Ontario Court of Justice

Date: 15 January 2015

Between:

HER MAJESTY THE QUEEN

— AND —

Ms. X. HUANG

Before: Justice S.R. Shamai

Heard on: December 2, 2014 and December 19, 2014

Judgment on: January 15, 2015

Counsel

Rita J. Maxwell — counsel for the Crown

Mark Sandler — for the defendant X. Huang

Decision

SHAMAI, J.:

Ms. Huang is charged that she abandoned her child on July 6, 2013, when she left the four and a half year old girl in the car on a hot July afternoon. There is little dispute as to the facts; however several witnesses, including Ms. Huang, testified on the trial. The issue concerns the application in law of the concept of abandonment. The recent decision of the Supreme Court of Canada in R. v. A.D.H. is clearly of application.

Facts

Ms. Huang lives in the downtown of Toronto, with her mother and her daughter, Cynthia. Ms. Huang works as an IT consultant for a bank. She had travelled by transit to Scarborough Town Centre with her daughter on July 6, 2013, to fetch her car from a nearby mechanic shop. On returning downtown, Ms. Huang decided to stop at an Asian specialty supermarket, T&T, located on Cherry Street. Her daughter particularly liked the fried rice there, and as they rarely got to shop there, it would be a treat for the child. However, Cynthia was fast asleep in her car seat, on arrival in the parking lot and Ms. Huang decided that rather than shake her to wake her, she would leave her sleeping in the car while she dashed in to purchase the fried rice. The car was quite cool, from air conditioning, and Ms. Huang left the windows closed, the child strapped into her seat, and she locked the doors.

It was however, a very hot July day, and there had recently been a much publicized tragedy in Toronto, a six year old who died because he'd been left in an overheated locked car by his parent. It was an agreed fact in the matter, that the temperature had reached a high of 29 degrees Celsius that day, and was just short of it at 3 pm: at 28.6 degrees. At 4 p.m., it was 27.5 degrees.

When Mr. and Mrs. O'Rourke pulled into the lot, and parked nearby, Mrs. O'Rourke became very concerned for the child's well-being and set out to call emergency services. She did not have a cell phone, however, and the supermarket would not help her to make the call. She had to run back to find her husband to get a quarter (not realising that a 911 call was free) and then ran to find a phone booth. Records show that the call was placed at 15:17 hours, that is, 3:17 pm. Police arrived very promptly. Cst. Sheraz testified to the efforts made by himself and his escort that day, to remove the child from the car. They broke a window of the car. Meanwhile, the store management caused an announcement to be made in the store, resulting in Ms. Huang running out to the lot. She was very upset on reaching the car, seeing her daughter then awake but in police custody, about to be taken to hospital for assessment.

Cst Sheraz testified that he observed the child to have perspiration at her hairline. He said she did not respond to his knocking on the window, but woke upon being removed from the vehicle. A medical exam showed that the child had not suffered from the time she was alone in the vehicle. The officer testified that the weather that afternoon was hot indeed: with the humidity, it felt like 39 degrees Celsius, and he stated that the interior of the vehicle felt somewhat warmer than that. Ms. Huang said the car was definitely cool when she left her daughter in it, and that she would not have left the child if she felt it was dangerous. She said she was almost at the cash register when she heard the announcement with her licence plate number in it.

The testimony of the O'Rourke's in the context of the evidence as a whole raises a question about how long the child was actually in the vehicle. There is some suggestion that Ms. Huang was walking away from her car when the O'Rourkes pulled in beside it; however that is not clear. The time it took for police to arrive from the moment Mrs. O'Rourke noticed Cynthia is somewhat easier to quantify but far from certain. The defence position sets the elapse of time between six and eighteen minutes. The Crown assesses the time as considerably longer, even just taking into account the time for Mrs. O'Rourke to make her phone call. Crown suggests the time was closer to 30 minutes.

