



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. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22, 48; 2015, c. 13, s. 18.

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. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. C.O., 2022 ONCA 103

DATE: 20220204

DOCKET: C69144 & C69145

Doherty, Trotter and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.O. and N. P.

Appellants

Paul Calarco, for the appellant C.O.

Gideon McMaster, for the appellant N.P.

Jennifer Trehearne, for the respondent

Heard: June 4, 2021 by video conference

On appeal from the order of Justice Faye E. McWatt of the Superior Court of Justice, dated July 3, 2020, and reported at 2020 ONSC 4076, allowing an appeal from the acquittals entered on October 11, 2019, by Justice R. Silverstein of the Ontario Court of Justice.

Doherty J.A.:

I.



OVERVIEW

[1]

The appellants, C.O. and N.P., are common-law partners.
    J. is their daughter. She was four years old at the time of the relevant
    events.

[2]

In June 2017, the police executed a search
    warrant on the appellants apartment in Toronto. The search warrant was
    unrelated to the offences which are the subject of this appeal. The apartment
    was appallingly filthy and J.s personal hygiene was equally bad. The police
    took J. and turned her over to the child welfare authorities.

[3]

The appellants were charged with the failure to provide
    J. with the necessaries of life contrary to s. 215(2)(a)(i), and with forcibly
    confining J. contrary to s. 279(2) of the
Criminal Code
, R.S.C., 1985, c. C-46
. On the failure
    to provide necessaries charge, the Crown alleged the appellants failure to
    attend to J.s personal hygiene, coupled with the very unsanitary conditions in
    the apartment, put J.s health and safety at risk, and demonstrated a marked
    departure from the conduct of a reasonably prudent parent. On the unlawful
    confinement charge, the Crown alleged the appellants effectively locked J. in
    the filthy bedroom at night. The Crown maintained, that in doing so, the
    appellants went well beyond the lawful authority defence in s. 279(2) of the
Criminal
    Code
.

[4]

The Crown proceeded summarily. The trial judge
    acquitted the appellants on both counts.

[5]

The Crown appealed the acquittals to the
    Superior Court. The Summary Conviction Appeal Court Judge (the SCAJ) allowed
    the appeals and quashed the acquittals of both C.O. and N.P. She entered
    convictions against both on the necessaries of life charge and ordered a new
    trial on the unlawful confinement charge.
[1]

[6]

The appellants applied for, and obtained, leave
    to appeal to this court from the judgment of the SCAJ. They seek an order
    restoring the acquittals.

II.



THE FACTS

[7]

When the police entered the appellants
    apartment they found partially eaten food throughout the apartment and cigarettes
    and garbage all over the living room floor. Some of the closets were full of bags
    containing garbage. The apartment reeked of urine and feces. There were flies
    everywhere and the walls were covered with fly feces.

[8]

J.s bedroom was particularly dirty. Her pillow and
    her bed smelled of urine. There was food on the mattress and insects buzzing
    around the food. The police found urine and feces on J.s bedroom floor and a
    pile of old feces in her closet. J.s pants were wet with urine and covered in
    grime. She was so dirty she had to be bathed before she could be medically
    examined. One of the officers testified that it was impossible to breathe in
    J.s bedroom because the stench was so overpowering.

[9]

The evidence did not show exactly how long J.
    had been living in the conditions observed by the police when they executed the
    search warrant. The trial judge did, however, accept the evidence that the
    conditions in the apartment, 11 days before the warrant was executed, were much
    the same as the conditions at the time the warrant was executed. There was also
    some evidence the appellants and J. had lived in very unsanitary conditions at another
    residence, about two or three years earlier.

[10]

A psychologist who prepared a report for the
    Childrens Aid Society about four months after J.s apprehension described J.s
    cognitive functioning and motor skills as within the average range. J. showed
    lower levels of self-regulation and adaptive functioning as well as poor
    socialization. Her hyperactivity, impulsivity, and distractibility suggested
    she was at risk to develop an attention deficit disorder.

[11]

It is unclear whether the psychologist was aware
    of the extremely unsanitary conditions in J.s home. In any event, he was not
    asked to offer any opinion as to what effect, if any, those conditions had on J.s
    psychological status.

