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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.

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. 205, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.J., 2015 ONCA 97

DATE: 20150211

DOCKET: C53421

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.J. and S.J.

Appellants

Erika Chozik and Sonya Shikhman, for the appellants

Lisa Joyal, for the respondent

Heard: September 24, 2014

On appeal from the conviction entered by Justice Gordon D. Lemon of the Superior Court of Justice on December 1, 2010, and from the sentence imposed on March 14, 2011, with reasons reported at 2010 ONSC 6559.

Pepall J.A.:

A. Overview

[1] This appeal addresses the issue of failing to provide the necessaries of life to a child in necessitous circumstances contrary to s. 215(2)(a)(i) of the Criminal Code, R.S.C., 1985, c. C-46.

[2] The appellant mother and the appellant father were convicted of failing to provide the necessaries of life to their three year old child, H. The trial judge found that H. had been in “necessitous circumstances” within the meaning of s. 215(2)(a)(i) of the Code and that the appellants’ failure to provide medical attention reflected a marked departure from what a reasonable parent would have done in the circumstances. The trial judge sentenced each of the appellants to six months’ imprisonment.

[3] The appellants appeal their convictions and advance four grounds in support of their position.[^1] First, the appellants submit that the trial judge erred in finding that the term “necessitous circumstances” includes a failure to obtain medical attention under s. 215(2)(a)(i) of the Code. Secondly, and in any event, he applied the wrong standard in convicting the appellants in the absence of evidence showing a causal connection between the appellants’ failure to provide necessaries of life and H.’s necessitous circumstances. Thirdly, the appellants submit that the trial judge’s misapprehension of the evidence resulted in a miscarriage of justice. Fourthly, the appellants submit that the trial judge failed to provide adequate reasons.

[4] The appellants also seek leave to appeal their sentences on the basis that they were manifestly unfit and the trial judge made errors in principle.

[5] For the reasons that follow, I would dismiss the conviction appeals, grant leave to appeal the sentences, and dismiss the sentence appeals.

B. Background Facts

[6] H. was born on January 19, 2004. When he was eight months old and his mother was pregnant with her second child, his parents sent him to live with his grandparents in India.

[7] While in India, the appellants asked B.K., a family friend, to visit H. and see how he was. She visited with him once and observed that he looked “kind of slim and weak”.

[8] He was two years and ten months old when he returned to live with his parents in Canada on November 7 or 8, 2006. H. was accompanied on the trip by B.K. During her time with him, B.K. changed H.’s diapers and noticed that his skin was rough and dry. She also noticed that his heels were dry and cracked. Other than his outer wear, she did not remove his clothing from his upper body.

[9] On arrival in Canada, B.K. went with H. to the appellants’ home. The mother gave H. a bath. When she came out of the bathroom, the mother was crying and said that she had made a big mistake allowing H. to go to India.

[10] Dr. Shah was the appellants’ family doctor. She had seen H. before he left for India and had no concerns relating to the appellants’ care for him although her notes indicated that H. suffered from dry skin and, at times, a full body skin rash. The mother took H. to see Dr. Shah on November 15, 2006. Dr. Shah examined H. that day. She did not recollect that H. appeared malnourished. However, out of concern for his low appetite, Dr. Shah ordered a stool test to investigate for parasites. The test was not conducted as the mother failed to provide a stool sample from H. On November 25, B.K. saw H. at a birthday party. He appeared well and did not express any complaints to her.

[11] On December 13, 2006, H. was taken to see Dr. Ubhi. Dr. Ubhi did not testify at trial. His notes described H. as “not eating, lethargic”.

[12] On January 3, 2007, the mother attended Dr. Shah’s office for a pre-natal visit. Her daughter was in attendance but H. was not. At that time, the mother advised Dr. Shah that H. had fallen “last weekend”, “got hurt, shoulders, bums, skin coming out”. She told Dr. Shah that she had been using Polysporin on H. but that it was not helping much. Dr. Shah prescribed Fucidin cream for H. She told the mother to bring H. in for a check-up. The mother did not do so.

[13] On January 16, 2007, the mother attended Dr. Shah’s office with the appellants’ daughter. H. was not in attendance.

[14] On January 27, 2007, H. suffered a seizure and was taken by ambulance to the Hospital for Sick Children in Toronto. There was no evidence of the cause of the seizure. However, there is no dispute that H. needed to be hospitalized.

