C. (3d) 227, at paras. 101-103, leave to appeal refused, [2011] S.C.C.A. No. 455.

[36] It flows from the focus on the reasonableness of the parental exercise of authority that the “lawful authority” defence in s. 279(2) as applied in the parent/child situation must address not only the reason behind the confinement but also the factual context in which the confinement occurs. The court must consider the purpose, nature, and extent of the confinement in determining whether that confinement was a lawful exercise of parental authority over the child: R. v. Kematch, 2010 MBCA 18, 252 C.C.C. (3d) 349, at para. 104.

[37] The parents’ reason for imposing the restraint on the child’s liberty will obviously be a key consideration. It is not however, the only relevant consideration. Other factors such as the location, manner, and duration of the confinement will also be potentially relevant, as no doubt will other considerations.

[38] I agree with the SCAJ that the conditions of the room in which the appellants confined J. was relevant to whether the confinement was lawful. J.’s room was the dirtiest room in a very dirty apartment. There is an obvious difference when measuring the legitimacy of the exercise of parental authority, between confining a young child at night in a “normal” bedroom in which the child routinely sleeps and confining that same child in that same room when the room has become more akin to a garbage can or a toilet than a bedroom.

[39] A trier of fact could well conclude, even if the appellants acted out of legitimate concern for J.’s safety, that locking her in a filthy, foul-smelling room, replete with human feces, decaying foods, and countless flies, was harmful, degrading and well beyond the bounds of acceptable parenting. The appellants’ failure to attend to J.’s personal hygiene while she was locked in her room only added to the degrading nature of the confinement.

[40] I would dismiss the appeal on the unlawful confinement charge.

Ground #2: Did the SCAJ err in quashing the acquittals on the failure to provide necessaries charge?

(a) Is risk of harm an element of the offence created by s. 215(2)(a)(i)?

[41] The trial judge and the SCAJ differed as to whether the Crown had to prove a risk of harm to J. to establish an offence under s. 215(2)(a)(i). For the reasons that follow, I agree with the trial judge – risk of harm is an element of the offence. Indeed, on a close analysis of the elements of the offence in s. 215(2)(a)(i), it is plain that risk of harm as a consequence of the parents’ dereliction of duty is woven throughout the conduct and fault requirements of that offence.

[42] Section 215 is found in the part of the Criminal Code headed “Duties Tending to Preservation of Life”. Among the duties identified in s. 215 is the obligation on a parent to provide the necessaries of life to a child: Criminal Code, s. 215(1)(a). The duty placed on parents – to provide the necessaries of life to their children – is intended to protect children under the charge of their parents. It requires parents to protect children from the harm to their health and safety associated with the failure to provide the necessaries of life to children. Clearly, the duty puts a positive obligation on parents to act to protect their children from harm. The duty is reinforced by criminal sanctions for the failure to perform the duty in some circumstances. As I will explain, protection of children from harm in the context of the duty created by s. 215(1)(a) must include protection of children from the risk of harm associated with the failure to provide necessaries: see R. v. S.J., 2015 ONCA 97, 124 O.R. (3d) 595, paras. 64-65, leave to appeal refused, [2015] S.C.C.A. No. 146.

[43] Section 215(2) creates two offences. Subsection (i), the charge under which the appellants were prosecuted, makes it an offence for a parent, who owes a duty to provide the necessaries of life to a child under 16, to fail to perform that duty, if the child is in “destitute or necessitous circumstances”.

[44] Section 215(2)(a)(ii) is not directly in play on this appeal. It is, however, closely related to the offence created under subsection (i). An understanding of the elements of the offence under (ii) is important to a proper reading of the offence created in (i). Just as with subsection (i), the offence under subsection (ii) requires proof of the duty to provide the necessaries of life and proof of the failure to perform that duty. Subsection (ii) goes on, however, to require the Crown to prove one of three consequences flowing from the failure to provide necessaries. The Crown must prove:

• the failure to perform the duty endangered the life of the child;
• the failure to perform the duty caused permanent endangerment to the health of the child; or
• the failure to perform the duty was likely to cause permanent endangerment to the health of the child.

[45] As is evident from a reading of s. 215(2), the conduct forbidden by the two offences created by that section differs in one way. Under subsection (i), the Crown must prove the child was in “destitute or necessitous circumstances” when the parent failed to provide a necessary of life. Under the offence created by subsection (ii), the Crown must prove that the failure to provide the necessaries of life led to one of the three consequences to the child described in subsection (ii).

[46] Although both offences are punishable by the same penalty, the consequences forbidden by subsection (ii) make it the more serious of the two offences. It is also the most commonly charged of the two offences.

