R. v. A.D.H., (2013) 444 N.R. 293 (SCC)

• Judge: McLachlin, C.J.C., Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 11, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2013), 444 N.R. 293 (SCC);2013 SCC 28;295 CCC (3d) 376;[2013] 2 SCR 269;358 DLR (4th) 1

R. v. A.D.H. (2013), 444 N.R. 293 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] N.R. TBEd. MY.016

Her Majesty the Queen (appellant) v. A.D.H. (respondent) and Attorney General of Ontario (intervenor)

(34132; 2013 SCC 28; 2013 CSC 28)

Indexed As: R. v. A.D.H.

Supreme Court of Canada

McLachlin, C.J.C., Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.

May 17, 2013.

Summary:

The accused gave birth to a baby boy while using the toilet in a Wal-Mart store. Thinking the child was dead, she left the child in the toilet. The child was in fact alive and was quickly attended to by others. The accused was charged with unlawfully abandoning a child under the age of 10 years old and thereby endangering his life contrary to s. 218 of the Criminal Code.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2009), 335 Sask.R. 173, found the accused not guilty. The trial judge believed the accused's claim that she was not aware of her pregnancy until the child appeared and that she believed the child was dead when she left him. The trial judge held that subjective fault was required. The trial judge found that the Crown had not proven beyond a reasonable doubt that the accused intended to abandon her child. The Crown appealed.

The Saskatchewan Court of Appeal, in a decision reported at (2011), 366 Sask.R. 123; 506 W.A.C. 123, dismissed the appeal. Richards, J.A. (Smith, J.A., concurring) agreed with the trial judge that s. 218 of the Code required subjective fault. Ottenbreit, J.A., concluded that s. 218 only required an objective fault element, but that an honest and reasonable mistake of fact could be a defence. He found that the accused had acted on the basis of the mistaken but reasonable belief that her child was dead and concluded that the trial judge's verdict of acquittal should be upheld on that basis. The Crown appealed. The Crown submitted that the fault element of the child abandonment offence should be assessed "objectively" according to the "penal negligence" standard.

The Supreme Court of Canada dismissed the appeal. The majority, in reasons by Cromwell, J., concluded that the fault element was subjective and the trial judge did not err in acquitting the accused on the basis that the fault element had not been proved. Moldaver, J. (Rothstein, J., concurring) also upheld the accused's acquittal, but for reasons that differed from those of Justice Cromwell. Moldaver, J., held that penal negligence was sufficient to satisfy the fault component of s. 218 as it related to the consequences of abandoning or exposing a child. However, Moldaver, J., concluded that the accused's belief that the child was dead at birth was not only honestly held but reasonable and she was entitled to be acquitted.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 32

General principles - Mens rea or intention - Proof of mens rea - [See first and second Criminal Law - Topic 1467 ].

Criminal Law - Topic 35

Mens rea or intention - Presumption of requirement of mens rea - The Supreme Court of Canada discussed the presumption that Parliament intended crimes to have a subjective fault element - The court stated that "Presumptions of legislative intent are not self-applying rules. They are instead principles of interpretation. They do not, on their own, prescribe the outcome of interpretation, but rather set out broad principles that ought to inform it. As Professor Sullivan has observed, presumptions of legislative intent, such as this one, serve as a way in which the courts recognize and incorporate important values into the legal context in which legislation is drafted and should be interpreted. These values both inform judicial understanding of legislation and play an important role in assessing competing interpretations ... Parliament must be understood to know that this presumption will likely be applied unless some contrary intention is evident in the legislation. As for the role of the presumption of subjective fault in assessing competing interpretations, it sets out an important value underlying our criminal law. It has been aptly termed one of the 'presumptive principles of criminal justice' ... While the presumption must - and often does - give way to clear expressions of a different legislative intent, it nonetheless incorporates an important value in our criminal law, that the morally innocent should not be punished. ... Viewed in this way, the presumption of subjective fault is not an outdated rule of construction which is at odds with the modern approach to statutory interpretation repeatedly endorsed by the Court. On the contrary, the presumption forms part of the context which the modern approach requires to be considered" - See paragraphs 25 to 28.