[15] When he appeared at the hospital, H. was malnourished, anemic, had vitamin C levels consistent with scurvy, three open wounds, and scars all over his body. That same day, H. and his sister were apprehended by the Peel Children’s Aid Society.

[16] Dr. Levin was the child abuse paediatrician on call. On January 28, 2007, he examined H. in the hospital. Dr. Levin was also a member of the Suspected Child Abuse and Neglect Team. He had been called in because of evidence of multiple traumas to H. that looked like child abuse. It was his opinion that H.:

[N]eeded fairly urgent, significant, dedicated, concentrated care. This child required hospital admission to the Paediatric Intensive Care Unit. He required wound care or burn care, as we call it. He required transfusion, antibiotics, multiple disciplinary assessment, behavioural and psychiatric intervention or psychological intervention. He was direly in need of care.

[17] Dr. Levin described injuries and scars to H.’s chest, arms, shoulders, legs, flanks, back, anus, and upper thigh. He had a healed broken bone in his hand and a healed broken fibula. He needed blood transfusions. Dr. Levin could not date when these injuries occurred and could not preclude their occurrence in India.

[18] Additionally, H. had bruising that had occurred more recently but Dr. Levin could not rule out an accidental cause. H. also had open wounds on his shoulder and buttocks that were more recent. It was Dr. Levin’s opinion that these were caused by burns and did not occur as a result of a fall down stairs although members of his team thought these wounds could have “occurred by abrasion or pressure sores”. It was Dr. Levin’s opinion that H. was a “battered child complicated by secondary problems and complicated by co-incidental problems like malaria”.

[19] Dr. Howard Clarke, a plastic surgeon, was asked to treat H.’s wounds while H. was in hospital. Dr. Clarke considered that H.’s injury was “fully consistent with burns” and the possible mechanism was contact with a large flat object like an iron. It could also be by scalding with a hot liquid. He noted, however, that the wounds were already several weeks old and it was difficult to be precise about the exact nature of the cause. He considered the probability that they were pressure sores to be extremely unlikely. Abrasions would require the application of a large amount of force and he had not heard anything to suggest that such force had occurred. Like Dr. Levin, he could not date any of the various scars that appeared on H.’s body.

[20] On January 29, 2007, the father gave a video statement to the police at which time he stated that H. fell down the outside stairs of their home two to three days before Christmas.

[21] The appellant’s third child was born on April 19, 2007 and immediately placed in foster care. After one year of supervised visits with the Peel Children’s Aid Society, H.’s two siblings were returned to the appellants’ care. The Society continues to monitor the family and the two children. The appellants have had no further contact with H. Subsequently, he was made a Crown ward and placed for adoption.

[22] The appellants were each charged with aggravated assault, failing to provide the necessaries of life to H. who was in necessitous circumstances contrary to s. 215(2)(a)(i) of the Code, and failing to provide necessaries of life to H. thereby endangering his life, contrary to s. 215(2)(a)(ii) of the Code. At trial, it was the Crown’s position that H. was abused and in serious need of medical attention. The Crown’s theory was that the appellants failed to obtain medical attention because they were the ones inflicting the wounds.

C. Medical Evidence at Trial

[23] Dr. Shah, Dr. Levin and Dr. Clarke testified at the appellants’ trial. In addition, the defence called Dr. Steve Samuel as an expert in the area of plastic surgery, particularly identification of skin loss and evaluation of its causes. He did not examine H. but reviewed photographs of H. that had been filed as exhibits. It was his opinion that one could not tell the cause or date of H.’s wounds based on the photographs.

[24] While Dr. Samuel did not advance a theory of the cause of the injuries, in cross-examination, he testified that the wounds could have started as scratches. If they became secondarily infected, a full thickness injury could result. In turn, if the wound became infected, it would become red and swollen which would be painful. The skin would then die and peel off. While difficult to estimate, this process could take a matter of weeks. The same process would ensue if the injury occurred as a result of a broken blister.

[25] Dr. Greenwald was called by the defence as an expert in the areas of paediatrics, allergies, and on issues relating to the health and care of young children presenting with allergic reactions and fractures. His expertise included wound care, nutrition, and anemia.