[12]

J.s great-grandfather described J. as a bubbly,
    energetic and happy child before her apprehension by the authorities. He had
    been in the appellants apartment about four months before the police executed
    the search warrant. He described the apartment as untidy. He also indicated
    that whenever he saw J. she seemed clean and well dressed.

[13]

J.s great-grandfather assumed custody of J. sometime
    after she was apprehended by the child welfare authorities. He took steps to improve
    her socialization and her interpersonal skills. She was diagnosed with ADHD
    after she started to live with her great-grandfather.

[14]

When the police executed the warrant they found J.s
    bedroom door closed. The doorknob on J.s bedroom was attached by a rope to the
    doorknob on the bathroom across the hall. The rope prevented J. from opening
    her door from the inside. Js inability to open her bedroom door when the rope
    was in place led to the unlawful confinement charge.

[15]

Neither appellant testified but both gave
    statements to the police that were admitted at trial. They explained that J. s
    door was tied shut during the evening because she had a tendency to leave her
    bedroom and get into things in the apartment, including laundry detergent and other
    dangerous materials. Sometimes, J. would scatter the material about her bedroom,
    but sometimes she would put it in her mouth. The appellants told the police they
    had taken J. to the Poison Control Centre more than once.

[16]

According to the appellants, if J. needed to go
    to the bathroom during the night she would call out and one of the appellants
    would come from their bedroom and take her to the bathroom. As the condition of
    J.s bedroom demonstrates, there were times when she urinated and defecated in
    her bedroom. She may not have called out to her parents, or she may have called
    out and the appellants either did not hear J., or chose to ignore her.

[17]

In their statements to the police, the
    appellants explained that J. was a very active and somewhat destructive child
    with a tendency to get into things, some of which were dangerous. She would
    also smear her own feces on the wall of her bedroom. The appellants insisted
    they repeatedly tried to clean up the mess J. made.

[18]

Although both appellants tended to understate
    the extremely unsanitary conditions in the apartment, and to fixate on J.s
    conduct when explaining those conditions, both ultimately acknowledged in their
    statements that they were responsible for letting matters get so out of hand.

[19]

There was no evidence that J. was malnourished,
    ill, or had been physically abused. There was also no evidence J. was ever locked
    in her bedroom when her parents were not in the apartment.

[20]

The appellants were extremely poor. They had
    real difficulty making ends meet and keeping food on the table.

III.



THE REASONS OF THE TRIAL JUDGE

(i)

The unlawful confinement charge

[21]

As indicated above, the unlawful confinement
    charge was based on the confinement of J. in her bedroom during the evenings. The
    trial judge accepted that the appellants confined J. in her bedroom. He recognized
    that the confinement of a child by a parent was justified if the confinement
    was in accordance with the best interests of the child:
R. v. Magoon
,
    2018 SCC 14, [2018] 1 S.C.R. 309, at para. 68. The best interests of the child
    can include health and safety concerns.

[22]

The trial judge also acknowledged that the confinement
    of a child by a parent for whatever purpose could not be justified if the
    conduct surpasses any acceptable form of parenting and reflects the
    exploitation of authority for an improper purpose:
Magoon
, at para. 68.

[23]

The trial judge, at para. 37, accepted the
    explanation offered by the appellants for confining J. in her bedroom at night.
    He acquitted on the unlawful confinement charge stating, at para. 39:

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.

(ii)

The failure to provide necessaries charge

[24]

The failure to provide necessaries charge arose
    out of the state of J.s personal hygiene and the extremely unsanitary
    conditions in the apartment. It was common ground that the appellants owed a legal
    duty under s. 215(1)(a) of the
Criminal Code
to provide J. with the
    necessaries of life. The Crown alleged the appellants failure to attend to
    J.s personal hygiene needs, and to maintain even minimally sanitary conditions
    in the apartment, constituted a failure to provide the necessaries of life,
    leaving J. in destitute or necessitous circumstances. The Crown further maintained
    that leaving four-year-old J. in a filthy room over many days demonstrated a
    marked departure from what a reasonable parent would do.