Criminal Law - Topic 36.1

General principles - Mens rea or intention - Mistake of fact - [See first Criminal Law - Topic 1467 ].

Criminal Law - Topic 1467

Offences against person and reputation - Abandoning child - Mens rea - The accused gave birth to a baby boy while using the toilet in a Wal-Mart store - Thinking the child was dead, she left the child in the toilet - The child was in fact alive and was quickly attended to by others - The accused was charged with unlawfully abandoning a child under the age of 10 years old and thereby endangering his life contrary to s. 218 of the Criminal Code - The trial judge found the accused not guilty - The trial judge believed the accused's claim that she was not aware of her pregnancy until the child appeared and that she believed the child was dead when she left him - The trial judge held that subjective fault was required - The trial judge found that the Crown had not proven beyond a reasonable doubt that the accused intended to abandon her child - The Crown appealed - The Saskatchewan Court of Appeal dismissed the appeal - Richards, J.A. (Smith, J.A., concurring) agreed with the trial judge that s. 218 of the Code required subjective fault - Ottenbreit, J.A., concluded that s. 218 only required an objective fault element, but that an honest and reasonable mistake of fact could be a defence - He found that the accused had acted on the basis of the mistaken but reasonable belief that her child was dead and concluded that the acquittal should be upheld on that basis - The Crown appealed - The Crown submitted that the fault element of the child abandonment offence should be assessed "objectively" according to the "penal negligence" standard - The Supreme Court of Canada dismissed the appeal - The majority, in reasons by Cromwell, J., concluded that the text, context and purpose of s. 218 of the Code showed that subjective fault was required - The trial judge therefore did not err in acquitting the accused on the basis that the fault element had not been proved - Moldaver, J. (Rothstein, J., concurring) also upheld the accused's acquittal, but for reasons that differed from those of Justice Cromwell - Moldaver, J., held that penal negligence was sufficient to satisfy the fault component of s. 218 as it related to the consequences of abandoning or exposing a child - However, Moldaver, J., concluded that the accused's belief that the child was dead at birth was not only honestly held but reasonable and she was entitled to be acquitted.

Criminal Law - Topic 1467

Offences against person and reputation - Abandoning child - Mens rea - Section 218 of the Criminal Code prohibited abandoning or exposing a child under the age of 10 years so that the child's life is (or is likely to be) endangered, or its health is (or is likely to be) permanently injured - The Crown submitted that the fault element of the child abandonment offence should be assessed "objectively" according to the "penal negligence" standard - The Supreme Court of Canada held that the text, scheme and purpose of the provision supported the view that subjective fault was required - To the extent that the Parliament's intent was unclear, the presumption that Parliament intended crimes to have a subjective fault element ought to have its full operation in this case - The legislative evolution of the child abandonment offence was, if anything, more supportive than not of the view that subjective fault was required - Viewed in the light of the broad scope of potential liability under s. 218, the requirement for subjective fault served an important purpose of ensuring that the reach of the criminal law did not extend too far - While the conduct and people that fell within s. 218 were broadly defined, the requirement for subjective fault ensured that only those with a guilty mind were punished - Three main points emerged from a study of the text and scheme of the provisions - First, the words "abandon", "expose" and "wilful" suggested a subjective fault requirement - Second, the use of the word "likely" in this context did not suggest an objective fault requirement - Third, what was absent from the text of s. 218 and the broader scheme in which it appeared strongly suggested that subjective fault was required - The text of the child abandonment provision did not contain any of the language typically employed by Parliament when it intended to create an offence of objective fault - See paragraphs 20 to 75.

