Her Majesty the Queen v. C.O. et al.
[Indexed as: R. v. O. (C.)]
Ontario Reports Ontario Superior Court of Justice Summary Conviction Appeals, McWatt J. July 3, 2020 151 O.R. (3d) 436 | 2020 ONSC 4076
Case Summary
Criminal law — Failure to provide necessaries of life — Elements of the offence — Police discovered four-year-old child in a bedroom whose door handle was held shut by a rope — Mattress smelled of urine and feces was on the floor — Rest of apartment was dirty with rotting food, garbage and mold — Trial judge found no proof by Crown of risk of harm and acquitted parents — Trial judge erred by requiring proof of risk of harm — Child was in necessitous circumstances and was denied a sanitary environment — Convictions entered — Criminal Code, R.S.C. 1985, c. C-46, s. 215(2)(a)(i).
Criminal law — Forcible confinement — Police discovered four-year-old child in a bedroom whose door handle was held shut by a rope — Mattress smelled of urine and feces was on the floor — Rest of apartment was dirty with rotting food, garbage and mold — Trial judge accepted assertions that child was confined to prevent her from accessing household cleaning products and acquitted parents — Trial judge erred by not considering condition of room and state of child in analyzing whether the parenting was appropriate — New trial ordered.
Police executing a search warrant at the respondents' apartment found the respondents' four-year-old child in a bedroom on a mattress smelling of urine. The child was extremely dirty with matted hair and soiled pajamas. Feces was found on the floor and smeared on the walls of the closet. The bedroom door had a rope tied to the door handle to prevent the door from opening. Police observed dirt, rotting food, insects, garbage and mold in the rest of the apartment. The child was removed. A psychological assessment revealed normal cognitive functioning, but weak adaptive functioning and poor socialization. On charges of failing to provide the necessaries of life, the trial judge found that the environment was a marked departure from what a reasonably prudent parent would provide, but also found that the Crown had led no evidence with respect to the risk of harm associated with moderately prolonged exposure to feces, garbage, rotten food and urine. The judge refused to take judicial notice of the fact that the unsanitary environment posed a non-trifling risk of harm. On forcible confinement charges, the judge accepted the respondents' assertions that the child was roped into her room to prevent her from getting into household cleaning products. The respondents were acquitted. The Crown appealed.
Held, the appeal should be allowed.
The trial judge erred in treating protection from harm as an essential element of the offence of failing to provide the necessaries of life. The respondents were charged under s. 215(2)(a)(i) of the Criminal Code, which required the Crown to prove only that person to whom a duty was owed was in destitute or necessitous circumstances. The judge erroneously imported the requirement of actual risk of harm from s. 215(2)(a)(ii). A sanitary environment constituted a necessary of life and the child was clearly in necessitous circumstances. It seemed clear from the judge's reasons that he accepted that the child was living in a potentially harmful environment, but could not determine how harmful without expert evidence. It was not necessary that he do [page437] so to find that the Crown had proved its case. Convictions were entered for both respondents and the charges returned to the trial judge for sentencing.
The trial judge erred in finding that the respondents' use of force to confine their daughter in the existing conditions fell within their lawful authority as parents. While the reasoning behind the confinement was relevant, the judge erred in not considering the condition of the room and the child's state as factors in the analysis of whether it was an acceptable form of parenting. The forcible confinement counts were returned to the Provincial Court for a new trial.
Cases Referred To
- Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4
- R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32
- R. v. J. (S.) (2015), 124 O.R. (3d) 595, 2015 ONCA 97
- R. v. Magoon, [2018] 1 S.C.R. 309, 2018 SCC 14
- R. v. Peterson
- R. v. Popen
- R. v. S. (L.), 2012 ONCA 203
- R. v. W. (R.), 2001 NWTSC 63
- R. v. Brooks (1902), 9 B.C.R. 13
- R. v. Sidney (1912), 21 W.L.R. 853 (Sask. S.C. en banc)
- R. v. Hariczuk, [1999] O.J. No. 1424 (Ont. C.J.)
- R. v. Morris (1981), 61 C.C.C. (2d) 163
- R. v. Pertab (2004), 27 C.R. (6th) 126
Statutes Referred To
APPEAL from acquittals on charges of forcible confinement and failing to provide the necessaries of life.
Cidalia Faria, for Crown. Paul Calarco, for Ms. O'Hara. Gideon McMaster, for Mr. Palmer.