[25]

The trial judge held, that to establish the
    offence under s. 215(2)(a)(i), the Crown had to prove that J.s personal
    hygiene and the extremely unsanitary conditions in which she lived posed a risk
    of harm to J. The trial judge noted the Crown had led no evidence that J. was
    either harmed by the unsanitary living conditions or that those conditions
    created a risk of harm to J. The trial judge declined the Crowns invitation to
    take judicial notice that living in the extremely unsanitary conditions in the
    apartment posed a risk to J.s health. The trial judge said, at para. 63:

Although I personally strongly suspect that
    the unsanitary environment created by the defendants posed a non-trifling risk
    of harm to [J.], 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 notice
    of adjudicative facts is discretionary. [citation omitted]. Expert evidence on
    these questions was readily available to the Crown in this prosecution. Any
    public health professional could have addressed these issues.

[26]

The trial judge held that the failure to prove a
    risk of harm to J. necessitated the acquittal of the appellants on the failure
    to provide necessaries charge.

IV.



THE REASONS OF THE SCAJ

(i)

The unlawful confinement charge

[27]

The SCAJ concluded the trial judge failed to
    consider the conditions of J.s confinement when determining whether the
    confinement was a lawful restriction of J.s liberty. She held the appellants
    explanation that they had confined J. to protect her, even if true, was not
    determinative on the unlawful confinement charge. She said, at para. 64:

While the reason behind confining J. was
    relevant, the trial judge erred in not considering the condition of the room
    and the state of J. as factors in the analysis of whether this was an
    acceptable form of parenting. By simply accepting that the respondents were
    lawfully entitled to confine J. to prevent her from getting into cleaning
    supplies ignores the context in which she was confined.

[28]

The SCAJ quashed the acquittals on the unlawful
    confinement charge and ordered a new trial.

(ii)

The failure to provide necessaries charge

[29]

The SCAJ found that the trial judge made three
    errors in relation to the failure to provide necessaries charge. First, the
    trial judge erred in holding the Crown had to prove a risk of harm to J. as an
    essential element of a charge under s. 215(2)(a)(i): Reasons, at para. 26.
    Second, if proof of some risk of harm was required, the trial judge erred in failing
    to consider the risk of psychological harm to J.: Reasons, at paras. 49-50.
    Third, the trial judge erred in holding he needed evidence quantifying the
    degree of risk to J. posed by the extremely unsanitary environment in which she
    was living: Reasons, at paras. 56-57. The SCAJ concluded that even if, contrary
    to her conclusion, the Crown was required to prove the conditions posed a risk
    of harm to the child, the trial judges finding that the conditions were
    potentially harmful to J., was enough to establish a risk of harm to J. and justify
    a conviction under s. 215(2)(a)(i).

[30]

The SCAJ quashed the acquittals and entered
    convictions on the failure to provide necessaries charge.

V.



THE GROUNDS OF APPEAL

Ground #1: Did the SCAJ err in law in setting
    aside the acquittals on the unlawful confinement charge?

[31]

The appellants submit that the SCAJ ignored the
    trial judges finding that the appellants locked J. in her bedroom at night to
    prevent her from getting into the dangerous cleaning products kept in other
    parts of the apartment. Counsel submits that it was open to the trial judge to
    accept the appellants explanation, and to find, based on that explanation, that
    the appellants restricted J.s liberty to protect her health and safety. The
    appellants therefore acted within the lawful authority defence in s. 279(2).

[32]

Counsel further contends that the SCAJ made
    findings of fact that were unsupported by the evidence and used those findings
    to support her conclusion that J. was unlawfully confined. Counsel points to
    the following as unsupportable findings of fact made by the SCAJ:

·

J. had no access to the toilet at night;

·

J. was confined without access to food; and

·

J. was confined for disciplinary purposes.

[33]

There is merit to the appellants claim that the
    SCAJ went beyond her limited authority to review findings of fact and made
    factual findings that were unsupported by the evidence. I need not, however,
    wrestle those submissions to the ground.