[47] I turn next to a more detailed consideration of the essential elements of the offence created by s. 215(2)(a)(i). I will begin with the three elements of the conduct component (the actus reus) and then turn to the fault component (the mens rea) of the offence.

[48] The first element, the duty on the appellants to provide necessaries of life to J., is acknowledged.

[49] The second element of the conduct component requires proof of a failure to provide the “necessaries of life”. That phrase is not defined in the Criminal Code. It is probably impossible to provide an exhaustive list of the things that could constitute “the necessaries of life”. The meaning and scope of the phrase is informed by the purpose of the statutory duty created and depends, to some extent, on the specific circumstances. “Necessaries of life” capture those things which are integral to the health and safety of the child. Some specifics, like food, are self- evidently “necessaries of life”. Other things, like protection of children from physical harm, are also necessaries of life, but their meaning is situation specific. A necessary is something which, if not provided by the parent, will result in harm to the child’s health or safety. Protection of a child from harm is itself a necessary of life: R. v. Popen (1981), 60 C.C.C. (2d) 232 (Ont. C.A.), at p. 240; R. v. Peterson (2005), 201 C.C.C. (3d) 220 (Ont. C.A.), at para. 34, leave to appeal refused, [2005] S.C.C.A. No. 539; S.J., at paras. 50-51.

[50] Defining the phrase “necessaries of life” by reference to those things necessary to protect a child from harm to the child’s health or safety must include protection from risk of that harm if the section’s protective purpose is to be served. A reading of the phrase “necessaries of life” that triggered the obligation to provide necessaries only after harm had occurred to the child, would neuter much of the protective purpose of the duty created by s. 215(1)(a). On this view, a parent’s duty to protect the child from harm would arise only after the parent’s failure to act had caused harm to the child. The protection would come too late for the child.

[51] The duty to protect, which underlies the duty to provide the necessaries of life, does not demand that a parent protect a child from risk of all harms, no matter how minor or speculative. The harm in question must be reasonably foreseeable in the circumstances. One cannot meaningfully talk of a duty to protect from a harm in the absence of any reasonable basis to conclude there is at least a risk of that harm. The harm must also relate to the child’s ongoing health and safety, and not merely the child’s comfort or wellbeing. The duty imposed by s. 215(1)(a) is not to be the ideal parent. If the foreseeable harm to the child is minor and transitory, a failure to protect against that harm will not constitute a failure to provide the necessaries of life.

[52] The third element of the conduct component of s. 215(2)(a)(i) requires that the Crown demonstrate that the child was in “destitute or necessitous circumstances” when the parent failed to provide protection from harm. The words “destitute or necessitous” must mean more than a child who has not been provided with the necessaries of life. Otherwise, the requirement that the child be in “destitute or necessitous circumstances” would add nothing. The offence would consist solely of failing to provide the necessaries of life. On the language of s. 215, a parent’s failure to provide the necessaries of life, standing alone, is clearly not a crime.

[53] There is relatively little authority on the meaning of the phrase “destitute or necessitous circumstances”: see S.J., at para. 56. Both words refer to the child’s condition when the parent fails in the duty to provide the necessaries of life. Both words refer to a child who is in need of the necessary that was not provided by the parent. The child’s need is assessed by the impact of the failure to provide that necessary on the child’s health and safety. If the failure to provide the alleged necessary harms the child’s health or safety, or puts the child’s health or safety at risk, it can be said the child is in need of protection from that harm, and therefore in “destitute or necessitous circumstances”: see S.J., at para. 64.

[54] I accept there is an overlap in subsection (i) between the definition of “necessaries of life” and the condition of being “in destitute or necessitous circumstances”. This overlap makes it somewhat difficult to parse out the separate elements of the conduct prohibited by subsection (i). However, given that neither offence in s. 215(2) makes it a crime to fail to provide the necessaries of life without more, the duty of the parent to provide the necessaries of life must be addressed separately from the further requirement that the child be in “destitute or necessitous circumstances”.

[55] Even though the two elements must be considered separately, I would think that, in most cases, a child who is not provided with a necessary of life will be in necessitous circumstances. There may, however, be situations in which a parent has failed to provide a necessary, but that failure has not resulted in the child being harmed or facing the risk of harm. For example, a parent may fail to provide a child with food over several days. However, the child may be old enough, and have sufficient resources and independence, to attend to her own food needs. In those circumstances, while the parent has failed to provide a necessary of life, the child is not harmed or at risk of harm as a consequence of that failure. Consequently, the child is not in “destitute or necessitous circumstances”. [2]

[56] It is not clear to me how the SCAJ defined “necessitous circumstances”. Parts of her reasons (paras. 41-45) suggest that the SCAJ moved directly from a determination that J. had not been provided with the necessaries of life to a further finding that she was in necessitous circumstances. As outlined above, this approach effectively creates the offence of failing to provide the necessaries of life.