MCWATT J. —
Overview
[1] The respondents were charged with failing to provide the necessaries of life under s. 215(2)(a)(i) and forcible confinement under s. 279(2) of the Criminal Code, R.S.C. 1985, c. C-46. They were acquitted of the charges on October 11, 2019 after a trial before Justice R. Silverstein of the Ontario Court of Justice. The Crown appeals the verdicts on the following grounds:
(i) The trial judge erred in defining the elements of the offence of failing to provide necessaries by requiring the Crown to prove actual risk of harm; (ii) If proof of harm was required, the trial judge erred in not considering psychological harm; [page438] (iii) If proof of harm was required, the trial judge erred in finding he could not take judicial notice that human feces, urine, and rotting garbage posed a risk to human health; and (iv) The trial judge erred in not applying the test for forcible confinement in a parental/child relationship to the facts before him.
[2] The Crown requests that, if the appeal is granted, convictions be entered on the fail to provide necessaries charges and they be sent back to the trial judge for sentencing and the forcible confinement charges be sent back for a new trial.
[3] The Crown has indicated that it has no intention of retrying the forcible confinement charges against the respondents if the appeal is successful.
[4] For the following reasons, the appeal is granted. There shall be a conviction on the fail to provide necessaries charges for each of the respondents and the respondents are to appear before the trial judge for sentencing. A new trial is ordered for the forcible confinement charges against each of the respondents.
Background Facts
[5] The parties accept the trial judge's findings of fact.
[6] On June 13, 2017, the Toronto Police Service executed a search warrant at the respondents' apartment, #1101 at 3950 Lawrence Avenue East in the city of Toronto.
[7] When they entered the apartment, police found dirt on the floors and walls, cigarette butts everywhere, insects crawling on the floors and flying around the rooms, rotting food, garbage and what appeared to be mold growing in the residence.
[8] Police observed the floors throughout the apartment were sticky and caked with dirt. The respondents' bedroom door was found smeared with feces.
[9] The kitchen cupboards were bare, with no edible food inside.
[10] Police found a bedroom with rope tied around its door handle that connected to the bathroom door handle opposite, preventing that bedroom door from opening. Upon entering the bedroom, the officers encountered an overpowering odour of urine and feces.
[11] Inside this bedroom, police found the respondents' four-year-old child on a bare mattress with a single pillow, both smelling heavily of urine. Feces was found on the floor and smeared on the walls of the closet. The child, J.wJ., was extremely dirty, with matted hair and soiled pajama pants.
[12] She was removed from the apartment and taken to SickKids Hospital and to the Children's Aid Society. She had to be bathed prior to being examined. [page439]
[13] On October 4, 2017, Doctor Daniel Fitzgerald, an expert in child psychology, assessed J. in terms of her development and mental status. He found that J.'s cognitive functioning was within the normal range, but her adaptive functioning was considerably weaker, and she had poor socialization. Dr. Fitzgerald testified that this could potentially be due to a lack of stimulation or a lack of interaction with the child. His findings were not challenged.
The Trial Judge's Reasons for Acquittal
[14] On the failure to provide necessaries charge, the trial judge found that the Crown must prove that:
(1) the defendants had a duty to care for J.; (2) that J. was in either destitute or necessitous circumstances; (3) that the defendants failed to provide necessaries of life; and (4) that the failure to provide necessaries demonstrated a marked departure from what a reasonably prudent parent would do.
[15] Both respondents conceded they had a duty to care to J..
[16] The trial judge found that the environment provided to J. was a marked departure from what a reasonably prudent parent would provide their child.
[17] On the remaining two elements of necessitous circumstances and failure to provide necessaries, the trial judge held that the issue came down to whether the defendants' failure to provide a sanitary environment created a risk of harm to their child.
[18] He found that the Crown had led no evidence with respect to what risk of harm is associated with moderately prolonged exposure to feces, garbage, rotten food, and urine. He refused to take judicial notice of the fact that the unsanitary environment posed a non-trifling risk of harm and thus found that the Crown had not proved that the respondents failed to provide the necessaries of life.
[19] With respect to the forcible confinement charge, the trial judge accepted the respondents' assertions that the child was roped into her room to prevent her from getting into household cleaning products. He noted that certain restrictions on liberty in a parent/child relationship are lawful and, therefore, he was not convinced the confinement fell outside the category of the restriction of liberty that parents are lawfully entitled to resort to. [page440]
Analysis
Failure to Provide Necessaries
[20] The trial judge relied on the case of R. v. J. (S.) (2015), 124 O.R. (3d) 595, 2015 ONCA 97, which deals with s. 215(2)(a)(i) of the Criminal Code. The parents of a three-year-old boy were convicted of failing to provide the necessaries of life by denying the child medical attention. The convictions were upheld on appeal.