[34]

The appeal, as it relates to the unlawful
    confinement convictions, can be resolved by addressing the argument that once
    the trial judge accepted the appellants evidence that they had confined J. to
    protect her health and safety, the confinement was lawful and it was
    unnecessary to consider the conditions of the confinement.

[35]

The lawful authority defence at s. 279(2) in
    cases involving parents and their children recognizes that parents are entitled,
    if not obligated, by virtue of their parental duties and responsibilities to
    confine their children in the best interests of the children. The lawful
    authority defence however extends only to conduct which is a reasonable
    exercise of parental authority done in furtherance of parental duties and
    responsibilities. Parental conduct that is abusive, harmful to the child, degrading
    or otherwise beyond the bounds of acceptable parenting cannot shelter under the
    lawful authority defence:
Magoon
,
at paras. 64-68;
R. v. Bottineau
, 2006 O.J. No. 1864 (Ont. S.C.), at
    para. 121, affd 2011 ONCA 194, 269 C.C.C. (3d) 227, at paras. 101-103, leave
    to appeal refused, [2011] S.C.C.A. No. 455.

[36]

It flows from the focus on the reasonableness of
    the parental exercise of authority that the lawful authority defence in s.
    279(2) as applied in the parent/child situation must address not only the
    reason behind the confinement but also the factual context in which the
    confinement occurs. The court must consider the purpose, nature, and extent of
    the confinement in determining whether that confinement was a lawful exercise
    of parental authority over the child:
R. v. Kematch,
2010
    MBCA 18, 252 C.C.C. (3d) 349, at para. 104.

[37]

The parents reason for imposing the restraint
    on the childs liberty will obviously be a key consideration. It is not however,
    the only relevant consideration. Other factors such as the location, manner,
    and duration of the confinement will also be potentially relevant, as no doubt
    will other considerations.

[38]

I agree with the SCAJ that the conditions of the
    room in which the appellants confined J. was relevant to whether the
    confinement was lawful. J.s room was the dirtiest room in a very dirty
    apartment. There is an obvious difference when measuring the legitimacy of the exercise
    of parental authority, between confining a young child at night in a normal
    bedroom in which the child routinely sleeps and confining that same child in that
    same room when the room has become more akin to a garbage can or a toilet than
    a bedroom.

[39]

A trier of fact could well conclude, even if the
    appellants acted out of legitimate concern for J.s safety, that locking her in
    a filthy, foul-smelling room, replete with human feces, decaying foods, and countless
    flies, was harmful, degrading and well beyond the bounds of acceptable
    parenting. The appellants failure to attend to J.s personal hygiene while she
    was locked in her room only added to the degrading nature of the confinement.

[40]

I would dismiss the appeal on the unlawful
    confinement charge.

Ground #2: Did the SCAJ err in quashing the
    acquittals on the failure to provide necessaries charge?

(a)

Is risk of harm an element of the offence
    created by s. 215(2)(a)(i)?

[41]

The trial judge and the SCAJ differed as to
    whether the Crown had to prove a risk of harm to J. to establish an offence
    under s. 215(2)(a)(i). For the reasons that follow, I agree with the trial judge
     risk of harm is an element of the offence. Indeed, on a close analysis of the
    elements of the offence in s. 215(2)(a)(i), it is plain that risk of harm as a
    consequence of the parents dereliction of duty is woven throughout the conduct
    and fault requirements of that offence.

[42]

Section 215 is found in the part of the
Criminal
    Code
headed Duties Tending to Preservation of Life. Among the duties
    identified in s. 215 is the obligation on a parent to provide the necessaries
    of life to a child:
Criminal Code
, s. 215(1)(a). The duty placed on
    parents  to provide the necessaries of life to their children  is intended to
    protect children under the charge of their parents. It requires parents to protect
    children from the harm to their health and safety associated with the failure
    to provide the necessaries of life to children. Clearly, the duty puts a
    positive obligation on parents to act to protect their children from harm. The
    duty is reinforced by criminal sanctions for the failure to perform the duty in
    some circumstances. As I will explain, protection of children from harm in the
    context of the duty created by s. 215(1)(a) must include protection of children
    from the risk of harm associated with the failure to provide necessaries: see
R.
    v. S.J.
, 2015 ONCA 97, 124 O.R. (3d) 595, paras. 64-65, leave to appeal
    refused, [2015] S.C.C.A. No. 146.