[57] I am also satisfied that the SCAJ misinterpreted this court’s judgment in S.J. At para. 64, Pepall J.A. said:

Section 215(2)(a)(i) addresses the situation in which the parents’ failure to perform their duties under s. 215(1)(a) puts the child to whom the duty is owed at risk of harm because of the child’s dire circumstances (destitute or necessitous).

[58] The SCAJ described the above passage as referable to “the purpose” of the offence creating provisions in s. 215(2). With respect, in this part of her reasons, Pepall J.A. was identifying the elements of the two offences and differentiating between the elements required by each offence. Her description of “necessitous circumstances”, as referable to a child who was “at risk of harm”, was a description of the essential element of the offence under subsection (i), which differentiated that offence from the offence under subsection (ii). The SCAJ was obliged to accept and apply the interpretation of the elements of the offence created by subsection (i), provided by Pepall J.A.

[59] The SCAJ also rejected the submission that risk of harm was implicit in the requirement of “necessitous circumstances” because, in her view, that interpretation would make s. 215(2)(a)(i) “somewhat redundant”: Reasons, at para. 39. The SCAJ viewed the requirement that the Crown prove risk of harm to the child under subsection (i) as being very similar to the requirement in subsection (ii) that the Crown prove one of the three consequences identified in that provision.

[60] I cannot agree. The offence created by subsection (ii) speaks to specific identified consequences to the child. Those consequences are all potentially different from, and more serious than, the risk to the child’s health or safety required to show “necessitous circumstances”. I see no difficulty distinguishing between the two offences.

[61] The SCAJ also rejected the trial judge’s interpretation of “necessitous circumstances”, in part, because she read the trial judge as requiring that the Crown prove the circumstances were “extremely serious” before the child could be said to be in “necessitous circumstances”: Reasons, at paras. 32-35. With respect, the SCAJ misread the trial judge’s reasons. He rejected an interpretation of serious harm in favour of one that would require the Crown to prove some risk of harm: Reasons, at paras. 49-55. The SCAJ’s misreading of the trial judge’s reasons may explain why the SCAJ saw the trial judge’s interpretation as creating a significant overlap or redundancy in the two offences created by s. 215(2).

[62] In addition to the conduct component (actus reus) of the offence, the Crown is also required to prove a fault component (mens rea). The Supreme Court of Canada has fashioned a constitutionally-compliant level of objective conduct-based fault premised on a comparison, using the “marked departure” metric, between the accused’s conduct and the conduct of a reasonably prudent parent.

[63] The approach to fault finding under s. 215(2)(a) is set out by Lamer C.J. in R. v. Naglik, [1993] 3 S.C.R. 122, at p. 143. That case involved a charge under s. 215(2)(a)(ii). The Chief Justice described the fault component in these terms:

Section 215(2)(a)(ii) punishes a marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanent endangerment to health, of the child.

[64] Adapting the language of Lamer C.J. to the offence created by s. 215(2)(a)(i), the fault component consists of conduct which shows a marked departure from the conduct of a reasonably prudent parent in circumstances in which it was objectively foreseeable the child was in “necessitous circumstances”. That is, circumstances in which the child’s health or safety were at risk and the child was in need of protection. The requirement that the Crown prove, as part of the harm element, that it was reasonably foreseeable to a prudent parent that the child was in need of protection, dictates that there must be some foreseeable risk of harm. Foreseeable risk of harm is, therefore, integral to the fault requirement for the offences created by s. 215(2)(a).

[65] In summary, risk of harm to the child’s health or safety informs both the scope of the duty to provide the necessaries of life in a given circumstance, and the child’s need for those necessaries. Furthermore, the objective fault requirement inevitably leads to a risk assessment on the way to determining whether the accused conduct constituted a marked departure from the conduct of a reasonably prudent parent in the same circumstances.

(b) Did the trial judge err in refusing to take judicial notice of the risk posed to J.’s health and safety?

[66] The Crown chose not to lead any evidence, expert or otherwise, about the risk posed to J.’s health and safety by her living conditions. Instead, the Crown asked the judge to take judicial notice that the conditions posed a risk to J.’s health and safety. The trial judge was prepared to take judicial notice that bacteria from human waste caused disease. The trial judge was not, however, prepared to go any further. Specifically, he was not prepared to quantify the risk of disease or take judicial notice that the risk of harm to J., as a result of the conditions in the apartment, was “beyond de minimis”: Reasons, para. 58.