[21] Originally charged also pursuant to s. 215(2)(a)(ii), the appellants were acquitted at trial on that section of the Code. The trial judge concluded there was insufficient evidence to show the child's life was endangered by the parents' failing to provide the necessaries of life to him, thereby endangering his life.
[22] The appellants were also charged with aggravated assault on the boy, but acquitted on those charges because, other than open wounds on the child's buttocks and shoulder, more scars, wounds and fractures could not be proven to have occurred while the child was living in Canada. When finally taken to hospital, however, the medical evidence supported the fact that the boy was malnourished, anemic, had vitamin C levels consistent with scurvy and needed to be hospitalized.
[23] The trial judge found that the child was in necessitous circumstances within the meaning of s. 215(2)(a)(i) and that the appellants' failure to provide medical attention reflected a marked departure from what a parent should have done in the circumstances.
[24] In her reasons, Peppal J.A. said the following at paras. 49, 50, 59 to 62, and 64:
To meet the requirements of s. 215(2)(a)(i) of the Code in this case, the Crown was required to establish that the appellants had a duty to provide necessaries of life to H.; that they failed to meet that duty; and that H. was in necessitous circumstances. Criminal liability arises where the actions of the appellants constitute a marked departure from what a reasonably prudent parent would do. Lawful excuse may afford a defence.
(a) Necessaries of Life
The scope of the term "necessaries of life" has been considered several times in the case law. As far back as 1902, in R. v. Brooks (1902), 9 B.C.R. 13 (B.C. C.A.), at p. 18, the British Columbia Court of Appeal held that "necessaries of life" meant such necessaries as tended to preserve life. In 1912, in R. v. Sidney (1912), 21 W.L.R. 853 (Sask. S.C. en banc), at p. 857-858, the Saskatchewan Supreme Court confirmed the holding in Brooks, noting that necessaries of life had been held to include "food, clothing, shelter, and medical attendance" and observed that this was not an exhaustive test. Further, necessaries of life are to be determined on a case by case basis. Other cases touching on the ambit of necessaries of life include: R. v. Hariczuk, [1999] O.J. No. 1424 (Ont. C.J.); R. v. Morris (1981), 61 C.C.C. (2d) 163 (Alta. Q.B.); R. v. Pertab (2004), 27 C.R. (6th) 126 (Ont. S.C.J.); and R. v. Popen (1981), 60 C.C.C. (2d) 232 (Ont. C.A.). In this last decision, Martin J.A. wrote, at p. 240: [page441]
We are disposed to think that the words "necessaries of life" in section 197 [now s. 215] may be wide enough to include not only food, shelter, care, and medical attention necessary to sustain life, but also necessary protection of a child from harm.
The first issue turns on whether a failure to provide medical attention is captured by s. 215(2)(a)(i) of the Code.
As mentioned, the appellants concede that medical attention is a necessary of life within the meaning of s. 215(1) of the Code. However, they submit that failure to provide medical attention does not amount to necessitous circumstances and therefore does not fall within s. 215(2)(a)(i) of the Code. They state that necessitous circumstances encompass natural needs such as food, shelter and clothing, not medical attention. Failure to provide medical attention may only constitute an offence if the conduct falls within s. 215(2)(a)(ii) of the Code. That is, the failure to provide medical attention must endanger 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.
The appellants submit that having already concluded that the requirements of s. 215(2)(a)(ii) of the Code had not been met, thus forming the basis of the appellants' acquittal on the other charges, the trial judge erred in finding that s. 215(2)(a)(i) of the Code had any application.
In contrast, the Crown submits that a parental failure to provide medical attention or treatment for a child may attract liability under either s. 215(2)(a)(i) or s. 215(2)(a)(ii) of the Code. Put differently, liability ensues if medical attention was not provided and H. was in destitute or necessitous circumstances within the meaning of subsection (i), or if the appellants' failure to provide medical attention endangered H.'s life or caused or was likely to cause his health to be endangered permanently within the meaning of subsection (ii). . ..
Section 215(2)(a) creates two offences both of which are predicated on a failure to perform the legal duties imposed by s. 215(1)(a) or (b). This case involves s. 215(1)(a) and specifically the duty owed by parents to a child. 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). Section 215(2)(a)(ii) addresses the situation in which the parents' failure to perform their duties under s. 215(1)(a) puts the child at risk by virtue of the consequence of the failure to perform the duty (endangers the life or causes or is likely to cause health to be endangered permanently). A failure to provide medical attention could well generate the risk of harm proscribed by either offence.