[43]

Section 215(2) creates two offences. Subsection
    (i), the charge under which the appellants were prosecuted, makes it an offence
    for a parent, who owes a duty to provide the necessaries of life to a child
    under 16, to fail to perform that duty, if the child is in destitute or
    necessitous circumstances.

[44]

Section 215(2)(a)(ii) is not directly in play on
    this appeal. It is, however, closely related to the offence created under
    subsection (i). An understanding of the elements of the offence under (ii) is
    important to a proper reading of the offence created in (i). Just as with subsection
    (i), the offence under subsection (ii) requires proof of the duty to provide
    the necessaries of life and proof of the failure to perform that duty.
    Subsection (ii) goes on, however, to require the Crown to prove one of three
    consequences flowing from the failure to provide necessaries. The Crown must
    prove:

·

the failure to perform the duty endangered the
    life of the child;

·

the failure to perform the duty caused permanent
    endangerment to the health of the child; or

·

the failure to perform the duty was likely to
    cause permanent endangerment to the health of the child.

[45]

As is evident from a reading of s. 215(2), the
    conduct forbidden by the two offences created by that section differs in one
    way. Under subsection (i), the Crown must prove the child was in destitute or
    necessitous circumstances when the parent failed to provide a necessary of
    life. Under the offence created by subsection (ii), the Crown must prove that
    the failure to provide the necessaries of life led to one of the three consequences
    to the child described in subsection (ii).

[46]

Although both offences are punishable by the
    same penalty, the consequences forbidden by subsection (ii) make it the more
    serious of the two offences. It is also the most commonly charged of the two offences.

[47]

I turn next to a more detailed consideration of
    the essential elements of the offence created by s. 215(2)(a)(i). I will begin
    with the three elements of the conduct component (the
actus reus
) and
    then turn to the fault component (the
mens rea
) of the offence.

[48]

The first element, the duty on the appellants to
    provide necessaries of life to J., is acknowledged.

[49]

The second element of the conduct component
    requires proof of a failure to provide the necessaries of life. That phrase
    is not defined in the
Criminal Code
.
    It is
probably impossible to provide an exhaustive list of the
    things that could constitute the necessaries of life. The meaning and scope of
    the phrase is informed by the purpose of the statutory duty created and
    depends, to some extent, on the specific circumstances. Necessaries of life
    capture those things which are integral to the health and safety of the child.
    Some specifics, like food, are self-evidently necessaries of life. Other
    things, like protection of children from physical harm, are also necessaries of
    life, but their meaning is situation specific. A necessary is something which,
    if not provided by the parent, will result in harm to the childs health or
    safety. Protection of a child from harm is itself a necessary of life:
R.
    v. Popen
(1981), 60 C.C.C. (2d) 232 (Ont. C.A.), at p. 240;
R. v.
    Peterson
(2005), 201 C.C.C. (3d) 220 (Ont. C.A.), at para. 34, leave to
    appeal refused, [2005] S.C.C.A. No. 539;
S.J.
, at paras. 50-51.

[50]

Defining the phrase necessaries of life by
    reference to those things necessary to protect a child from harm to the childs
    health or safety must include protection from
risk of that harm
if the
    sections protective purpose is to be served. A reading of the phrase
    necessaries of life that triggered the obligation to provide necessaries only
    after harm had occurred to the child, would neuter much of the protective
    purpose of the duty created by s. 215(1)(a). On this view, a parents duty to protect
    the child from harm would arise only after the parents failure to act had
    caused harm to the child. The protection would come too late for the child.

