



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    the victim or witness shall not be published in any document or broadcast or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    the justice system participant shall not be published in any document or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) societys 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 judges 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. Shahs 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. Shahs 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 Childrens 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. Levins 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. Levins 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
    appellants third child was born on April 19, 2007 and immediately placed in
    foster care.  After one year of supervised visits with the Peel Childrens 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 Crowns position that H. was abused and in
    serious need of medical attention.  The Crowns 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. Greenwalds 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. Beralls opinion and disagreed that H. suffered from protein
    energy malnutrition.  In Dr. Zlotkins opinion, there was an insufficient
    reliable history for such a diagnosis and the photographs and laboratory
    results were not consistent with malnutrition.

D.      Trial Judges 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. Samuels 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 mothers 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 fathers liability.  He concluded that H. had been in
    necessitous circumstances for about a month.  The trial judge noted the
    fathers 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 fathers 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 Judges 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 Childrens 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),
    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]
3 S.C.R.
    122, at pp. 141-142, Lamer C.J.C. considered the standard of care reflected in
    s. 215:

The accuseds 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), 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.

[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 accuseds 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), 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 childs 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] 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 childs 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 appellants failure to provide
    necessaries of life and the childs 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 judges 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), 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. Samuels 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.
    Samuels 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 students 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 judges 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.
    Clarkes 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 judges 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 appellants 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 judges
    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 Childrens 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 Childrens 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 Childrens 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 societys disapproval of the offenders
    conduct:
R. v. C.A.M.
, [1996] 1 S.C.R. 500, and, more particularly,
    societys response to child neglect:
R. v. Turner
(1995), 165 N.B.R.
    (2d) 11, affd (1997), 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] 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), 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>.


