Failing to Provide the Necessaries of Life (Offence): Difference between revisions

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''R v Naglik'', [http://canlii.ca/t/1fs0h 1993 CanLII 64] (SCC), [1993] 3 SCR 122{{perSCC|Lamer CJ}}</ref>
''R v Naglik'', [http://canlii.ca/t/1fs0h 1993 CanLII 64] (SCC), [1993] 3 SCR 122{{perSCC|Lamer CJ}}</ref>


'''Existence of Duty'''<br>
; Existence of Duty
Factors to consider whether the there is a duty, includes the severity of the injury and the knowledge that it occurred.<ref>
Factors to consider whether the there is a duty, includes the severity of the injury and the knowledge that it occurred.<ref>
''R v Alexander'', [http://canlii.ca/t/2fpn0 2011 ONSC 980] (CanLII){{perONSC|Molloy J}} cited in ''R v Turley'', [http://canlii.ca/t/fqmrp 2012 BCSC 397] (CanLII){{perBCSC|Stromberg-Stein J}}{{at|146}}<br>
''R v Alexander'', [http://canlii.ca/t/2fpn0 2011 ONSC 980] (CanLII){{perONSC|Molloy J}} cited in ''R v Turley'', [http://canlii.ca/t/fqmrp 2012 BCSC 397] (CanLII){{perBCSC|Stromberg-Stein J}}{{at|146}}<br>

Revision as of 17:24, 20 January 2019


Failing to Provide the Necessities of Life
s. 215 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 18 months incarceration
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to failing to provide the necessities of life are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings
Template:PleadingsHybridList
Offence
Section		 Offence
Type		 Crown Election Defence Election
s. 536(2)

Offences under s. 215 are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Release
Offence(s) Appearance Notice
by Peace Officer
s. 497		 Summons
by Judge or Justice
s. 508(1), 512(1), or 788		 Release by
Peace Officer
on Undertaking
s. 498, 499, and 501		 Release By
a Judge or Justice
on a Release Order
s. 515 to 519		 Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
s. 215 Template:ReleaseProfileAll

When charged under s. 215, the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

  • where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
  • where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
  • where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
Fingeprints and Photos

A peace officer who charges a person under s. 215 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible
s. 183		 Dangerous Offender
Designated Offence
s. 752		 Serious Personal
Injury Offence
s. 752		 AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 215

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Duty of persons to provide necessaries
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 sixteen 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.
Offence

(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 paragraph (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.
Punishment

(3) Every one who commits an offence under subsection (2)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
Presumptions

(4) ...

R.S., 1985, c. C-46, s. 215; 1991, c. 43, s. 9; 2000, c. 12, ss. 93, 95; 2005, c. 32, s. 11.

[annotation(s) added]

[* see Constitutionality, below]


– CCC

Proof of the Offence

Proving failure to provide necessities of life (parental) under s. 215(1)(a) should include: [1]

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit is a "parent", "foster parent", "guardian" or "head of a family" in relation to another person;
  5. ☐ the other person is a "child" under the age of 16 years, creating a "duty of care";
  6. ☐ the culprit "fails...to perform that duty" of providing "necessities of life":
    1. ☐ by permitting the other person to be "destitute or necessitous circumstances" or
    2. ☐ that "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", (215(2)(a))
  7. ☐ there is no lawful excuse for doing so

Proving failure to provide necessities of life (spousal) under s. 215(1)(b) should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit is a "spouse" or "common-law partner" to another person, creating a "duty of care"
  5. ☐ the culprit "fails...to perform that duty" of providing "necessities of life":
    1. ☐ by permitting the other person to be "destitute or necessitous circumstances" or
    2. ☐ that "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", (215(2)(a))
  6. ☐ there is no lawful excuse for doing so

Proving failure to provide necessities of life (disability) under s. 215(1)(c) should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit has another person "under his charge";
  5. ☐ the other person "is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and ... is unable to provide himself with necessaries of life", creating a duty of care;
  6. ☐ the culprit "fails...to perform that duty" of providing "necessities of life":
    1. ☐ that "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." (215(2)(b))
  7. ☐ there is no lawful excuse for doing so
  1. ↑ R v JAR, 2012 BCPC 195 (CanLII), per Giardini J, at para 87

Interpretation of the Offence

Purpose

The purpose of s. 215 is to establish a uniform minimum level of care to be provided to certain designated persons, a societal standard rather than a personal standard.[1]

Existence of Duty

Factors to consider whether the there is a duty, includes the severity of the injury and the knowledge that it occurred.[2]

Actus Reus and Mens Rea
Where the duty is found, the crown must prove:[3]

  1. the culprit acts or omissions which led to the failure to provide necessaries of life were a marked departure from the conduct of a reasonably prudent person in similar circumstances, and
  2. it was objectively foreseeable that the failure to provide necessaries would lead to a risk of danger to the life or permanent endangerment to the health of the person to whom the duty is owed.