[26] He had not examined H. but had reviewed his chart, the laboratory information, the progress notes, and the photographs entered as exhibits. It was his opinion that H. was malnourished and had iron deficient anemia on a chronic basis. He opined that since the anemia was longstanding, H.’s condition may not have been symptomatic. It was also his opinion that H. suffered from chronic and relapsing eczema and that H.’s skin was consistent with atopic dermatitis.

[27] Dr. Greenwald was unable to place a date on the wounds or fractures. The fractured fourth metacarpal that H. had was neither rare nor symptomatic of child abuse. The broken fibula may or may not have been symptomatic. He did not accept that the medical evidence supported conclusively that H. was either neglected or abused; rather, there were alternative explanations for his condition.

[28] Dr. Berall was called by the defence as an expert in nutrition, malnutrition and its manifestation in, and consequences for, a child. He also had not examined H. but reviewed his chart and the photographs. It was his opinion that malnutrition could explain all or the majority of H.’s presenting signs. He opined that the likely cause of H.’s presentation was protein energy malnutrition. This could explain what appeared to be fractures on the x-rays or the fragility of the bones such that they would break without unusual force. The fact that H. suffered from both diarrhea and a rectal prolapse was consistent with inadequate nutrition. Given H.’s white blood count, Dr. Berall concluded that he came into the hospital with malnutrition and edema. Furthermore, H.’s state of hydration was “not ideal”.

[29] Dr. Berall was of the view that a fall down stairs in December would be consistent with his opinion. Put differently, the fall could have caused skin abrasions that would in turn generate into a chronic wound state due to the fragile condition of H.’s skin. The wounds were being managed appropriately but would not heal.

[30] In reply, the Crown called Dr. Pope as an expert on diseases of the skin in children including atopic dermatitis and eczema. She saw H. on January 30, 2007. She addressed Dr. Greenwald’s opinion. She did not see any active eczema on his body and denied that what she observed resulted from complicated eczema.

[31] Also in reply, the Crown called Dr. Zlotkin as a paediatrician specializing in nutrition, nutrition related issues, and their effects on children. He addressed Dr. Berall’s opinion and disagreed that H. suffered from protein energy malnutrition. In Dr. Zlotkin’s opinion, there was an insufficient reliable history for such a diagnosis and the photographs and laboratory results were not consistent with malnutrition.

D. Trial Judge’s Reasons

[32] The trial judge acquitted the appellants of committing aggravated assault on their son. He was uncertain of the cause of H.’s scars, wounds, and fractures. Other than the open wounds on H.’s buttocks and shoulder, no one could opine that the remaining injuries occurred while H. was in Canada. The trial judge was left with a doubt as to the cause of H.’s condition when he arrived at the hospital and could not find that the appellants had intentionally wounded or disfigured H.

[33] As for liability under s. 215(2)(a)(ii) of the Code, he concluded that there was insufficient evidence to show that H.’s life was endangered and the appellants were therefore acquitted of failing to provide the necessaries of life to their son thereby endangering his life.

[34] Turning to the charges under s. 215(2)(a)(i) of the Code, the trial judge noted that the physicians all agreed that when H. appeared at the hospital on January 27, 2007, he was malnourished, anemic, had vitamin C levels consistent with scurvy, had three open wounds, and had scars all over his body. Furthermore, there was no dispute that H. needed to be hospitalized.

[35] The trial judge stated that Dr. Samuel’s evidence established that the wounds “had to be in a painful and untreated process for weeks”. Dr. Berall was of the opinion that the wounds would not have been healing as one would expect and that when he came to the hospital, H. was suffering from malnutrition and edema and his hydration was “not ideal”. The trial judge stated, at para. 101, that H. was in necessitous circumstances and had been so for several weeks.

[36] He reviewed the various medical appointments. He found that the mother had been asked to provide a stool sample by Dr. Shah but had failed to do so. Furthermore, the mother did not bring H. in to see Dr. Shah even though Dr. Shah asked the mother to do so and even though she herself returned to see Dr. Shah. Dr. Ubhi saw H. and described him as lethargic and as not eating. However, there was no evidence of what, if any, steps were recommended by Dr. Ubhi or that any further medical attention was obtained for H. before he arrived at the Hospital for Sick Children on January 27.

[37] The trial judge concluded his discussion of the mother’s liability by addressing the applicable standard stating, at para. 105, that her “conduct is a marked departure from what a reasonable parent would do for a child in H.’s circumstances”.