Criminal Law - Topic 1467

Offences against person and reputation - Abandoning child - Mens rea - Section 218 of the Criminal Code prohibited abandoning or exposing a child under the age of 10 years so that the child's life is (or is likely to be) endangered, or its health is (or is likely to be) permanently injured - At issue was whether the fault element of the offence was to be assessed subjectively or objectively - The Crown submitted that the fault element of the child abandonment offence should be assessed "objectively" according to the "penal negligence" standard - The court in R. v. Naglik (SCC) had held that the offence of failing to provide the necessaries of life created by s. 215 of the Code was one of objective fault and the Crown submitted that the same reasoning should apply to the abandonment offence under s. 218 - The Supreme Court of Canada rejected the Crown's argument and concluded that subjective fault was required - The s. 215 offence was structured entirely differently than the s. 218 offence - Unlike the s. 218 child abandonment offence, the s. 215 necessaries of life offence was defined in terms of failure to perform specified legal duties - What was more, those specified legal duties arose out of specified relationships between the person owing the duty and the person to whom the duty was owed - While failure to perform a duty imposed by law on persons in particular relationships was the essence of the offence created by s. 215, that was not the case with respect to child abandonment under s. 218 - The clearly different structures of the text of s. 218 on one hand, and the duty-based offence in s. 215 on the other, supported the view that the s. 218 offence was different - Where Parliament intended to base an offence on violation of a duty, s. 215 showed that it could find the language to do so clearly - None of that sort of language appeared in s. 218 - See paragraphs 64 to 72.

Criminal Law - Topic 1467

Offences against person and reputation - Abandoning child - Mens rea - Section 218 of the Criminal Code prohibited abandoning or exposing a child under the age of 10 years so that the child's life is (or is likely to be) endangered, or its health is (or is likely to be) permanently injured - At issue was whether the fault element of the offence was to be assessed subjectively or objectively - The Crown submitted that the fault element of the child abandonment offence should be assessed "objectively" according to the "penal negligence" standard because that standard applied to the s. 215 offence of failing to provide the necessaries of life - The Supreme Court of Canada held that subjective fault was required for the s. 218 offence - The court stated, inter alia, "The distinct structure and wording of the child abandonment offence also counter any suggestion that its placement in the same part of the Code with the sections creating legal duties (i.e. ss. 215 to 217.1) informs the nature of the required fault element. The placement of a provision within the Code or the elements of other offences in the same part of the Code do not often assist in determining the nature of its fault requirement and are particularly unhelpful here: ... While the provision is placed under the heading 'Duties Tending to Preservation of Life', the marginal note of s. 218, 'Abandoning child' is the only one of the five sections under this heading which does not have the word "duty" in its marginal note. If anything, this tends to underline that it is different from the other provisions. The child abandonment offence has the same range of possible punishments as does the objective fault offence of failing to provide necessaries in s. 215. However, the range of punishments says little about the required fault element. ... I do not find any help in defining the fault requirement of the child abandonment offence that other offences which may be punished with the same or even greater periods of imprisonment require only objective fault" - See paragraphs 71 to 72.

Statutes - Topic 1845

Interpretation - Intrinsic aids - Titles, headings and section numbers - Headings and marginal notes - [See fourth Criminal Law - Topic 1467 ].

Statutes - Topic 2251

Interpretation - Presumptions and rules in aid - General - [See Criminal Law - Topic 35 ].

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - [See Criminal Law - Topic 35 ].

Statutes - Topic 2614

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Legislative or statutory context - [See second Criminal Law - Topic 1467 ].

Statutes - Topic 8410

Penal statutes - General principles - Interpretation of - [See Criminal Law - Topic 35 ].

Cases Noticed:

R. v. Daviault (H.), [1994] 3 S.C.R. 63; 173 N.R. 1; 64 Q.A.C. 81, refd to. [paras. 16, 150].

R. v. L.M., [2000] O.J. No. 5284 (C.J.), refd to. [para. 18].

R. v C.C.D., [1998] O.J. No. 4875 (C.J Prov. Div.), refd to. [para. 18].

R. v. Reedy (No. 2) (1981), 60 C.C.C.(2d) 104 (Ont. D.C.J.C.C.), refd to. [para. 18].

R. v. McIntosh, [2008] O.J. No. 5742 (C.J.), refd to. [para. 18].

R. v. Bokane-Haraszt, 2007 ONCJ 228, refd to. [para. 18].

R. v. Christiansen, [1997] O.J. No. 5733 (C.J. Prov. Div.), refd to. [para. 18].

R. v. J.R., 2000 CarswellOnt 5325 (C.J.), refd to. [para. 28].

R. v. Gosset, [1993] 3 S.C.R. 76; 157 N.R. 195; 57 Q.A.C. 130, refd to. [para. 19].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 19].

