Her Majesty The Queen Appellant v. A.D.H., 2013 SCC 28

SUPREME COURT OF CANADA Citation: R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269 Date: 20130517 Docket: 34132 Between: Her Majesty The Queen Appellant and A.D.H. Respondent - and - Attorney General of Ontario Intervener Coram: McLachlin C.J. and Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. Reasons for Judgment: (paras. 1 to 76) Reasons Concurring in Result: (paras. 77 to 159) Cromwell J. (McLachlin C.J. and Fish, Abella and Karakatsanis JJ. concurring) Moldaver J. (Rothstein J. concurring) R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269 Her Majesty The Queen Appellant v. A.D.H. Respondent and

Attorney General of Ontario Intervener Indexed as: R. v. A.D.H. 2013 SCC 28 File No.: 34132. 2012: October 11; 2013: May 17. Present: McLachlin C.J. and Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. on appeal from the court of appeal for saskatchewan Criminal law — Child abandonment — Mens rea — Accused gave birth in washroom at retail store and left newborn in toilet — Accused testified that she had not realized she was pregnant and that she believed child was born dead — Acquittal entered — Whether fault element is subjective or objective — Criminal Code, R.S.C. 1985, c.

C-46, ss. 214 “‘abandon’ or ‘expose’”, 218. The accused, not previously knowing that she was pregnant, gave birth while using the toilet in a retail store. Thinking the child was dead, she cleaned up as best she could and left, leaving the child in the toilet. The child was in fact alive, was quickly attended to by others and transported to the hospital where he was successfully resuscitated and found to be completely healthy. The accused was eventually identified as the woman seen entering and leaving the washroom at the time in question.

When contacted by police, she cooperated fully and confirmed that she was the mother of the child. She 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 noted that the accused acknowledged that she had left her child in the toilet, thereby committing the actus reus of the s. 218 offence. As for the mens rea , the trial judge decided that subjective fault was required and found that the Crown had not proven beyond a reasonable doubt that the accused intended to abandon her child.

She had not known she was pregnant and truly believed she had delivered a dead child. Her fear and confusion explained her subsequent behaviour. The trial judge accordingly found the accused not guilty and dismissed the charge. The majority of the Court of Appeal agreed with the trial judge that s. 218 of the Criminal Code requires subjective fault. Held : The appeal should be dismissed.

Per McLachlin C.J. and Fish, Abella, Cromwell and Karakatsanis JJ.: The text of s. 218 of the Criminal Code does not expressly set out a fault requirement, but when read in light of its full context, it supports the conclusion that subjective fault is required. An important part of the context in which we must interpret s. 218 is the presumption that Parliament intends crimes to have a subjective fault element. There is nothing in the text or context of the child abandonment offence to suggest that Parliament intended to depart from requiring subjective fault.

The text, scheme and purpose of the provision support this conclusion, and to the extent that Parliament’s intent is unclear, the presumption of subjective fault ought to have its full operation in this case. The legislative evolution of the child abandonment offence is, if anything, more supportive than not of this conclusion. There is no doubt that the purpose of the abandonment offence is the protection of children from risk even when no harm occurs.

Viewed in the light of the broad scope of potential liability under s. 218 of the Criminal Code , the requirement for subjective fault serves an important purpose of ensuring that the reach of the criminal law does not extend too far. While the conduct and people that fall within s. 218 are broadly defined, the requirement for subjective fault ensures that only those with a guilty mind are punished. The words “abandon”, “expose” and “wilful” all suggest a subjective fault requirement.

The first two of these words involve more than just leaving a child alone or failing to take care of it: they denote awareness of the risk involved and, as defined in s. 214 of the Criminal Code , they suggest a requirement for knowledge of the consequences flowing from the prohibited acts of abandonment or exposure. As for the word “wilful”, it is used only in the non-exhaustive definition of the words “abandon” and “expose” in relation to omissions, and a wilful omission is the antithesis of a crime involving a mere failure to act in accordance with some minimum level of behaviour.