[38] Lastly, the trial judge found that the mother had not provided any lawful excuse for failing to get H. medical attention. Accordingly, he concluded that there was no doubt that she was guilty of committing an offence under s. 215(2)(a)(i) of the Code.

[39] He then considered the father’s liability. He concluded that H. had been in necessitous circumstances for about a month. The trial judge noted the father’s evidence that H. had fallen, that H. could not sit, and that the father was required to hold H. while H. ate and watched television. The father told the police officer that he did not take H. to the medical clinic because he could not risk driving H. without putting him into a car seat and that H. was in too much pain to sit. The trial judge concluded that the father was aware of H.’s condition in the month leading up to the January 27 hospital attendance.

[40] The trial judge also found, at para. 109, that the father’s failure to take his son to the hospital was more than a mistake; it was “a marked departure from what a reasonable parent would do in the circumstances”. Like the mother, the father had not provided any lawful excuse for failing to get H. medical attention. The trial judge concluded that there was no doubt that the father was also guilty of committing an offence under s. 215(2)(a)(i).

[41] Accordingly, the trial judge found both appellants guilty of failing to provide the necessaries of life to H. when he was in necessitous circumstances.

E. Trial Judge’s Reasons for Sentences

[42] The Crown sought sentences of three years’ incarceration. The defence sought suspended sentences or, alternatively, four to six months conditional sentences for each of the appellants.

[43] The trial judge identified as aggravating factors the appellants’ breach of trust, the absence of any sensible explanation for their behaviour, and the importance of sending a message that vulnerable children are to be protected by the courts.

[44] He identified as mitigating factors the absence of any criminal record, the appellants’ co-operation with the Peel Children’s Aid Society which had implicitly approved of the parenting of their other two children, and the support received from neighbours and friends of the appellants.

[45] The trial judge considered the applicable sentencing principles. Given that H. was under the age of 18 years, the trial judge recognized that he should give primary consideration to the sentencing objectives of denunciation and deterrence. He acknowledged that conditional sentences could be considered but concluded that they would be inappropriate:

I am not satisfied; however, that a sentence to be served in the community would be consistent with the principles of sentencing that I have just quoted. Further and after much consideration, I am unable to fashion conditions that would be appropriate to provide an appropriately punitive aspect to such a sentence.

He sentenced each of the appellants to a period of imprisonment of six months followed by two years of probation.

F. Legislation

[46] Section 215 of the Code addresses the duty of persons to provide necessaries of life. It states:

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 16 years;

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

(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.

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

(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; or

(b) with respect to a duty imposed by (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.

G. Jurisprudence

(i) History and Purpose of Offence

[47] The offence of failing to provide necessaries of life first appeared in 1892 in the first Criminal Code. English 19th century legislation dealing with the protection of servants, apprentices, and inmates of penal and other institutions was the likely origin of s. 215: R. v. Peterson (2005), 2005 37972 (ON CA), 34 C.R. (6th) 120, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 539 (Ont. C.A.), at para. 65 (Borins J.A. dissenting on sentence). Although the language has changed somewhat since 1892, the core of the legislation remains the same: where a person is in the charge of another, and unable to withdraw himself from that charge and to provide himself with the necessaries of life, the person having charge has a duty to provide necessaries of life: Peterson, at para. 65. Certain relationships and legal duties are described in s. 215. As noted in R. v. A.D.H., 2013 SCC 28, [2013] S.C.R. 269, at para. 67, the essence of the s. 215 offence is the imposition of legal duties arising out of defined relationships.[^2]

[48] Where such a duty arises, a uniform minimum level of care is prescribed. In R. v. Naglik, 1993 64 (SCC), [1993] 3 S.C.R. 122, at pp. 141-142, Lamer C.J.C. considered the standard of care reflected in s. 215:

The accused’s conduct in a particular circumstance is to be determined on an objective, or community, standard. The concept of a duty indicates a societal minimum which has been established for conduct: as in the law of civil negligence, a duty would be meaningless if every individual defined its content for him or herself according to his or her subjective beliefs and priorities. Therefore, the conduct of the accused should be measured against an objective, societal standard to give effect to the concept of “duty” employed by Parliament.