Legal Framework

Section 218 of the Code creates the offence in these terms:

"everyone who unlawfully abandons or exposes a child who is under the age of ten years, so that its life is or is likely to be endangered or its health is or is likely to be permanently injured,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months"

In the recent decision of R. v. A.D.H. [2013] S.C.R. 28, the Supreme Court of Canada spoke definitively to the fault component of the offence. Although there was a significant split among the members of the Court, the opinion of the majority was expressed by Cromwell J. He states clearly that subjective fault must be proved as the mens rea, the mental element of the offence. This means that the accused's action not only exposes a child to risk, but that in taking the risky action, there be an awareness of the risk involved. (para. 46.). Justice Cromwell reviews the history of child protection legislation, both criminal and regulatory. Dating back to the mid-nineteenth century, enactments specifically focused on the punishment of persons not only causing actual harm to children, but as well, putting them at risk of harm. The Court notes that the evolution of the section creates a broad scope for liability, focusing not only on those who have an obligation or duty in relation to the child, but are intended to include any person putting a child at risk. However, the Court in A.D.H. makes the point, that

"While the conduct and people that fall within s. 218 of the Code are broadly defined, the requirement for subjective fault ensures that only those with a guilty mind are punished" (para 41)

Clearly, that guilty mind includes not only the specific formulation of intent to abandon or expose, thereby creating risk of harm, but also a number of other states of mind, namely, willful blindness or recklessness. However, even in the case of the latter, the Court speaks of it in this context thus: "the accused persisted in a course of conduct knowing of the risk which it created" (para 16) (emphasis added)

Application

In the case of Ms. Huang, the evidence shows that the defendant cared deeply about her child, and devoted her time and care to the child. Even the investigation of Children's Aid Society after the event in question confirms this: CAS returned the child to mother forthwith, and discontinued any supervision of the situation promptly.

Ms. Huang's actions in leaving the child in the car spoke to her taking measures for the child's benefit and to safeguard the child. Ms. Huang had attempted to take her child into the store with her. As the child appeared to be in a deep sleep, which made sense in terms of her activities that day and the night before, mother decided that for her quick dash into the store, to get a special food treat for the child, she would leave her in the car. She left the child buckled into her car seat, to ensure that if she awoke, she could not leave. To that end as well, Ms. Huang locked the doors and closed the windows, as in her mind, this would prevent anyone from "stealing" her child. She was mindful of the heat of the day, as she did have the air conditioning on, in the car. She testified that her car was in fact so cool that she had to moderate the coolness, so it would not be too cold as they drove from the mechanic to the supermarket. Ms. Huang's intention, on leaving the child in the car was to get the special fried rice from a store they infrequently visited, as it was on the way home from the mechanic's, a location which was indeed distant from their home in the city. Ms. Huang apparently considered a couple of items in the store, which she saw as she went from the prepared food counter to the cash, and it was on that route within the store that she heard her license plate number and car description over the loudspeaker, and rushed out to her car.

No doubt, Ms. Huang's actions in leaving her child locked in a closed car on a very hot day were unwise in the extreme. I accept Ms. Huang's testimony, that she did not appreciate just how hot the day was. I am skeptical that she properly took into account the amount of time it might take her to purchase even the one item, on a crowded Saturday afternoon at the popular market. I understand how difficult it can be to rouse a sleeping child, and require the child to move from slumberland to a crowded supermarket. Those choices, properly considered, may well have resulted in no fried rice treat that day. I am grateful, on behalf of the community and especially in relation to the child, that Mrs. O'Rourke noticed the child and took the actions she did. However, the evidence is far from establishing beyond reasonable doubt that Ms. Huang had the requisite awareness of the risk to which she was exposing her child. Even in terms of wilful blindness, I accept that Ms. Huang had taken into account the circumstances, as she understood them, in which she was leaving her child, including her calculation of time. Ms. Huang appeared to me to be an intelligent person, mindful of possible risk, and not unaware of the weather that day. Her errors do not themselves negate the care she took that day, or which she habitually took, with respect to her child's well-being. She may have erred, but not so as to commit the criminal offence of abandonment.

Disposition

I dismiss the charge.

Released: January 15, 2015

Signed: Justice S.R. Shamai