Court Information

Court: Ontario Court of Justice Location: Scarborough - Toronto Date: October 11, 2019

Parties

Between: Her Majesty the Queen

And: Courtney O'Hara and Nicholas Palmer

Counsel

For the Crown: A. Rowell

For the Defendant, O'Hara: M. Murphy

For the Defendant, Palmer: K. Mattis-Harrison

Hearing Dates

July 22 - 25 and 29 – 30, 2019

Judge

Russell Silverstein, J.

Reasons for Judgment

A. INTRODUCTION

[1] On June 13, 2017 police executed a search warrant at the home of the defendants. When the police entered their apartment, they discovered that it was extremely unsanitary. There was rotting food in the kitchen and living room, several garbage bags were full and stored in a closet. The cupboards were bare, and the refrigerator contained only rotten food. The floors throughout the apartment were sticky and caked with dirt. The entire apartment smelled of urine and feces. The defendants' four-year-old daughter, Jazmine, was found in a room on a bare mattress that smelled heavily of urine. There were feces of an unspecified age on the floor of the room and in the room's closet. The interior surface of the door to the parents' bedroom was smeared with dry feces. The bathroom was extremely dirty.

[2] The door to Jazmine's room was closed and the doorknob was attached by a rope to a doorknob across the hall preventing Jazmine from exiting her room.

[3] Jazmine was extremely dirty, but otherwise apparently healthy.

[4] Ms. O'Hara and Mr. Palmer were arrested, and each was charged with two offences:

(i) Failing to provide the necessaries of life to their child, Jazmine Palmer, contrary to s. 215(2)(a)(i) of the Criminal Code, and;

(ii) Forcible confinement of Jazmine Palmer contrary to s. 279(2) of the Criminal Code.

[5] The principal issue as concerns the alleged forcible confinement is whether the confinement falls outside the ambit of the lawful confinement a parent may resort to in the protection of his or her child.

[6] As concerns the alleged failure to provide necessaries, the principal issues are whether a sanitary environment, free of urine, garbage and feces, is a "necessary" as the term is used in s. 215(2)(a), and whether the Crown has proved a legally sufficient risk of harm to Jazmine to support a criminal conviction.

B. EVIDENCE

(a) Introduction

[7] Ms. Rowell called as witnesses four police officers who attended at the defendants' apartment on June 13, 2017. She also called a former neighbour who lived next to them when they occupied an apartment in Kemptville, Ontario in 2013-2014 and a Children's Aid employee who worked with the family in Kemptville. I also heard testimony from two individuals who attended the Toronto apartment 11 days prior to the arrest and a psychologist who examined Jazmine on two occasions within months of her apprehension by the Children's Aid Society (C.A.S.) on June 13, 2017.

[8] Both accused gave statements to the police on the day of their arrest. Both defendants conceded the admissibility of these statements, and redacted versions of the statements were entered into evidence by Ms. Rowell.

[9] Neither accused testified, but Ms. Mattis-Harrison led testimony from Mr. Palmer's grandfather, who is now Jazmine's guardian.

[10] There were no material challenges to the credibility or reliability of any of the witnesses.

(b) The evidence of the condition of the home in June, 2017

[11] Officers Joel Manherz, Dana Boyko, Rebecca Siss and Don Bai executed a search warrant on an unrelated investigation at the defendants' apartment early in the morning on June 13, 2017. Officer Bai took photos and a video of the apartment. Although officers Manherz and Boyko both could not suppress their disgust when giving their testimony, I accept the evidence of the officers as to what they discovered, and it is summarized above in paragraphs 1 – 3.

[12] Eleven days earlier, on June 2, 2017 the building superintendent, Ilisa Julissa Ordonez visited the defendants' apartment along with Andre Thompson, a pest controller. Ms. Ordonez testified that the apartment was extremely dirty. It smelled of urine and feces. There were flies everywhere as well as urine and dried feces on the floor. Jazmine's bedroom was worse than the defendants' room. The hall closet was full of garbage. Mr. Thompson recalls that the apartment was extremely dirty. He too remembers fecal matter smeared on the wall and on the floor. He remembered commenting to the superintendent as to how extraordinary it was.

[13] I accept the unchallenged evidence of Ms. Ordonez and Mr. Thompson.