The accused's conduct is to be considered on an objective standard and so the individual characteristics and experiences of the accused are not relevant.[4]

"Endangers"
"Endangers" refers to exposing someone to danger, harm or risk but does not connote actual injury or damage.[5]

The Crown does not need to prove that the accused knew the risk of danger or that they intended to expose the victim to any risk of danger.[6]


"necessaries of life"
"Necessaries of life" are necessaries that "tend to preserve life and not necessaries in their ordinary legal sense".[7] This includes protection from harm.[8]

The judge must consider "the serverity of the injury and the knowledge that it occurred".[9]

Failure to seek medical attention can be a failure to provide necessaries of life.[10]

Constitutionality

The phrase "proof of which lies upon him" violates s. 11(d) and so those words are to be struck out.[11]

  1. ↑ R v Naglik, 1993 CanLII 64 (SCC), [1993] 3 SCR 122, per Lamer CJ
  2. ↑ R v Alexander, 2011 ONSC 980 (CanLII), per Molloy J cited in R v Turley, 2012 BCSC 397 (CanLII), per Stromberg-Stein J, at para 146
  3. ↑ Turley, supra
  4. ↑ R v Lovett, 2017 ABQB 46 (CanLII), per Eidsvik J, at para 11
  5. ↑ also see R v Letourneau, 2007 CanLII 345 (ON SC), per Boyko J at paras 94 and 95
  6. ↑ Naglik, supra, at para 54
    Lovett, supra, at para 11
  7. ↑ R v JAR, 2012 BCPC 195 (CanLII), per Giardini J at para 82 R v Brooks (1902), 5 CCC 372 (BCCA), 1902 CanLII 90 (BC SC), per Drake J
  8. ↑ R v JF, 2007 ONCA 500 (CanLII), 222 CCC (3d) 474, per MacFarland JA, at paras 50‑51, aff’d R v JF 2008 SCC 60 (CanLII), per Fish J (6:1)
  9. ↑ Turley, supra, at para 146
    JAR, supra, at para 82
  10. ↑ R v Pertab, 2004 CanLII 47791 (ON SC), per Hill J at para 29
  11. ↑ R v Scott, 1996 CanLII 7083 (SK QB), per Blacklock Linn J
    R v Curtis, 1998 CanLII 1999 (ON CA), per Goudge JA

Presumptions

215.
...

Presumptions

(4) For the purpose of proceedings under this section,

(a) [Repealed, 2000, c. 12, s. 93]
(b) evidence that a person has in any way recognized a child as being his child is, in the absence of any evidence to the contrary, proof that the child is his child;
(c) evidence that a person has failed for a period of one month to make provision for the maintenance of any child of theirs under the age of sixteen years is, in the absence of any evidence to the contrary, proof that the person has failed without lawful excuse to provide necessaries of life for the child; and
(d) the fact that a spouse or common-law partner or child is receiving or has received necessaries of life from another person who is not under a legal duty to provide them is not a defence.

R.S., 1985, c. C-46, s. 215; 1991, c. 43, s. 9; 2000, c. 12, ss. 93, 95; 2005, c. 32, s. 11.


– CCC

Misc Definitions

"Child" is no longer defined in Part VIII.[1]

Section 214 defines "guardian" as including "a person who has in law or in fact the custody or control of a child".

The terms "abandon" and "expose" are defined in s. 214 and cover all of Part VIII. The terms "include":

(a) "a wilful omission to take charge of a child by a person who is under a legal duty to do so", and
(b) "dealing with a child in a manner that is likely to leave that child exposed to risk without protection;"

Section 2 defines:

  • "Mental disorder"
  • "common-law partner"
  1. ↑ Section 214 defining "child" was repealed in 2002

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 215), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election		 Maximum Penalty
s. 215 [failing to provide the necessities of life] Summary Election 18 months custody
s. 215 [failing to provide the necessities of life] Indictable Election 5 years custody

Offences under s. 215 are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is 18 months jail.

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions
Offence(s) Crown
Election		 Discharge
s. 730		 Suspended
Sentence
s. 731(1)(a)		 Stand-alone
Fine
s. 731(1)(b)		 Custody
s. 718.3, 787		 Custody and
Probation
s. 731(1)(b)		 Custody and
Fine
s. 734		 Conditional
Sentence (CSO)
s. 742.1
s. 215 any

For offences under s. 215, all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Factors

Factors include:[1]

  1. use of weapon or confinement (Nickel)
  2. use of potentially harmful substances such as drugs or alcohol (Nickel)
  3. involvement of third parties (Nickel)
  4. multiplicity of victims or offences over time (Nickel)
  1. ↑ R v Nickel, 2012 ABCA 158 (CanLII), per Watson JA, at para 36

Range

see also: Failing to Provide the Necessities of Life (Sentencing Cases)

The range for a first time offender where the offence concerns the neglect of the elderly will often be between 4 and 8 months.[1]

  1. ↑ R v Peterson, 2005 CanLII 37972 (ON CA), per Weiler JA, at para 59
    cf. R v LS, 2012 ONCA 203 (CanLII), per curiam, at para 1

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 215

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

History

See also: List of Criminal Code Amendments

215.
...

Punishment

(3) Every one who commits an offence under subsection (2) is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.

...
R.S., 1985, c. C-46, s. 215; 1991, c. 43, s. 9; 2000, c. 12, ss. 93, 95.


– CCC

See Also

Related Offences

References
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