[51]

The duty to protect, which underlies the duty to
    provide the necessaries of life, does not demand that a parent protect a child
    from risk of all harms, no matter how minor or speculative. The harm in
    question must be reasonably foreseeable in the circumstances. One cannot
    meaningfully talk of a duty to protect from a harm in the absence of any
    reasonable basis to conclude there is at least a risk of that harm. The harm
    must also relate to the childs ongoing health and safety, and not merely the
    childs comfort or wellbeing. The duty imposed by s. 215(1)(a) is not to be the
    ideal parent. If the foreseeable harm to the child is minor and transitory, a
    failure to protect against that harm will not constitute a failure to provide
    the necessaries of life.

[52]

The third element of the conduct component of s.
    215(2)(a)(i) requires that the Crown demonstrate that the child was in destitute
    or necessitous circumstances when the parent failed to provide protection from
    harm. The words destitute or necessitous must mean more than a child who has
    not been provided with the necessaries of life. Otherwise, the requirement that
    the child be in destitute or necessitous circumstances would add nothing. The
    offence would consist solely of failing to provide the necessaries of life. On
    the language of s. 215, a parents failure to provide the necessaries of life,
    standing alone, is clearly not a crime.

[53]

There is relatively little authority on the
    meaning of the phrase destitute or necessitous circumstances: see
S.J.
,
    at para. 56. Both words refer to the childs condition when the parent fails in
    the duty to provide the necessaries of life. Both words refer to a child who is
    in need of the necessary that was not provided by the parent. The childs need is
    assessed by the impact of the failure to provide that necessary on the childs health
    and safety. If the failure to provide the alleged necessary harms the childs
    health or safety, or puts the childs health or safety at risk, it can be said the
    child is in need of protection from that harm, and therefore in destitute or necessitous
    circumstances: see
S.J.
, at para. 64.

[54]

I accept there is an overlap in subsection (i)
    between the definition of necessaries of life and the condition of being in
    destitute or necessitous circumstances. This overlap makes it somewhat
    difficult to parse out the separate elements of the conduct prohibited by
    subsection (i). However, given that neither offence in s. 215(2) makes it a
    crime to fail to provide the necessaries of life without more, the duty of the
    parent to provide the necessaries of life must be addressed separately from the
    further requirement that the child be in destitute or necessitous
    circumstances.

[55]

Even though the two elements must be considered
    separately, I would think that, in most cases, a child who is not provided with
    a necessary of life will be in necessitous circumstances. There may, however,
    be situations in which a parent has failed to provide a necessary, but that failure
    has not resulted in the child being harmed or facing the risk of harm. For
    example, a parent may fail to provide a child with food over several days.
    However, the child may be old enough, and have sufficient resources and
    independence, to attend to her own food needs. In those circumstances, while the
    parent has failed to provide a necessary of life, the child is not harmed or at
    risk of harm as a consequence of that failure. Consequently, the child is not in
    destitute or necessitous circumstances.
[2]

[56]

It is not clear to me how the SCAJ defined necessitous
    circumstances. Parts of her reasons (paras. 41-45) suggest that the SCAJ moved
    directly from a determination that J. had not been provided with the
    necessaries of life to a further finding that she was in necessitous
    circumstances. As outlined above, this approach effectively creates the offence
    of failing to provide the necessaries of life.

[57]

I am also satisfied that the SCAJ misinterpreted
    this courts judgment in
S.J.
At para. 64, Pepall J.A. said:

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).

[58]

The SCAJ described the above passage as
    referable to the purpose of the offence creating provisions in s. 215(2).
    With respect, in this part of her reasons, Pepall J.A. was identifying the
    elements of the two offences and differentiating between the elements required
    by each offence. Her description of necessitous circumstances, as referable
    to a child who was at risk of harm, was a description of the essential
    element of the offence under subsection (i), which differentiated that offence
    from the offence under subsection (ii). The SCAJ was obliged to accept and
    apply the interpretation of the elements of the offence created by subsection
    (i), provided by Pepall J.A.

[59]

The SCAJ also rejected the submission that risk
    of harm was implicit in the requirement of necessitous circumstances because,
    in her view, that interpretation would make s. 215(2)(a)(i) somewhat
    redundant: Reasons, at para. 39. The SCAJ viewed the requirement that the
    Crown prove risk of harm to the child under subsection (i) as being very
    similar to the requirement in subsection (ii) that the Crown prove one of the three
    consequences identified in that provision.