Likewise, the use of the word “likely” in both ss. 214 and 218 does not suggest an objective fault requirement given that it is simply aimed at criminalizing the creation of risk. Conversely, what is absent from the text of s. 218 of the Criminal Code and the broader scheme in which it appears strongly suggest that subjective fault is required. The text of the child abandonment provision does not contain any of the language typically employed by Parliament when it intends to create an offence of objective fault.

The prohibition applies to everyone, not just to a particular group engaged in a regulated activity or standing in a particular, defined relationship with the alleged victim. Nothing in the text suggests an intention to impose a minimum and uniform standard of care. There are no references in the text to “dangerous”, “careless” or “reasonable” conduct or any requirement to take “reasonable precautions”.

There is no predicate offence and no actual harm is required by the provision, and it does not create, define or impose a duty to do anything other than in the sense that all criminal offences could be considered to create a duty not to commit them. While failure to perform a duty imposed by law on persons in particular relationships is the essence of the necessaries of life offence created by s. 215, this is not at all the case with respect to the child abandonment offence under s. 218 . The text, context and purpose of s. 218 of the Criminal Code show that subjective fault is required.

It follows that the trial judge did not err in acquitting the respondent on the basis that this subjective fault requirement had not been proved. The Court of Appeal was correct to uphold the acquittal. Per Rothstein and Moldaver JJ.:

Section 218 is child protection legislation. It targets three limited classes of people faced with a situation where a child under 10 is or is likely to be at risk of death or permanent injury. A common sense approach dictates that the offence is duty-based and that penal negligence is the level of fault required to establish guilt as regards the proscribed consequences. Further support for this view is found in a review of the provision’s language, its placement in the Criminal Code ,

relevant scholarly opinion, its legislative evolution and history and the gravity and social stigma associated with the offence. Once it is accepted that in enacting s. 218 Parliament intended to guard against dangerous conduct that any reasonableperson would foresee is likely to endanger a child’s life or expose it to permanent injury, common sense suggests that Parliament wouldnot provide accused persons with a host of defences based on their individual characteristics.

Doing so would effectively defeat theprovision’s purpose of imposing a societal minimum standard of conduct, since crimes of subjective fault require an assessment ofpersonal characteristics to the extent that they tend to prove or disprove an element of the offence. The recognition that s. 218 sweeps within its ambit persons who are already duty-bound to protect a child leads to the centraldifficulty with holding that s. 218 is, in its entirety, a subjective mens rea offence.

If the great bulk of people to whom the provisionapplies have a pre-existing and ongoing legal duty to take charge of children who fall below the age of 10, it hardly seems reasonable thatthey should be judged against a subjective mens rea standard when the very same people who run afoul of the duty-based provision nextdoor (s. 215 (failure to provide necessaries)) are judged on a penal negligence standard in light of this Court’s decision in R. v. Naglik,(SCC), [1993] 3 S.C.R. 122.

The result would be a double standard — an objective standard under s. 215 and asubjective standard under s. 218 — for provisions that serve similar, if not identical, purposes.

Section 218 can be read purposefully and harmoniously, such that it applies only to persons who are cloaked with a duty,whether pre-existing and ongoing or situational, to protect a particular child under the age of 10 from death or permanent injury, all ofwhom are properly subject to an objective standard with respect to the consequences element of s. 218.

The s. 214 definition should berestricted in scope as applying only to persons falling into the following three categories: (1) those with a pre-existing and ongoing legalduty to the child; (2) those who come to the aid of the child who is or is likely to be at risk of death or permanent injury, and; (3) thosewho actually place the child in that situation. Interpreting the scope of s. 218 in this way goes a long way toward addressing concernsabout the broad scope of potential liability under the provision.

Section 218 finds its place in

Part VIII of the Criminal Code under the heading “Duties Tending to Preservation of Life”. Itis one of two offences located under that heading — the other being s. 215. This provides some indication that Parliament intended thats. 218 be construed as a duty-based offence. It seems anomalous that Parliament would insert a non-duty-based offence into a thicket ofduty-related provisions. The scenario becomes even more remarkable when one appreciates that s. 218 is concerned with inherentlydangerous conduct that places or is likely to place the lives and safety of helpless young children at risk.

