Child Neglect

• Author: Lisa Joyal/Jennifer Gibson/Lisa Henderson/David Berg/Kasandra Cronin
• Pages: 333-384

333

Child Neglect

9

I. Introduction ............................................. 334

II. The Offence of Failing to Provide the Necessaries of Life ......... 334

A. Overview of the Statutory Framework ................... 334

B. Actus Reus ......................................... 339

C. Objective Mens Rea ................................. 351

D. The Presumptions ................................... 359

E. Defences .......................................... 360

III. Offences of Criminal Negligence ............................. 363

A. Overview of the Statutory Framework ................... 363

B. Actus Reus ......................................... 366

C. Objective Mens Rea ................................. 375

D. Defences to Criminal Negligence ....................... 379

© [2023] Emond Montgomery Publications. All Rights Reserved.

Prosecuting and Defending Oences Against Children

I. Introduction

Child neglect is one of the most common forms of child abuse in Canada.1 This form

of abuse covers a wide scope and includes a child’s deprivation of the food, shel-

ter, medical care, supervision, or protection that they need.2 Child neglect may be

addressed under the civil law through child welfare and protection legislation, but it

may also be addressed under the criminal law through prosecution of the negligent

acts and omissions of caregivers and other adults.

An “objective” mental fault requirement has been instituted for every offence

provision under the Criminal Code that is used to prosecute child neglect. Depend-

ing on the particular offence provision, the Crown is required to prove a “marked

departure” or “marked and substantial departure” from the conduct of a “reasonably

prudent person” in all of the circumstances. Not surprisingly, the most common legal

issue that arises in criminal cases of child neglect is whether the Crown has proven

this high legal threshold for liability.

This chapter focuses on crimes of child negligence, beginning with a discussion of

the offence of “failing to provide the necessaries of life.” The chapter then reviews

the offences of “criminal negligence causing bodily harm,” “criminal negligence

causing death,” and “manslaughter by criminal negligence.” Throughout the chapter,

various potential defences are considered.

II. The Oence of Failing to Provide

the Necessaries of Life

A. Overview of the Statutory Framework

Section 215 of the Criminal Code establishes the offence of “failing to provide the

necessaries of life.”3 Section 215 states:

1 Public Health Agency of Canada, Family Violence: How Big Is the Problem in Canada? (Ottawa:

Public Health Agency of Canada, 2018), online: <https://www.canada.ca/en/public-health/

services/health-promotion/stop-family-violence/problem-canada.html>; Public Health

Agency of Canada, Canadian Incidence Study of Reported Child Abuse and Neglect—2008: Major

Findings (Ottawa: Public Health Agency of Canada, 2010), online (pdf ): <http://cwrp.ca/

sites/default/files/publications/en/CIS-2008-rprt-eng.pdf>.

2 Canada, Department of Justice, Child Abuse Is Wrong: What Can I Do? (Ottawa: Department

of Justice, 2021), online: <http://www.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/caw-mei/p7.html>.

3 In R v Stephan, 2018 SCC 21, rev’g 2017 ABCA 380, the Supreme Court of Canada allowed an

appeal against the convictions of two accused parents for failing to provide the necessaries of

life to their 18-month-old son, who had died of meningitis. In overturning the convictions and

ordering a new trial, the Court held that the trial judge had conflated the actus reus and mens

rea of the offence and did not sufficiently explain the concept of “marked departure” in a way

the jury could understand and apply. In R v Stephan, 2019 ABQB 715, a trial judge acquitted

the accused parents following their second trial. However, the Crown appealed the acquittals

to the Alberta Court of Appeal, and at 2021 ABCA 82, the Court allowed the Crown’s appeal

and ordered a third trial. Leave to appeal to SCC dismissed, [2021] SCCA No 161 (QL).

© [2023] Emond Montgomery Publications. All Rights Reserved.

Chapter 9 Child Neglect 

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 person commits an offence who, being under a legal duty within the meaning

of subsection (1), fails without lawful excuse 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 circum-

stances, 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 endan-

gered 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.

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.

© [2023] Emond Montgomery Publications. All Rights Reserved.