[60]

I cannot agree. The offence created by
    subsection (ii) speaks to specific identified consequences to the child. Those
    consequences are all potentially different from, and more serious than, the
    risk to the childs health or safety required to show necessitous
    circumstances. I see no difficulty distinguishing between the two offences.

[61]

The SCAJ also rejected the trial judges
    interpretation of necessitous circumstances, in part, because she read the
    trial judge as requiring that the Crown prove the circumstances were extremely
    serious before the child could be said to be in necessitous circumstances:
    Reasons, at paras. 32-35. With respect, the SCAJ misread the trial judges
    reasons. He rejected an interpretation of serious harm in favour of one that
    would require the Crown to prove some risk of harm: Reasons, at paras. 49-55. The
    SCAJs misreading of the trial judges reasons may explain why the SCAJ saw the
    trial judges interpretation as creating a significant overlap or redundancy in
    the two offences created by s. 215(2).

[62]

In addition to the conduct component (
actus
    reus
) of the offence, the Crown is also required to prove a fault
    component (
mens rea
). The Supreme Court of Canada has fashioned a constitutionally-compliant
    level of objective conduct-based fault premised on a comparison, using the marked
    departure metric, between the accuseds conduct and the conduct of a reasonably
    prudent parent.

[63]

The approach to fault finding under s. 215(2)(a)
    is set out by Lamer C.J. in
R. v. Naglik
, [1993] 3 S.C.R. 122, at p.
    143. That case involved a charge under s. 215(2)(a)(ii). The Chief Justice
    described the fault component in these terms:

Section 215(2)(a)(ii) punishes a marked
    departure from the conduct of a reasonably prudent parent in circumstances where
    it was objectively foreseeable that the failure to provide the necessaries of
    life would lead to a risk of danger to the life, or a risk of permanent
    endangerment to health, of the child.

[64]

Adapting the language of Lamer C.J. to the
    offence created by s. 215(2)(a)(i), the fault component consists of conduct
    which shows a marked departure from the conduct of a reasonably prudent parent in
    circumstances in which it was objectively foreseeable the child was in
    necessitous circumstances. That is, circumstances in which the childs health
    or safety were at risk and the child was in need of protection. The requirement
    that the Crown prove, as part of the harm element, that it was reasonably
    foreseeable to a prudent parent that the child was in need of protection,
    dictates that there must be some foreseeable risk of harm. Foreseeable risk of
    harm is, therefore, integral to the fault requirement for the offences created
    by s. 215(2)(a).

[65]

In summary, risk of harm to the childs health
    or safety informs both the scope of the duty to provide the necessaries of life
    in a given circumstance, and the childs need for those necessaries.
    Furthermore, the objective fault requirement inevitably leads to a risk
    assessment on the way to determining whether the accused conduct constituted a
    marked departure from the conduct of a reasonably prudent parent in the same circumstances.

(b)

Did the trial judge err in refusing to take
    judicial notice of the risk posed to J.s health and safety?

[66]

The Crown chose not to lead any evidence, expert
    or otherwise, about the risk posed to J.s health and safety by her living
    conditions. Instead, the Crown asked the judge to take judicial notice that the
    conditions posed a risk to J.s health and safety. The trial judge was prepared
    to take judicial notice that bacteria from human waste caused disease. The
    trial judge was not, however, prepared to go any further. Specifically, he was
    not prepared to quantify the risk of disease or take judicial notice that the
    risk of harm to J., as a result of the conditions in the apartment, was beyond
de minimis
: Reasons, para. 58.

[67]

The trial judge referred to the leading
    authorities on judicial notice. He correctly pointed out that taking judicial
    notice was ultimately an exercise in the discretion of the trial judge. He also
    observed that trial judges should be less inclined to take judicial notice of
    adjudicative facts at the centre of the dispute. The nature of the risk, if
    any, posed to J.s health and safety by her living conditions was at the very
    heart of the factual dispute in this trial.