This is the very type ofsituation which requires a societal minimum standard of conduct and calls out for a standard of fault based on objective foreseeability. Likewise, the plain language of s. 218 — supported by the place of situational duties in Canadian criminal law, the offence’s placementamong other duty-based provisions in the Criminal Code and the scholarship on s. 218 — leads to the conclusion that the offence ofchild abandonment is duty-based. The legislative history of s. 218 further supports the conclusion that the fault element for s. 218 is penal negligence.

Theprovision has never included words of subjective intention, as confirmed by the early English

interpretation of the offence. Furthermore,neither the social stigma associated with it nor the gravity of the offence of child abandonment require it to be treated differently than itssister provision s. 215 (failure to provide necessaries), where penal negligence was found to be the requisite fault element. Under a penal negligence standard, a mistake of fact that is both honest and reasonable affords a complete defence. Thus, anobjective mens rea standard does not punish the morally blameless.

In the present circumstances, the trial judge found that therespondent honestly believed that her child was dead at birth and that this belief was objectively reasonable. As such, she was entitled tobe acquitted based on the defence of honest and reasonable mistake of fact. Cases Cited By Cromwell J. Considered: R. v. Naglik, (SCC), [1993] 3 S.C.R. 122; referred to: R. v. Daviault,(SCC), [1994] 3 S.C.R. 63; R. v. L.M., [2000] O.J. No. 5284 (QL); R. v. C.C.D., [1998] O.J. No. 4875 (QL); R. v. Reedy (No. 2) (1981),(ON SC), 60 C.C.C. (2d) 104; R. v. McIntosh, [2008] O.J. No. 5742 (QL); R. v.

Bokane-Haraszt, 2007 ONCJ 228R. v. Christiansen, [1997] O.J. No. 5733 (QL); R. v. R. (J.), 2000 CarswellOnt 5325; R. v. Gosset, (SCC), v. Rees, (SCC), [1956] S.C.R. 640; Beaver v. The Queen, (SCC), [1957] S.C.R. 531; R. v. Sault Ste. (SCC), [1993] 2 S.C.R. 5; R. v. Lucas, (SCC), [1998] 1 S.C.R. 439; R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49;Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; R. v. White (1871),L.R. 1 C.C.R. 311; R. v. Downes (1875), 1 Q.B.D. 25; R. v. Senior, [1899] 1 Q.B. 283; R. v.

Renshaw (1847), 2 Cox C.C. 285; R. v.Hogan (1851), 2 Den. 277; R. v. Falkingham (1870), L.R. 1 C.C.R. 222; R. v. Boulden (1957), 41 Cr. App. R. 105; Re Davis (1909), 18O.L.R. 384; R. v. Buzzanga (1979), (ON CA), 25 O.R. (2d) 705; R. v. L.B., 2011 ONCA 153, 274 O.A.C. 365, leaveto appeal refused, [2011] 3 S.C.R. x; R. v. Keegstra, (SCC), [1990] 3 S.C.R. 697; R. v. Hundal, (SCC),[1993] 1 S.C.R. 867; R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60; R. v. Finlay, (SCC), [1993] 3 S.C.R. 103; R. v. S.C.R. 215; R. v. Holzer (1988), (AB KB), 63 C.R. (3d) 301. By Moldaver J. Considered: R. v.