(i) Did the trial judge err in finding that the Crown must prove an actual risk of harm?
[25] The relevant section of the Criminal Code sets out the following: [page442]
215(1) Every one is under a legal duty
(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
(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 (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 . . .
[26] The Crown contends that the trial judge incorrectly imported the requirement that it prove an actual risk of harm into s. 215(2)(a)(i) from the distinct s. 215(2)(a)(ii).
[27] I agree.
[28] Subsection (ii) explicitly requires the Crown to prove that the failure of the accused to perform their duties pursuant to s. 215(1)(a) caused a consequence -- endangerment to life or health. (J. (S.), at para. 64).
[29] Subsection (i) only requires the Crown to prove that the person to whom the duty is owed was in destitute or necessitous circumstances. (J. (S.), at para. 64).
[30] The case law includes as necessitous circumstances, a person's need for "food, clothing, shelter, and medical attendance" amongst other things, and "necessaries of life" in s. 197 [now s. 215] may be wide enough to include not only food, shelter, care, and medical attention necessary to sustain life, but also necessary protection of a child from harm. (J. (S.), supra, at para. 50).
[31] Necessaries of life are to be determined on a case-by-case basis. The case law is clear that this is a non-exhaustive list. (R. v. Peterson, at para. 34; R. v. Popen, at para. 20; R. v. J. (S.), supra, at para. 50.) By requiring the Crown to prove that there was a risk of harm to J., the trial judge overemphasized the protection from harm category of the offence.
[32] Rather than treating "protection from harm" as a category of necessaries of life, which may or may not be relevant to a case, the trial judge instead added it as an essential element for the Crown to prove beyond a reasonable doubt in subs. (i). He imposed the additional element when considering whether J. was in [page443] necessitous circumstances. He required the Crown prove a risk of harm. The trial judge also indicated that expert evidence was required by the Crown to prove this additional element.
[33] In spite of this, in his reasons, at para. 43, the trial judge confirmed that "there was no requirement that the Crown prove that J.'s life was endangered or that she suffered any damage or injury as a result of the alleged failure to provide necessaries". But, he then went on at para. 45 of his reasons, to refer to para. 64 of R. v. J. (S.), supra, quoting Peppal J.A. He wrote, "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)." He interpreted "dire" as unambiguous and concluded that the child's circumstances must be "extremely serious before it can be said that they are either necessitous or destitute".
[34] At para. 47 of his reasons, he found that there was no evidence that the filthy conditions J. lived in caused ill health or emotional damage to her so that her circumstances could be found to be "dire".
[35] There is no requirement in s. 215(2)(a)(i) of the Criminal Code that ill health or emotional damage be proved by the Crown.
[36] In J. (S.), the Court of Appeal considered whether a failure to provide medical attention could amount to necessitous circumstances in order to make out an offence under subsection (i) or whether it could only constitute an offence if it endangered life or was likely to cause health to be endangered permanently under subsection (ii).
[37] At para. 64, the court found that failure to provide medical attention could lead to liability under either subsection.
[38] When the Court of Appeal referred to the subsection addressing the situation where the parents' failure to perform their duties put the child at risk of harm because of the child's circumstances (s. 215(2)(a)(i)), the court was explaining the purpose of the two subsections and was not intending to create an additional element to the offence that the Crown had to prove.
[39] Requiring the Crown to prove risk to harm in order to prove a failure to provide necessaries of life pursuant to subsection (i) would make the section somewhat redundant considering the Crown must explicitly prove risk of harm in subsection (ii).
[40] Necessaries of life is a common element between subsections (i) and (ii). Subsection (ii), however, requires the Crown to prove that any failure endangers the life of the person to whom [page444] the duty is owed or is likely to cause the health of that person to be injured permanently.
[41] The Crown was required to prove that the respondents failed to provide necessaries of life and that J. was in destitute or necessitous circumstances and not that these circumstances created a risk of harm. (R. v. J. (S.), supra, at para. 49.)
[42] A sanitary environment has been found to constitute a necessary of life. In R. v. S. (L.), [unreported], sentence appeal dismissed 2012 ONCA 203, two parents were found guilty of failing to provide necessaries of life under s. 215(2)(a)(ii) for locking their two young children, ages two and five, in a feces-covered, unlit room in their basement. While there were additional hazards in S. (L.), such as a bunk bed with no protective railing and a concrete floor, forcing the children to live in these unsanitary conditions was a significant factor in the trial judge's determination that there was a failure to provide necessaries of life.