[14] The Crown led no evidence as to the age of the feces that were found in various parts of the apartment, nor did the Crown lead any evidence detailing the extent of the risk of harm posed by these feces, or any of the other unsanitary characteristics of the apartment's environment.

(c) The evidence of the condition of the family home in 2013-2014

[15] The defendants, along with their daughter, Jazmine, lived in an apartment at 108 Oxford Street East in Kemptville, Ontario in 2013 - 2014.

[16] The family had somehow come to the attention of the C.A.S. and Julie Caron was their assigned child protection worker. She attended at the apartment for an unscheduled visit on June 24, 2014. The home had a foul odour and full garbage bags were strewn about the apartment. Jazmine's room contained a playpen. Ms. Caron was concerned about the defendants' parenting skills and provided the defendants with access to parenting resources. Her concerns were not, in her opinion, sufficiently grave to warrant Jazmine's apprehension. On July 21, 2014 she learned that the family had moved out. She went to the apartment on July 31 and saw dog feces.

[17] Sarah Egeberg lived next door. She saw the family a few times as they came and went, and she saw the interior of the apartment only fleetingly as the defendants opened and closed their door. The odour from their apartment could be detected in the common hallway. After the defendants had moved out, Ms. Egeberg offered the landlord her services in cleaning the apartment. She discovered a filthy apartment littered with dog feces, dirty diapers on the counters and tabletops, moldy food and many full garbage bags left behind. The apartment was unlike anything she had ever seen.

(d) The statements of the accused

[18] Mr. Palmer was interviewed twice on June 13, 2017. He explained to the police that the reason he and Ms. O'Hara, his common-law spouse, tied Jazmine's door shut during the night was because if left free to roam, Jazmine would routinely get into laundry detergent or cleaning supplies and drink them. He described her as very destructive. They had once found razors in her room and had to call poison control on several occasions.

[19] He explained the lack of bedding on Jazmine's bed as being the result of her covering the bedding in laundry detergent the previous night. According to Mr. Palmer, Jazmine would often smear her own feces on the walls. He and Ms. O'Hara had tried unsuccessfully to clean it up. As for the feces in Jazmine's closet he said that she was always doing that and that he couldn't count how many times they had cleaned it up.

[20] He told police that he was not aware of any odour at all. He explained that the apartment was not normally in the admittedly bad state the police found it, and that on the day Andre Thompson and the superintendent attended for pest control it was "spotless". Yet when the interviewing officer suggested to him that there was two years' worth of filth on the bedroom walls, he agreed. He admitted responsibility for letting the situation "get this far".

[21] He told police that he and Ms. O'Hara had enjoyed the programs that had been made available to them by the C.A.S. in Kemptville but that when they tried to enroll in similar programs in Toronto the intake workers were so "stuck-up" that they got discouraged.

[22] Ms. O'Hara was interviewed twice on June 13, 2017. She told them that she had spent hours trying to scrub the feces off the walls, but to no avail. As for the rope on Jazmine's door, she gave the police much the same explanation as did Mr. Palmer. She added that Jazmine would routinely yell out if she needed to go to the bathroom and they would wake up and let her out to use the bathroom. It is worth noting that the defendants did not have an opportunity to speak to each other before being interviewed.

[23] Ms. O'Hara acknowledged that there was a week's worth of garbage in the closet. She claimed that she couldn't take the garbage out while she was looking after Jazmine because Jazmine would tear the bags open. She expressed much remorse for having allowed their living situation to deteriorate as it had.

[24] Both accused made clear to the police that they were extremely poor.

(e) The evidence as to Jazmine's behaviour shortly after her apprehension on June 13, 2017

[25] Given that the Crown has conceded that no evidence has been called that supports a finding that Jazmine's behavioural, emotional and cognitive status as observed upon her apprehension was caused by the unsanitary environment, I will say little about this body of evidence since it is not material to my decision.

[26] Jazmine was removed from the apartment and was initially in the care of Officer Boyko, who described Jazmine as being extremely uncommunicative at first.

[27] Jazmine was interviewed twice by the police and those interviews were videotaped. On June 16, 2017 Jazmine appears cheerful, yet not particularly responsive to questions put to her by D.C. Boyko. On February 9, 2018 she still appears quite cheerful but is more focused and responsive than she was in June 2017.