Section 215 is aimed at establishing a uniform minimum level of care to be provided for those to whom it applies, and this can only be achieved if those under the duty are held to a societal, rather than a personal, standard of conduct. While the section does not purport to prescribe parenting or care-giving techniques, it does serve to set the floor for the provision of necessaries, at the level indicated by, for example, the circumstances described in subs. (2)(a)(ii). The effects of a negligent failure to perform the duty will be as serious as an intentional refusal to perform the duty. [Emphasis in original.]

(ii) Requirements of s. 215(2)(a)(i) of the Code

[49] 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.[^3]

(a) Necessaries of Life

[50] 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), 1902 90 (BC SC), 9 B.C.R. 13, 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, 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), 1981 1216 (AB QB), 61 C.C.C. (2d) 163 (Alta. Q.B.); R. v. Pertab (2004), 2004 47791 (ON SC), 27 C.R. (6th) 126 (Ont S.C.); and R. v. Popen (1981), 1981 3345 (ON CA), 60 C.C.C. (2d) 232 (Ont. C.A.). In this last decision, Martin J.A. wrote, at p. 240:

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.

[51] More recently, in 2005, in Peterson, at para. 34, this court adopted the Popen holding.

[52] The appellants concede that medical attention is a necessary of life within the meaning of s. 215(1) of the Code.

(b) Requirement of a Marked Departure

[53] As mentioned, Naglik described the applicable standard for finding criminal liability under s. 215 of the Code. The Crown must establish beyond a reasonable doubt that the accused’s actions were a “marked departure” from what a reasonably prudent person would do: Naglik, at pp. 141-143, 148 and Peterson, at para. 35.

[54] Section 215 of the Code imposes an objective or community standard of conduct. The duty is not one of perfection. Similarly, mere negligence does not suffice. Rather, the question is whether there has been a “marked departure”. A parent is not required to run to a doctor or hospital whenever illness or the prospect of injury arises: Pertab, at paras. 35-37; R. v. Alexander, 2011 ONSC 980, at para. 61; and R. v. Boone, [2002] O.J. No. 2796, at paras. 27-34.

(c) Defence of Lawful Excuse

[55] As is evident from the language of s. 215(2) of the Code, a lawful excuse provides an accused with a defence and serves to prevent the punishment of the morally innocent: Peterson, at para. 37.[^4]

(d) Necessitous Circumstances

[56] The issues on this appeal turn on the application of s. 215(2)(a)(i) of the Code and the interpretation of necessitous circumstances. As both counsel noted, there is very little case law interpreting this subsection.

[57] Early decisions such as R. v. Wilson (1933), 1933 278 (AB SCAD), 3 W.W.R. 417 and R. v. McDonald, [1942] O.J. No. 319 dealt with the prosecutions of husbands for allegedly leaving their wives in destitute or necessitous circumstances by failing to provide support.

[58] Boone is a more recent example of a case addressing s. 215(2)(a)(i) of the Code. In that case, the court found a father guilty under s. 215(2)(a)(i) of the Code for failure to provide his two year old child with necessaries of life that consisted of the obtaining of appropriate, available medical attention in a timely fashion. The trial judge was uncertain that the child’s life was endangered or that his health was permanently endangered within the meaning of s. 215(2)(a)(ii) of the Code, but was satisfied by reason of his age and serious injuries that he was in necessitous circumstances.

H. Grounds of Appeal

(i) First Issue: Necessitous Circumstances

[59] The first issue turns on whether a failure to provide medical attention is captured by s. 215(2)(a)(i) of the Code.

[60] 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.

[61] 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.

[62] 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).

[63] Statutory interpretation is governed by the approach described in Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87, and adopted by the Supreme Court of Canada in Re Rizzo & Rizzo Shoes Ltd., 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 21:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[64] 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.

[65] The purpose of s. 215 of the Code is aimed at the protection of others. The subsections of s. 215 of the Code have a common object – the imposition of a defined legal duty of care on an individual in charge of another: Naglik, at pp. 141-143 and Peterson, at para. 35. Children under the age of 16, who are the subject matter of s. 215(1)(a) of the Code and owed such a duty of care, exemplify this protective objective.

[66] The terms “destitute” and “necessitous circumstances”, which are found in s. 215(2)(a)(i), are not defined in the Code. ”Necessitous” is defined in Oxford Dictionaries[^5] as “lacking necessaries of life, needy”. As mentioned, in oral argument, the appellants conceded that medical attention is a necessary of life within the meaning of s. 215(1) of the Code. It follows that the failure to provide necessaries of life – in this case medical attention – may amount to necessitous circumstances.