[68]

I share the trial judges surprise that the
    Crown did not lead expert evidence about specific health threats faced by J. as
    a consequence of her living conditions. I also acknowledge this court owes
    deference to the trial judges conclusion that he would not resort to judicial
    notice. The trial judges decision to not take judicial notice is not, however,
    beyond appellate review.

[69]

With respect, I think the trial judge took an
    unreasonably narrow view of the application of judicial notice in this case. He
    did so by focusing individually on factors relevant to J.s living conditions.
    The question was not whether he could take judicial notice that the presence of
    feces of a certain age posed a risk to J.s health, the question was whether
    the totality of the conditions described posed a risk. The trial judges focus
    on individual items referenced in the description of J.s living conditions led
    him to fail to consider whether he could take judicial notice of a risk to J.s
    health posed by the overall conditions.

[70]

Second, the trial judge considered whether to
    take judicial notice in the abstract, rather than by contextualizing that
    question, having regard to certain unchallenged facts. There were at least
    three features of the evidence that the trial judge should have specifically
    factored into his determination of the extent to which he could take judicial
    notice of the risk to J.s health posed by her living conditions.

[71]

First, and I think most importantly, J. was four
    years old. The trial judge should have taken judicial notice that a young child,
    like J., is much more susceptible to bacteria-borne diseases than is an adult,
    not only for physiological reasons, but because a four-year-old child is ill-equipped,
    emotionally and intellectually, to take any steps to reduce the risks posed by
    those conditions.

[72]

Second, J. was not exposed to the unsanitary
    conditions momentarily or intermittently. J. lived in these conditions for at
    least 11 days. Nor does the evidence suggest, that but for the arrival of the
    police on another matter, anything would have changed. There is no reason to
    think J. would not have continued to live in these conditions. In considering
    whether to take judicial notice, the trial judge should have taken into account
    the length and nature of J.s exposure to the bacteria-infected conditions.

[73]

Third, there was unchallenged evidence that,
    while J. was in her filthy room, she would smear her hands with feces and rub
    them on the wall. She also ate in her room. The trial judge should have taken
    into account, when deciding whether to take judicial notice, the nature of the
    activities engaged in by J. and whether those activities substantially increased
    the risks associated with J.s living conditions.

[74]

I am satisfied that had the trial judge considered
    the cumulative effect of the conditions in J.s room, and had the trial judge
    contextualized his judicial notice assessment by reference to J.s age, the
    length and nature of her exposure to the conditions, and the activities in
    which she was engaged while in those conditions, he would inevitably have taken
    judicial notice that J.s personal hygiene and her living conditions posed a
    real risk to her health.

(c)

Will psychological harm suffice under s.
    225(2)(a)(i)?

[75]

It is not necessary to decide this question to
    resolve this appeal. Nor do I think the question should be decided on this
    record. There is virtually no evidence that could connect any psychological
    difficulty J. might have with her living conditions at the relevant time. The psychologist
    who saw J. did not draw any such connection.

(d)

Could the appellants poverty provide a defence?

[76]

Both appellants suggest that their poverty had
    something to do with their culpability. The appellants were poor. However,
    there was no evidence suggesting the appellants poverty prevented them from
    providing the necessaries of life in issue here.

Conclusion

[77]

I would dismiss the appeals. I would remit the
    matter to the trial court for sentencing.

Released: February 4, 2022 DD

Doherty
    J.A.

I
    agree. G.T. Trotter J.A.

I
    agree Thorburn J.A.





[1]
The SCAJ ordered a new trial on the confinement charge as the Crown
    did not seek a conviction on that charge. The Crown also indicated that if a
    conviction was entered on the failure to provide necessaries charge, it would
    not proceed with the re-trial on the unlawful confinement charge.



[2]

Section 215(4)(d) creates an exception to the requirement
    that the Crown prove the child was necessitous. Even if the child is being
    provided with necessaries by another person, the parent will still be
    convicted. While s. 215(4)(d) eliminates many of the situations in which a
    child would not be necessitous, even though not provided with the necessaries
    of life by their parents, the existence of the exception does confirm, to some
    extent, the interpretation of the phrase destitute or necessitous circumstance
    advanced above, otherwise there would be no need for the exception.