[28] I reiterate that no evidence was called in support of the proposition that Jazmine's behaviour and attitude were caused by the unsanitary environment provided by the defendants.

(f) The opinion evidence of Dr. Daniel Fitzgerald

[29] Dr. Fitzgerald was qualified as an expert in psychology. He was retained by the C.A.S. to do an evaluation and assessment of Jazmine for the purposes of refining her future placement. He was not made aware of the circumstances of her apprehension and did not offer any opinion as to whether her unsanitary circumstances contributed in any way to Jazmine's overall psychological status and her below average performance on several psychological tests.

(g) The evidence of Victor Palmer

[30] Victor Palmer is Jazmine's great grandfather. Several months after Jazmine's apprehension he took over her care and she came to live with him and his wife.

[31] Mr. Palmer testified as to the details of the accused Palmer's difficult and sad upbringing, including his ADHD diagnosis.

[32] He described Jazmine as a bubbly, energetic and happy child. He would sometimes visit the defendants and go on outings with them and Jazmine before June 13, 2017. He described several photographs and videos of Jazmine taken over the years.

[33] He visited the family in Kemptville and in Toronto. His last visit to the Toronto apartment was in February 2017. He described the defendants' living conditions as "untidy" but not unhealthy. Jazmine was always clean and well-presented when he saw her with them.

[34] I accept Victor Palmer's evidence. As concerns the difference between the state of the defendants' apartment in February 2017 and its state in June of 2017, the evidence of the state of the apartment on June 2, 2017 carries far greater weight than the evidence concerning February on the issue of just how long the June 13 circumstances prevailed.

C. ANALYSIS

(a) Do I accept the statements of the accused and if not, do they raise a reasonable doubt?

[35] Given just how filthy the apartment was on June 13, and how extremely dirty it was on June 2, I am convinced that the apartment was likely never clean between June 2 and June 13. The state of the Kemptville apartment as testified to by Ms. Egeberg lends further support to this conclusion.

[36] I reject the defendants' assertions that the apartment was significantly cleaner just days before the police arrived. This assertion is at odds with the evidence from the witnesses who did attend the apartment on June 2, 2017, whose testimony I accept, and which demonstrates a somewhat long-standing unsanitary environment.

[37] Both defendants' description of Jazmine as a child who tended to get into dangerous situations with household cleaning products corresponds with her demeanour when she was first apprehended by the police. Their explanations are inherently plausible and corroborate each other. I thus accept their explanation as to why they confined Jazmine in her room at night.

(b) Forcible confinement in the context of childrearing

[38] The leading case as concerns the law of forcible confinement in the context of childrearing is R. v. Magoon, 2018 SCC 14 where the Supreme Court explained at paragraphs 65-69:

Although the legal standard for proving unlawful confinement is technically the same for children as for adults, the parent-child context is relevant to both parts of the unlawful confinement analysis. First, children are easier to confine and, in the case of young children, are regularly confined for health and safety reasons, or as a disciplinary measure. Second, there are lawful justifications for confinement in the parent-child context that do not exist in other contexts. When dealing with a parent-child relationship, courts must assess whether there has been unlawful confinement with these two considerations in mind.

Children are easier to confine because they are inherently vulnerable and dependent, and generally look to adults to define the scope of permissible behaviour. This is especially so in the case of young children, whose dependency is usually total. Parents are placed in a position of trust and responsibility over children precisely because children are often helpless without the protection and care of their parents. Parents are the adults on whom children are most dependent and from whom they routinely receive -- and expect -- directions. A child's freedoms are, from the child's point of view, demonstrably circumscribed by the fact that parents are their primary authority figures.

As indicated, 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 (see Bottineau (S.C.J.), at para. 489; Bottineau (C.A.), at para. 101). 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" (see Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, at para. 40).

In short, disciplining a child by restricting his or her ability to move about freely (by physical or psychological means), contrary to the child's wishes, which exceeds the outer bounds of punishment that a parent or guardian could lawfully administer, constitutes unlawful confinement.

[39] In the case of the defendants and their decision to confine Jazmine to her room overnight, I accept their explanation for that confinement and I am not convinced beyond a reasonable doubt that this confinement falls outside the category of the restriction of liberty that parents are lawfully entitled to resort to in accordance with the best interests of their child.