[43] In R. v. Peterson, supra, at paras. 26-27, 47-48, also a case under s. 215(2)(a)(ii), the lack of suitably sanitary conditions, edible food, and withholding access to a toilet played a role in the court's finding that necessaries were not provided to an elderly relative. Like S. (L.), this case also involved an additional hazard -- a dimly lit stairway without a handrail.
[44] Locking four-year-old J. in a room overnight with feces on the floor and walls, a bare, urine-soaked mattress, and forcing her to reside in an apartment with insects crawling on the sticky, dirty floors, foul smelling garbage in a closet, rotting food and garbage throughout, with bare cupboards constitutes a failure to provide the necessaries of life to this child. The trial judge, himself, found that the conditions created by the respondents in the home was a marked departure from what a reasonably prudent parent would do.
[45] J. was clearly in necessitous circumstances at age four. Quite apart from medical attention, her circumstances prevented her from getting food, a sanitary environment and access to a toilet while in her parents' care. The trial judge recognized that she lived in this environment, but would not conclude, without expert evidence, that the child was necessitous and lacking in the necessaries her parents failed to provide. He erred in these findings.
[46] The fact that J. was physically healthy, but lacked emotional stimulation is a factor the trial judge considered. However, he did not conclude that the lack of stimulation the child experienced was some support that she was not getting the attention she needed along with a safe living environment. He should have considered it. [page445]
[47] The fact that the parents were poor is not a factor in the determination of proof under s. 215(2)(a)(i).
[48] On all the facts the trial judge found, he should have found that the Crown had proven the charges in relation to each of the respondents beyond a reasonable doubt.
(ii) If proof of harm was required, did the trial judge err in not considering psychological harm?
[49] Having concluded that the trial judge erred in requiring the Crown to prove a risk of harm with respect to the elements of J.'s necessitous circumstances and the parents' failure to provide necessaries, it is not necessary to deal with this ground of the appeal except to say that there was evidence at the trial, which I have already set out, that a lack of socialization and stimulation had affected J.'s psychological makeup.
[50] The trial judge failed to consider Dr. Fitzgerald's evidence that, in his opinion, there was potential for harm to J., generally, from the state of the apartment. He also did not consider the doctor's' evidence about the lack of stimulation in J.'s environment and the evidence of her later improvement in language skills from June 13 to October 4, 2017. He did not consider the evidence of Victor Palmer about J.'s improved conduct while she lived with him afterwards in terms of a psychological risk or harm. He should have considered this evidence in his determination of whether her parents were providing her with "necessary protection of a child from harm" pursuant to s. 215(2)(a)(i).
(iii) Did the trial judge err in finding he could not take judicial notice of risk of harm?
[51] The trial judge found that he could not take judicial notice of a risk of harm. Yet, he did take judicial notice that J. lived in a potentially harmful situation. At para. 60 of his reasons, he wrote that "any reasonably well-educated person would know that feces carry bacteria and that bacteria cause disease".
[52] He was correct to make that finding. That finding also satisfies the requirements in subsection (i) and the essential element of failing to provide necessaries.
[53] A court may properly take judicial notice of facts that are either:
(1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. [page446] (R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32, at para. 48.)
[54] The trial judge was able to, and properly did, take judicial notice that unsanitary conditions, including the presence of feces, urine, insects, and rotting garbage, created a risk of harm to a four-yearold child, especially over a prolonged period, such as the 11 days he accepted the respondents' apartment was in these unsanitary conditions.
[55] However, he also stated during the Crown's submissions that "the risk of disease posed by exposure to old feces requires expert evidence". On a directed verdict motion, however, he said the contrary -- that expert evidence was unnecessary as "common sense tells us that feces is dangerous" but now we need to "delve into the degree of harm posed".
[56] In addition, during the submissions of Ms. Murphy, the trial judge paraphrased the defence position by saying "it's understood that feces pose some risk of some harm, but you can't have a sufficiently in-depth understanding of the degree of risk of harm without expert evidence".
[57] It seems clear, from his reasons, that the trial judge accepted that J. was living in a potentially harmful environment. But he could not determine how harmful without expert evidence. It was not necessary that he do so in order to find that the Crown had proved its case pursuant to subsection (i).