[67] Neither the purpose of s. 215 of the Code read as a whole, nor its language, compels the interpretation advanced by the appellants. There is nothing that would suggest that liability for a failure to provide medical attention should be restricted to, and bound by, the requirements of s. 215(2)(a)(ii) of the Code. Failure to provide medical treatment can lead to criminal liability under either s. 215(2)(a)(i) or s. 215(2)(a)(ii) of the Code; the one does not preclude the other.

(ii) Second Issue: Causal Connection

[68] The appellants complain that including medical attention in the ambit of s. 215(2)(a)(i) of the Code results in criminalizing a failure to obtain treatment of no consequence. They argue that criminal liability for failure to provide necessaries of life follows only where the failure has resulted in permanent danger to the health or life of that person. They submit that there must be a causal connection between the appellant’s failure to provide necessaries of life and the child’s necessitous circumstances and here there was none.

[69] I disagree. Inclusion of medical attention in the ambit of s. 215(2)(a)(i) of the Code does not compel criminality for any failure to provide medical attention. In order for there to be criminal liability, the child must be in necessitous circumstances and the conduct must amount to a “marked departure” from what a reasonably prudent parent would have done in the circumstances: Naglik, at p. 143. This requirement imposes a limitation on actionable criminality. There was no need for the Crown to establish that the appellants’ failure to obtain medical treatment would have made any difference. That is a requirement of s. 215(2)(a)(ii) of the Code.

[70] The appellants were aware of H.’s needs and condition, their failure had persisted over a period of weeks, and their conduct amounted to a marked departure from that of a reasonably prudent parent. This was sufficient to invoke liability under s. 215(2)(a)(i) of the Code. Accordingly, I would not give effect to this ground of appeal.

(iii) Third Issue: Misapprehension of Evidence

[71] Thirdly, the appellants submit that the trial judge’s findings of necessitous circumstances and H.’s required hospitalization rested on a misapprehension of key evidence. The appellants advance seven instances of such misapprehension.

[72] To set aside a conviction on the grounds of misapprehension of evidence, the appellants must show:

• a misapprehension of the evidence;
• the misapprehension is material; and
• the errors played an essential part in the reasoning process resulting in the conviction:

See R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 and R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732.

[73] As the Supreme Court stated in Lohrer, at para. 2:

The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”.

(a) Three open wounds

[74] The appellants submit that the trial judge found, at para. 101, that H. had “three open wounds” but that the evidence did not support this finding. I disagree.

[75] While the ambulance call report noted “sores on body” without further elaboration, the emergency room record noted three wounds. That record indicated that H. had a two centimetres “open sore” wound on his left scapula, a five-by-four centimetre “open sore” wound on his right buttock, and an “open wound” on his left buttock. There was no misapprehension of the evidence by the trial judge in this regard.

(b) Painful and Untreated Wounds

[76] The appellants then submit that the trial judge erred in finding that these three wounds “must have been painful and were untreated for weeks”. They argue that the trial judge relied on Dr. Samuel’s testimony but he only said that the wounds would have been painful initially, not for weeks.

[77] The trial judge did not err in his summary of the evidence.

[78] Dr. Samuel’s did testify that once the abrasions or scrapes became infected to the stage reflected in the photographs of H., the process could take a couple or a few weeks and that initially this process would be painful.

(c) New Lesions

[79] The appellants argue that while H. was being treated, new lesions appeared but the trial judge failed to address this evidence.

[80] The trial judge did not address this evidence but I am unable to conclude that it was material. First, even if new lesions appeared, this would not negate the necessitous circumstances. Secondly, I am not convinced that there was clear evidence that new lesions continued to appear. The source of the information on new lesions or sores was a first year student’s notes made on February 2, 2007, and which placed quotation marks around the word sores. As Dr. Clarke explained, usage of quotation marks in medical notes denotes uncertainty. Further, on February 13, 2007, Dr. Clarke wrote that H.’s wounds were at a “considerably advanced state of healing”. Accordingly, H.’s condition improved once he received medical attention.