[67] The trial judge referred to the leading authorities on judicial notice. He correctly pointed out that taking judicial notice was ultimately an exercise in the discretion of the trial judge. He also observed that trial judges should be less inclined to take judicial notice of adjudicative facts at the centre of the dispute. The nature of the risk, if any, posed to J.’s health and safety by her living conditions was at the very heart of the factual dispute in this trial.

[68] I share the trial judge’s surprise that the Crown did not lead expert evidence about specific health threats faced by J. as a consequence of her living conditions. I also acknowledge this court owes deference to the trial judge’s conclusion that he would not resort to judicial notice. The trial judge’s decision to not take judicial notice is not, however, beyond appellate review.

[69] With respect, I think the trial judge took an unreasonably narrow view of the application of judicial notice in this case. He did so by focusing individually on factors relevant to J.’s living conditions. The question was not whether he could take judicial notice that the presence of feces of a certain age posed a risk to J.’s health, the question was whether the totality of the conditions described posed a risk. The trial judge’s focus on individual items referenced in the description of J.’s living conditions led him to fail to consider whether he could take judicial notice of a risk to J.’s health posed by the overall conditions.

[70] Second, the trial judge considered whether to take judicial notice in the abstract, rather than by contextualizing that question, having regard to certain unchallenged facts. There were at least three features of the evidence that the trial judge should have specifically factored into his determination of the extent to which he could take judicial notice of the risk to J.’s health posed by her living conditions.

[71] First, and I think most importantly, J. was four years old. The trial judge should have taken judicial notice that a young child, like J., is much more susceptible to bacteria-borne diseases than is an adult, not only for physiological reasons, but because a four-year-old child is ill-equipped, emotionally and intellectually, to take any steps to reduce the risks posed by those conditions.

[72] Second, J. was not exposed to the unsanitary conditions momentarily or intermittently. J. lived in these conditions for at least 11 days. Nor does the evidence suggest, that but for the arrival of the police on another matter, anything would have changed. There is no reason to think J. would not have continued to live in these conditions. In considering whether to take judicial notice, the trial judge should have taken into account the length and nature of J.’s exposure to the bacteria-infected conditions.

[73] Third, there was unchallenged evidence that, while J. was in her filthy room, she would smear her hands with feces and rub them on the wall. She also ate in her room. The trial judge should have taken into account, when deciding whether to take judicial notice, the nature of the activities engaged in by J. and whether those activities substantially increased the risks associated with J.’s living conditions.

[74] I am satisfied that had the trial judge considered the cumulative effect of the conditions in J.’s room, and had the trial judge contextualized his judicial notice assessment by reference to J.’s age, the length and nature of her exposure to the conditions, and the activities in which she was engaged while in those conditions, he would inevitably have taken judicial notice that J.’s personal hygiene and her living conditions posed a real risk to her health.

(c) Will psychological harm suffice under s. 225(2)(a)(i)?

[75] It is not necessary to decide this question to resolve this appeal. Nor do I think the question should be decided on this record. There is virtually no evidence that could connect any psychological difficulty J. might have with her living conditions at the relevant time. The psychologist who saw J. did not draw any such connection.

(d) Could the appellants’ poverty provide a defence?

[76] Both appellants suggest that their poverty had something to do with their culpability. The appellants were poor. However, there was no evidence suggesting the appellants’ poverty prevented them from providing the necessaries of life in issue here.

Conclusion

[77] I would dismiss the appeals. I would remit the matter to the trial court for sentencing.

Released: “February 4, 2022 DD”

“Doherty J.A.”

“I agree. G.T. Trotter J.A.”

“I agree Thorburn J.A.”

Footnotes

[1] The SCAJ ordered a new trial on the confinement charge as the Crown did not seek a conviction on that charge. The Crown also indicated that if a conviction was entered on the failure to provide necessaries charge, it would not proceed with the re-trial on the unlawful confinement charge.

[2] Section 215(4)(d) creates an exception to the requirement that the Crown prove the child was necessitous. Even if the child is being provided with necessaries by another person, the parent will still be convicted. While s. 215(4)(d) eliminates many of the situations in which a child would not be necessitous, even though not provided with the necessaries of life by their parents, the existence of the exception does confirm, to some extent, the interpretation of the phrase “destitute or necessitous circumstance” advanced above, otherwise there would be no need for the exception.