R. v. Pappajohn, [1980] 2 S.C.R. 120; 32 N.R. 104, refd to. [para. 20].

Sweet v. Parsley, [1970] A.C. 132 (H.L.), refd to. [para. 20].

Watts v. R., [1953] 1 S.C.R. 505, refd to. [para. 23].

R. v. Rees, [1956] S.C.R. 640, refd to. [para. 23].

Beaver v. R., [1957] S.C.R. 531, refd to. [para. 23].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 23].

R. v. Prue; R. v. Baril, [1979] 2 S.C.R. 547; 26 N.R. 470, refd to. [para. 23].

R. v. Bernard, [1988] 2 S.C.R. 833; 90 N.R. 321; 32 O.A.C. 161, refd to. [para. 23].

R. v. Martineau, [1990] 2 S.C.R. 633; 112 N.R. 83; 109 A.R. 321, refd to. [para. 23].

R. v. Théroux (R.), [1993] 2 S.C.R. 5; 151 N.R. 104; 54 Q.A.C. 184, refd to. [para. 23].

R. v. Lucas (J.D.) et al., [1998] 1 S.C.R. 439; 224 N.R. 161; 163 Sask.R. 161; 165 W.A.C. 161, refd to. [para. 23].

R. v. Beatty (J.R.), [2008] 1 S.C.R. 49; 371 N.R. 119; 251 B.C.A.C. 7; 420 W.A.C. 7; 2008 SCC 5, refd to. [para. 27].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 30].

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

R. v. White (1871), L.R. 1 C.C.R. 311, refd to. [para. 32].

R. v. Downes (1875), 1 Q.B.D. 25, refd to. [para. 33].

R. v. Senior, [1899] 1 Q.B. 283, refd to. [para. 34].

R. v. Renshaw (1847), 2 Cox C.C. 285, refd to. [para. 39].

R. v. Hogan (1851), 2 Den. 277, refd to. [para. 39].

R. v. Falkingham (1870), L.R. 1 C.C.R. 222, refd to. [para. 39].

R. v. Boulden (1957), 41 Cr. App. R. 105, refd to. [para. 46].

Davis, Re (1909), 18 O.L.R. 384, refd to. [para. 46].

R. v. Buzzanga (1979), 25 O.R.(2d) 705, refd to. [para. 49].

R. v. L.B. (2011), 274 O.A.C. 365; 2011 ONCA 153, leave to appeal refused [2011] 4 S.C.R. x; 428 N.R. 390; 291 O.A.C. 398, refd to. [para. 49].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [para. 51].

R. v. Hundal (S.), [1993] 1 S.C.R. 867; 149 N.R. 189; 22 B.C.A.C. 241; 38 W.A.C. 241, refd to. [para. 57].

R. v. Roy (R.L.), [2012] 2 S.C.R. 60; 430 N.R. 201; 321 B.C.A.C. 112; 547 W.A.C. 112; 218 C.C.C.(3d) 433; 2012 SCC 26, refd to. [para. 57].

R. v. Finlay, [1993] 3 S.C.R. 103; 156 N.R. 374; 113 Sask.R. 241; 52 W.A.C. 241, refd to. [para. 58].

R. v. DeSousa, [1992] 2 S.C.R. 944; 142 N.R. 1; 56 O.A.C. 109, refd to. [para. 59].

R. v. Creighton, [1993] 3 S.C.R. 3; 157 N.R. 1; 65 O.A.C. 321, refd to. [para. 59].

R. v. Chartrand (J.), [1994] 2 S.C.R. 864; 170 N.R. 161; 74 O.A.C. 257, refd to. [para. 60].

R. v. Anderson, [1990] 1 S.C.R. 265; 105 N.R. 143; 64 Man.R.(2d) 161, refd to. [para. 61].

R. v. J.F., [2008] 3 S.C.R. 215; 380 N.R. 325; 242 O.A.C. 338; 2008 SCC 60, refd to. [para. 61].

R. v. Naglik, [1993] 3 S.C.R. 122; 157 N.R. 161; 65 O.A.C. 161, consd. [para. 63].

R. v. Holzer (1988), 63 C.R.(3d) 301 (Alta. Q.B.), refd to. [para. 69].

R. v. Hinchey (M.F.) and Hinchey (B.A.), [1996] 3 S.C.R. 1128; 205 N.R. 161; 147 Nfld. & P.E.I.R. 1; 459 A.P.R. 1, refd to. [para. 88].