Naglik, (SCC), [1993] 3 S.C.R. 122; referred to: R. v. Hinchey,(SCC), [1996] 3 S.C.R. 1128; R. v. DeSousa, (SCC), [1992] 2 S.C.R. 944; R. v. Creighton, (SCC),[1993] 3 S.C.R. 3; R. v. Lohnes, (SCC), [1992] 1 S.C.R. 167; R. v. Nova Scotia Pharmaceutical Society, 1992

72 (SCC), [1992] 2 S.C.R. 606; R. v. Browne (1997), (ON CA), 33 O.R. (3d) 775; R. v. Nicholls (1874), 13 Cox C.C.75; R. v. Instan, [1893] 1 Q.B. 450; R. v. Salmon (1880), 6 Q.B.D. 79; R. v. Coyne (1958), (NB CA), 124 C.C.C. 176;R. v. Miller, [1983] 1 All E.R. 978; R. v. Lucas, (SCC), [1998] 1 S.C.R. 439; R. v. White (1871), L.R. 1 C.C.R. 311; R.v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49; R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60; R. v. Senior, [1899] 1 Q.B. 283; R. v. Buzzanga(1979), (ON CA), 25 O.R. (2d) 705; R. v. L.B., 2011 ONCA 153, 274 O.A.C. 365, leave to appeal refused, [2011] 3S.C.R. x; Leary v.

The Queen, (SCC), [1978] 1 S.C.R. 29; R. v. George, (SCC), [1960] S.C.R. 871; R. v.Daviault, (SCC), [1994] 3 S.C.R. 63; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523. Statutes and Regulations Cited Act respecting Offences against the Person, R.S.C. 1886, c. 162, s. 20. Act respecting Offences against the Person, S.C. 1869, c. 20, ss. 25, 26. Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32,ss. 11, 12. Criminal Code, R.S.C. 1985, c. C-46, ss. 33.1,

Part VIII, 214 “‘abandon’ or ‘expose’”, 215, 216, 217, 217.1, 218, 219, 220, 221, 266,269, 298, 300. Criminal Code, S.C. 1953-54, c. 51, s. 185 “‘abandon’ or ‘expose’”. Criminal Code, 1892, S.C. 1892, c. 29, ss. 209 to 211, 216. Offences against the Person Act, 1861 (U.K.), 24 & 25 Vict., c. 100, s. 27. Poor Law Amendment Act, 1868 (U.K.), 31 & 32 Vict., c. 122, s. 37. Prevention of Cruelty to, and Protection of, Children Act, 1889 (U.K.), 52 & 53 Vict., c. 44, ss. 1, 18. Prevention of Cruelty to Children Act, 1894 (U.K.), 57 & 58 Vict., c. 41, s. 1. Authors Cited Colvin, Eric, and Sanjeev Anand.

Principles of Criminal Law, 3rd ed. Toronto: Thomson Carswell, 2007. Côté, Pierre-André, in collaboration with Stéphane Beaulac and Mathieu Devinat. The

Interpretation of Legislation in Canada, 4th ed. Toronto: Carswell, 2011. Cross, Rupert. Statutory

Interpretation, 3rd ed. by John Bell and George Engle. London: Butterworths, 1995. Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983. Manning, Morris, and Peter Sankoff. Manning, Mewett & Sankoff: Criminal Law, 4th ed. Markham, Ont.: LexisNexis, 2009. Ormerod, David. Smith and Hogan’s Criminal Law, 13th ed. Oxford: Oxford University Press, 2011. Oxford Dictionary of English, 2nd ed., rev. Oxford: Oxford University Press, 2005, “abandon”, “desert”, “expose”. Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989.

Roach, Kent. “Common Law Bills of Rights as Dialogue Between Courts and Legislatures” (2005), 55 U.T.L.J. 733. Roach, Kent. Criminal Law, 5th ed. Toronto: Irwin Law, 2012. Stuart, Don. Canadian Criminal Law: A Treatise, 6th ed. Scarborough, Ont.: Carswell, 2011. Sullivan, Ruth. Sullivan and Driedger on the Construction of Statutes, 4th ed. Markham, Ont.: Butterworths, 2002. Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008. APPEAL from a judgment of the Saskatchewan Court of Appeal (Richards, Smith and Ottenbreit JJ.A.), 2011 SKCA 6, 366Sask.