(d) Hospitalization

[81] The appellants submit that the trial judge misapprehended the evidence on the need for H.’s hospitalization. It was not disputed that H. required hospitalization due to the seizure he experienced. Contrary to the trial judge’s finding, they argue, no other need for hospitalization was evident from the evidence.

[82] I would not give effect to this submission.

[83] First, the trial judge, at para. 113, recognized that the appellants brought H. to the hospital as a result of a seizure.

[84] Secondly, clearly H. was in need of care. As Dr. Levin testified: H. “needed fairly urgent, significant, dedicated, concentrated care … He required wound care or burn care, as we call it.” Dr. Levin was graphic in his description of H.’s condition:

[T]here's two aspects of neglect in this case; one is that the child clearly had a number of medical problems, was very sick and apparently got to extremis before he was brought to a doctor. One would think that any reasonable caretaker would look at the injuries, lesions and general behaviour of this child to say the kid needed medical care or at least bring that to the attention of your medical providers. I'm here because my kid can't walk. I'm here because my kid has big lesions on their buttocks. But secondarily, one can clearly see that these wounds, particularly of the shoulder, left shoulder, and of the buttocks were in need of care. They're open, weeping wounds. The one on the shoulder had a hole, it was digging – it was eating down into the flesh without any care. And lastly, we can also say if you look at the wound on the head, that old, big, circular scar on the left arm, that circular scar, at some time when those happened, they were big wounds, and I don't have any evidence that the child ever had medical care or was reported to have those wounds. Those are the kind of wounds that one would say – go to a doctor and say, “what do I do about this?”.

[85] Dr. Clarke’s evidence was consistent. He stated that H.’s buttocks and shoulder wound were definitely in need of medical attention. The evidence disclosed a need for hospitalization that transcended the seizure.

(e) Necessitous Circumstances

[86] The appellants submit that the trial judge based his finding of necessitous circumstances on H.’s presentation as malnourished, anemic with vitamin C levels consistent with scurvy, three open wounds, and scars all over his body despite the fact that there was no evidence or analysis that these conditions, other than the wounds on the buttocks, ought to have been known to the appellants.

[87] While at para. 100 of his reasons, the trial judge described H.’s presentation at the hospital, the focus of his analysis was on H.’s three open wounds (two to the buttocks and one to the shoulder) and that the parents’ failure to obtain medical attention for this condition amounted to a marked departure from the applicable standard of care.

[88] Furthermore, it must be emphasized that these were “open wounds” and clearly visible as evident from the photographs entered as exhibits at trial.

[89] I would not give effect to this argument.

(f) Treatment

[90] The appellants submit that the trial judge failed to appreciate that the treatment for the wounds that H. received after he was hospitalized was no different from the treatment he received at home and, therefore, the appellants’ failure did not cause or prolong H.’s condition. As such, there could be no marked departure in regards to the appellants’ conduct. Put differently, the appellants argue that there could be no marked departure from the norm given that the hospital was unable to do anything that ameliorated H.’s condition that differed from the treatment the appellants provided.

[91] As discussed, whether the doctors were able to assist H. is irrelevant to a finding of criminal liability under s. 215(2)(a)(i). Further, in my view, this submission does not meet the threshold for misapprehension of evidence.

[92] At the hospital, where H. remained from January 27, 2007 to February 8, 2007, H.’s wounds were the subject of regular monitoring and evaluation. Numerous physicians were consulted. Duoderm and Bactigras dressings were regularly applied to his wounds and Telfa, Tegaderm, Vaseline, and gauze were used as well. On January 28, H. was ordered on to an air bed to provide pressure relief for his wounds.

[93] H. continued to receive monitoring on his discharge from hospital. As Dr. Clarke testified:

When [H.] left the hospital, he still had open wounds which had not healed. He was still having dressing changes. So, he returned to the Plastic Surgery Clinic so we could monitor the progress of the healing, provide advice about these dressings, and then move on to further treatment once the wounds were healed.

[94] The foster mother recalled having to take H. to “a lot” of medical appointments in the 8 to 12 month period following his discharge, and was given a prescription of Bactigras dressing and Polysporin for H.

[95] The treatment provided by the appellants did not compare to his actual requirements. There is no basis for this allegation of misapprehension.

(g) Malnourishment

[96] The appellants submit that the trial judge failed to assess how H.’s malnutrition resulted in criminal liability and ignored significant factors such as his weight gain in that analysis.