R. v. Lohnes, [1992] 1 S.C.R. 167; 132 N.R. 297; 109 N.S.R.(2d) 145; 297 A.P.R. 145, refd to. [para. 92].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 92].

R. v. Browne (D.) (1997), 100 O.A.C. 152; 33 O.R.(3d) 775, refd to. [para. 110].

R. v. Nicholls (1874), 13 Cox C.C. 75, refd to. [para. 112].

R. v. Instan, [1893] 1 Q.B. 450, refd to. [para. 112].

R. v. Salmon (1880), 6 Q.B.D. 79; refd to. [para. 112].

R. v. Coyne (1958), 124 C.C.C. 176 (N.B.C.A.), refd to. [para. 112].

R. v. Miller, [1983] 1 All E.R 978 (H.L.), refd to. [para. 112].

R. v. Leary, [1978] 1 S.C.R. 29; 13 N.R. 592, refd to. [para. 149, footnote 4].

R. v. George, [1960] S.C.R. 871, refd to. [para. 149, footnote 4].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 150]

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 214, sect. 215, sect. 218 [Appendix].

Authors and Works Noticed:

Colvin, Eric and Anand, Sanjeev, Principles of Criminal Law (3rd Ed. 2007), p. 141 [para. 112].

Côté, Pierre-André, in collaboration with Beaulac, Stéphane and Devinat, Mathieu, The Interpretation of Legislation in Canada (4th Ed. 2011), p. 470 [para. 26].

Cross, Rupert, Statutory Interpretation (3rd Ed. 1995), pp. 165 to 167 [para. 26].

Driedger, Elmer A., Construction of Statues (2nd Ed. 1983), p. 87 [para. 19].

Manning, Morris and Sankoff, Peter, Manning, Mewett & Sankoff: Criminal Law (4th Ed. 2009), pp. 148 [para. 20]; 149 [para. 20, 49; 144]; 150 [para. 49, 144]; 153 [para. 90]; 826 [paras. 69, 122, 137]; 827, fn. 155, 156 [para. 69].

Ormerod, David, Smith and Hogan's Criminal Law (13th Ed. 2011), pp. 56 [para. 86]; 70 to 75 [para. 112].

Roach, Kent, Common Law Bills of Rights as Dialogue Between Courts and Legislatures (2005), 55 U.T.L.J. 733, generally [para. 26].

Roach, Kent, Criminal Law (5th Ed. 2012), pp. 115 [para. 121]; 116 [paras. 69, 121]; 163 [para. 20]; 164 [paras. 20, 87, 88].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statues (4th Ed. 2002), p. 365 [para. 25].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 207 [para. 135]; 394 [para. 115]; 653, 654 [para. 131].

Stuart, Don, Canadian Criminal Law: A Treatise (6th Ed. 2011), pp. 95 [para. 68]; 96 [paras. 69, 119]; 167 [para. 94].

Counsel:

Beverly L. Klatt and W. Dean Sinclair, for the appellant;

Valerie N. Harvey, for the respondent;

Gillian Roberts and Jamie Klukach, for the intervener.

Solicitors of Record:

Attorney General for Saskatchewan, Regina, Saskatchewan, for the appellant;

Saskatchewan Legal Aid Commission, Prince Albert, Saskatchewan, for the respondent;

Attorney General of Ontario, Toronto, Ontario, for the intervener.

This appeal was heard on October 11, 2012, before McLachlin, C.J.C., Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court was delivered in both official languages on May 17, 2013, including the following opinions:

Cromwell, J. (McLachlin. C.J.C., Fish, Abella and Karakatsanis, JJ., concurring) - see paragraphs 1 to 76;

Moldaver, J. (Rothstein, J., concurring), concurring in the result - see paragraphs 77 to 159.