(c) The alleged failure to provide necessaries

(i) The essential elements of the offence

[40] Section 215 reads as follows:

(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.

[41] In the case at bar the accused are charged under s. 215(2)(a)(i) and the Crown has proceeded summarily.

[42] To secure a conviction for failing to provide the necessaries of life the Crown must prove beyond a reasonable doubt that (1) the defendants had a duty to care for Jazmine (which the defendants concede), (2) that Jazmine was in either destitute or necessitous circumstances, (3) that the defendants failed to provide her with the necessaries of life, and (4) that the failure to provide on the part of the defendants demonstrated a marked departure from what a reasonably prudent parent would do. R. v. S.J., 2015 ONCA 97 at para. 49.

[43] There is no requirement that the Crown prove that Jazmine's life was endangered or that she suffered any damage or injury as a result of the alleged failure to provide necessaries.

(ii) Was Jazmine in destitute or necessitous circumstances?

[44] In S.J., supra at para. 66, Peppal J.A. notes that the Oxford Dictionary defines "necessitous" as "lacking the necessaries of life". While at first blush this would appear to render redundant this essential element of the offence of failing to provide the necessaries of life, it does makes sense that the failure to provide necessaries should not be a criminal offence if the child is nonetheless receiving them from someone else. R. v. J.W.L., [1992] M.J. No. 380 (Man. Prov. Ct.)

[45] Peppal J.A., in paragraph 64 of S.J., supra, when again referring to the necessitous or destitute circumstances of the child, says the following: "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)". (emphasis added)

[46] The word "dire" is not ambiguous. It means extremely serious, or grave. Do the dicta of Peppal J.A. mean that the child's circumstances must be extremely serious before it can be said that they are either necessitous or destitute? Or, is Peppal J.A. simply assigning a convenient word-substitute for the phrase, "necessitous or destitute", without imposing a burden on the Crown to prove more than that the child is lacking the necessaries of life?

[47] If the former is correct, then the defendants must be acquitted. There is no evidence that Jazmine's filthy circumstances caused any ill health or emotional damage to her from which it might be inferred that her circumstances were dire. As for whether her circumstances could be said to be dire because of an extreme risk of harm, the Crown called no evidence to support such a finding. In my opinion, even if it is open to me to resort to judicial notice and common sense to conclude that the unsanitary environment provided to Jazmine created some risk of harm, of which more is said below, I am unable to make any finding as to the extent of the risk of harm in the absence of expert evidence. While I know that in modern Canadian society we go to great lengths to distance ourselves, and in particular, our children, from urine, feces and garbage, I do not know the extent of the risk of harm posed by Jazmine's circumstances. This is a scientific and medical issue. My judicial intuition is no substitute for expert evidence in this realm.

[48] If, however, Peppal J.A. is only using the word "dire" as a convenient word-substitute for "necessitous or destitute", the Crown need only prove that Jazmine lacked the necessaries of life and the inquiry moves on to the following two questions: is a sanitary environment a "necessary of life" and was the behaviour of the respondents a marked departure?

[49] In my opinion, Peppal J.A. could not have meant that the child's circumstances must be extremely serious or grave before criminal liability can attach under s. 215(2)(a)(i). Such an interpretation of the statute would fly in the face of Parliament's intention.

[50] Statutory interpretation in Canada is approached in accordance with the rule as reiterated by the Supreme Court on many occasions. In 65302 British Columbia Inc. v. Canada, [1999] S.C.J. No. 99 at para. 5, Bastarache J. says:

It is well established that the correct approach to statutory interpretation is the modern contextual approach, set out by E. A. Driedger in Construction of Statutes (2nd ed. 1983), at p. 87:

... 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.

The modern rule is again described in Driedger on the Construction of Statutes (3rd ed. 1994), by R. Sullivan, at p. 131:

There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning.

[51] Parliament clearly intended to create two grades of offences under s. 215. The more serious offence, s. 215(2)(a)(ii), addresses situations where the parents' omission "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", i.e. where a child is in grave circumstances. The less serious offence, s. 215(2)(a)(i), addresses situations where the parents' omission creates circumstances for the child that are not described as grave.