[97] As mentioned, the three wounds were the focus of the trial judge’s conclusion on necessitous circumstances and grounded his marked departure analysis. Any omission by the trial judge on the impact of malnutrition on H. did not play an essential part in the reasoning process that resulted in the appellants’ convictions.

[98] For all of these reasons, I would not give effect to the appellant’s submissions based on misapprehension of evidence.

(iv) Fourth Issue: Adequacy of Reasons

[99] I would not give effect to the argument that the trial judge failed to provide sufficient reasons. The basis of the verdict is clear from the trial judge’s assessment of the evidentiary record. He was clearly alive to the important issues in the case: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 55.

I. Sentence

[100] On sentence, the appellants submit that the trial judge erred in principle and imposed a sentence that was manifestly unfit. They state that he overemphasized the objectives of denunciation and deterrence and failed to consider those of rehabilitation, reparations, and promotion of a sense of responsibility. The appellants submit that the trial judge failed to give adequate weight to the uncharacteristic nature of the appellants’ conduct and that the Children’s Aid Society implicitly had approved the appellants’ parenting given that they had returned the appellants’ two other young children into their custody after one year.

[101] The appellants also state that the trial judge ignored the fact that the appellants posed no risk to reoffend and that sentencing objectives would be well served by imposing conditions such as house arrest or curfew that would be sufficiently punitive. A conditional sentence should not be rejected on the basis that the conditions attached to the conditional sentence would render it insufficiently punitive.

[102] The trial judge considered the appropriate range of sentence to be four to eight months custody. He found that the Children’s Aid Society had impliedly approved of the appellants’ parenting of the two other children. He also referred to the numerous letters of support which suggested that the appellants’ conduct was out of character. He was aware that the appellants had no criminal record and had co-operated with the Children’s Aid Society. He noted that, in the event the appellants were to be incarcerated, arrangements for the care of the appellants’ two remaining children had been made. He concluded that there did not seem to be a need to be concerned about their rehabilitation.

[103] He was satisfied that neither of the appellants would endanger the safety of the community.

[104] The trial judge observed that s. 718.2 of the Code required that he take into consideration that H. was a victim under the age of 18 years and that the appellants abused a position of trust in relation to him.

[105] The trial judge did consider a conditional, however, he was of the view that denunciation required that the sentence show society’s disapproval of the offenders’ conduct: R. v. C.A.M., 1996 230 (SCC), [1996] 1 S.C.R. 500, and, more particularly, society’s response to child neglect: R. v. Turner (1995), 1995 3899 (NB QB), 165 N.B.R. (2d) 11, aff’d (1997), 1997 9516 (NB CA), 185 N.B.R. (2d) 190 (C.A.), leave to appeal to S.C.C. refused, [1997] S.C.C.A. No. 532.

[106] He was satisfied that neither of the appellants would endanger the safety of the community, but he was not satisfied that a sentence to be served in the community would be consistent with the principles of sentencing. He was unable to fashion conditions that would be appropriate to provide an appropriately punitive sentence.

[107] Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, an appellate court should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit: R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 90. I am not persuaded that the trial judge made any error in principle in sentencing the appellants. He considered a conditional sentence but rejected it on the basis that it was inappropriate. Nor was the sentence manifestly unfit. Accordingly, leave is granted but the sentencing appeals are dismissed.

J. Disposition

[108] Accordingly, I would dismiss the conviction appeals, grant leave to appeal the sentences and dismiss the sentence appeals.

Released:

“DD” “S.E. Pepall J.A.”

“FEB 11 2015” “I agree Doherty J.A.”

“I agree M. Tulloch J.A.”

[^1]: Prior to the hearing of the appeal, the appellants abandoned their application to adduce fresh evidence.

[^2]: In A.D.H., Cromwell J. discussed the provenance of s. 215 of the Code in the context of its relationship to s. 218 of the Code which deals with the offence of child abandonment.

[^3]: In R. v. Curtis (1998), 1998 1999 (ON CA), 123 C.C.C. (3d) 178, this court declared the reverse onus clause “the proof of which lies on him” found in s. 215(2) of the Code to be of no force or effect.

[^4]: See also Curtis.

[^5]: Oxford University Press, “Definition of necessitous in English” (2015), online: Oxford Dictionaries http://www.oxforddictionaries.com/definition/english/necessitous.