(iv) Did the trial judge err in finding the respondents were lawfully entitled to confine J. in the manner they did?
[58] The trial judge found that the respondents were 'lawfully entitled' to confine J. at night in her bedroom in order to keep her from getting into cleaning products that could be harmful. He also accepted that J. was "regularly" roped into her room when her parents went to bed and that Ms. O'Hara released the child in the mornings. She had no access to a toilet and there was human waste on her floors and walls. Mr. Palmer's evidence was that it was done for J.'s protection.
[59] The Supreme Court of Canada dealt with the forcible confinement of children in R. v. Magoon, [2018] 1 S.C.R. 309, 2018 SCC 14, at paras. 68-69:
. . . there are lawful justifications for confining a child in the parent-child context that do not exist in other contexts. But acknowledging, as we do, that parents are lawfully entitled to restrict the "liberty" of their children in accordance with the best interests of the child, this authority is not without limit. If a parent engages in abusive or harmful conduct toward his or her child that surpasses any acceptable form of parenting, whether or not physical violence is inflicted, the lawfulness of his or her authority to confine the child ceases. In those circumstances, the lawful authority is transformed into unlawful authority because it represents the exploitation of authority for an improper purpose. This case does not fall within s. 43 of the Criminal Code whereby a parent "is justified in using force by way of correction toward a ... child . . . who is under his care, if the force does not exceed what is reasonable under the circumstances".
[60] At para. 39 of his decision to acquit the respondents, the trial judge concluded that he was not convinced the confinement fell outside the category of the restriction of liberty that parents are lawfully entitled to resort to. In so finding, he did not apply the test for forcible confinement to the facts he found in the trial.
[61] To discipline a child by restricting her ability to move about freely (physically or psychologically), contrary to the child's wishes, which exceeds the outer bounds of punishment that a parent or guardian could lawfully administer, constitutes unlawful confinement. (Magoon, ibid.).
[62] Four-year-old J. was confined. The question the trial judge had to turn his mind to was whether locking her in the room for the night, without access to a toilet and given the conditions of that room, surpassed any acceptable form of parenting.
[63] At para. 37 of his reasons, the trial judge focused on the respondents' explanation as to why they confined J. in the room. He accepted it was to prevent her from getting into household cleaning products. There was no further consideration of the fact that the respondents had left accessible cleaning products in the bathroom and had not put them out of their daughter's reach but confined her instead.
[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.
[65] The Northwest Territories Supreme Court in R. v. W. (R.), [2001] N.W.T.J. No. 87, 2001 NWTSC 63 highlighted the importance of context in parent-child forcible confinement cases. In that case, the accused was charged with forcible confinement and failing to provide necessaries after confining a four-year-old child in a bedroom while he left the apartment. The child was left alone for at least half an hour. The accused was convicted of forcible confinement but acquitted of failing to provide necessaries.
[66] Justice Schuler, at para. 24, recognized that the limits on the control a parent should have over a child's movements may be difficult to define and that the difficulty will be in drawing the line between what may be poor parenting methods and what is a crime. [page447] At paras. 26 and 30, he considered all the circumstances surrounding the conduct, noting that if the accused had locked his child in the bedroom and fell asleep or went to a neighbour's for cigarettes for a few minutes, it would not likely be considered criminal. While finding the accused's absence from the apartment for half an hour did not make the confinement criminal, she acknowledged that there may be cases where these factors are significant and may result in a different decision.
[67] In W. (R.), the child was confined for half an hour and there were no allegations of an unsanitary environment or other degrading conditions as in this case. The most serious factor in that case was the accused's absence from the apartment.
[68] The context in the present case is much more egregious and push the confinement over the line from inappropriate parenting to unlawful confinement. The trial judge erred in not considering them.
[69] Chief Justice McLachlin in Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4, set out at para. 67, "where reasonable corrective force slips into harmful, degrading or abusive conduct, the criminal law remains ready to respond". The respondents' use of force to confine their daughter at night, in the conditions that existed, to correct any unwanted behavior, falls outside the lawful authority of parents to confine their children. The trial judge erred by finding that it did not.
Disposition
[70] The appeal is allowed and convictions entered on the failing to provide necessaries counts for each respondent. The charges shall be sent back to the trial judge for sentencing.
[71] The appeal is allowed on the forcible confinement counts for each of the respondents. They shall be sent back to the Provincial Court for a new trial.
[72] All charges are adjourned to Scarborough Provincial Court room 407 at 10:00 a.m. on September 8, 2020 TBST.
Appeal allowed.