[52] To interpret the statute as requiring proof of dire circumstances for the more minor offence would render the more serious offence redundant.

(iii) Did the environment provided by the defendants constitute a failure to provide Jazmine with the necessaries of life?

[53] What constitutes a "necessary of life" as set out in s. 215 is reviewed by Peppal J.A. in S.J., supra, at paragraphs 50 – 51:

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, 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), 61 C.C.C. (2d) 163 (Alta. Q.B.); R. v. Pertab (2004), 27 C.R. (6th) 126 (Ont S.C.); 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:

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.

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

[54] The constitutional standard for what degree of harm is required for criminal legislation to pass muster is not particularly high. As the Supreme Court sets out in R. v. Malmo-Levine, 2003 SCC 74 at para. 133:

Once it is demonstrated, as it has been here, that the harm is not de minimis, or in the words of Braidwood J.A., the harm is "not [in]significant or trivial", the precise weighing and calculation of the nature and extent of the harm is Parliament's job.

[55] As Peppal J.A. put it in S.J., supra at para. 63, the issue simply comes down to whether the defendants' failure to provide a sanitary environment created a risk of harm to Jazmine.

[56] As noted above, the Crown called no evidence that Jazmine was indeed harmed by her environment. Such evidence would have led to the unavoidable inference that the environment did pose a risk of harm.

[57] Nor did the Crown call any evidence as to what risk of harm is associated with moderately prolonged exposure to feces, garbage, rotten food and urine. Nor was any evidence called as to the age of the feces or rotten food found in the defendants' apartment. The defendants did, however, admit to police that the accumulated garbage in the closet was approximately a week old.

[58] Notwithstanding the lack of evidence on this issue, Ms. Rowell asks me to take judicial notice of the fact that the state of the defendants' apartment on June 13, 2017 and in the days leading up to it, posed a risk of harm to Jazmine beyond de minimus.

[59] In exceptional circumstances a court may, in the absence of sworn testimony subject to cross-examination, take judicial notice of certain adjudicative facts. The test for when this may be done is set out in R. v. Find, 2001 SCC 32 at para. 48:

… the threshold for judicial notice is strict: 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:

See too R. v. Spence, 2005 SCC 71 at paras. 54-55

[60] I believe that any reasonably well-educated person would know that feces carry bacteria and that bacteria cause disease. But, would any reasonably well-educated person "know" that three-week-old feces pose a risk? How about eight-week-old feces? As time passes, at some point the risk of disease posed by exposure to old feces is not obvious and requires expert evidence.

[61] As for exposure to urine, I can safely say that any reasonably well-educated person would know that the odour of urine is extremely unpleasant and that it contains substances that the human body must expel. But can it be said that any reasonably well-educated person would "know" that it poses a not insignificant risk of harm? And again, wouldn't the age of the urine be of some moment? The same can be said about rotting food.

[62] As for the garbage that the defendants had allowed to accumulate for a week, again I think it is universally understood that this garbage would have made the apartment a very unpleasant place to live. But I hesitate to conclude that it is beyond reasonable dispute that it posed a risk of harm.

[63] Although I personally strongly suspect that the unsanitary environment created by the defendants posed a non-trifling risk of harm to Jazmine, for the reasons set out above, I refuse to take judicial notice of that fact. It should also be noted that whether a judge takes judicial notice of adjudicative facts is discretionary. R. v. Krymowski (2003), 65 O.R. (3d) 75 (C.A.), rev'd on other grounds, 2005 SCC 7. Expert evidence on these questions was readily available to the Crown in this prosecution. Any public health professional could have addressed these issues.

[64] The Crown has failed to prove a risk of harm beyond de minimus and has thus not proved that the defendants failed to provide the necessaries of life.

(iv) Was the defendants' failure to provide a sanitary environment a marked departure?

[65] In my opinion, this is a distinct question from whether what the defendants failed to provide Jazmine were "necessaries" as defined above. There can be no question but that the environment provided to Jazmine was indeed a marked departure from what a reasonably prudent parent would provide their child. I bring my understanding of community standards to bear in this determination.

D. CONCLUSION

[66] For the reasons expressed, I find both Ms. O'Hara and Mr. Palmer not guilty of both charges.

Released on October 11, 2019

Justice Russell Silverstein