R. 123, 266 C.C.C. (3d) 101, 81 C.R. (6th) 303, [2011] 6 W.W.R. 10, 506 W.A.C. 123, [2011] S.J. No. 5 (QL), 2011 CarswellSask10, affirming the acquittal entered by Gabrielson J., 2009 SKQB 261, 335 Sask. R. 173, 68 C.R. (6th) 74, [2009] S.J. No. 362 (QL), 2009CarswellSask 388. Appeal dismissed. Beverly L. Klatt and W. Dean Sinclair, for the appellant. Valerie N. Harvey, for the respondent. Gillian Roberts and Jamie Klukach, for the intervener. The judgment of McLachlin C.J. and Fish, Abella, Cromwell and Karakatsanis JJ. was delivered by Cromwell J. —

I. Overview and Issue [ 1 ] Criminal offences generally consist of prohibited conduct (the actus reus ) which is committed with a required element of fault (the mens rea ). This appeal concerns the offence of child abandonment under s. 218 of the Criminal Code , R.S.C. 1985, c. C-46 (“ Code ”).

The provision prohibits 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 full text of the provision is found in the Appendix.) The question on appeal concerns the fault element of the offence: Is the fault element to be assessed subjectively or objectively? [ 2 ] The issue arises out of a heart-rending story which, fortunately, has a happy ending. The respondent, not previously knowing that she was pregnant, gave birth to a baby boy while using the toilet in a Wal-Mart store.

Thinking the child was dead, she cleaned up as best she could and left, leaving the child in the toilet. The child was in fact alive, was quickly attended to by others and, by all reports, is now a healthy little boy. The trial judge believed the respondent’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.

Thus, whether the fault element is assessed according to what the respondent actually knew or by what a reasonable person would have known and done is an important issue in this case. [ 3 ] In general terms, when a fault element is assessed subjectively, the focus is on what the accused actually knew: Did the accused know that abandoning the child would put the child’s life or health at risk? If, as the respondent believed, the child was dead when she abandoned him, she would not know that her abandonment of him risked putting his life or health at risk.

Again to speak generally, when assessed objectively, the focus is not on what the accused actually knew, but on whether a reasonable person in those circumstances would have seen the risk and whether the accused’s conduct is a marked departure from what a reasonable person would have done.

If a court were persuaded that a reasonable person would have seen the risk of abandoning the child in these circumstances and concluded that the accused’s conduct was a marked departure from that expected of a reasonable person, the fault element would be established even though the accused in fact did not see the risk. [ 4 ] It follows that the issue for decision is this: • Does s. 218 of the Code require proof that the accused knew that the acts of alleged abandonment or exposure of a child were such that the abandoned child’s life was or was likely to be endangered or his or her health permanently injured, as the respondent contends?

Or, as the appellant Crown contends, is the fault element established by proof that the accused’s conduct constituted a marked departure from that expected of a reasonable person in the same circumstances and that the risk to the child’s life or health would have been a foreseeable result by such a person? [ 5 ] As I will explain, I agree with the respondent that the trial judge and the majority judges of the Court of Appeal were correct to require subjective fault. I would therefore dismiss the Crown’s appeal. II. F acts and Proceedings A.

Overview of the Facts [ 6 ] On May 21, 2007, users of the washroom at a Wal-Mart store discovered a puddle of blood on the floor of one of the stalls and heard the sounds of a young woman who we know now to have been the respondent struggling inside. The customers alerted the store staff, but when an assistant manager asked the young woman if she was all right, she responded from inside the stall that she was fine. [ 7 ] Shortly thereafter, a customer reported that she had discovered a baby’s arm sticking out of the toilet bowl of the stall where the young woman had been.

Other customers had seen the baby by that point, but all of them thought it was dead. When the store manager went into the bathroom to see what was happening, he observed that the baby’s leg had started twitching. He pulled the baby out of the toilet.

An emergency response team was called and the baby, A.J.H., was transported to the hospital where he was successfully resuscitated and found to be completely healthy. [ 8 ] Police gave video surveillance tapes of the store to various media outlets and the respondent was eventually identified as the woman seen entering and leaving the washroom at the time in question. When contacted by police, she cooperated fully and confirmed that she was the mother of the child.

She was charged with unlawfully abandoning a child under the age of 10 years and thereby endangering his life contrary to s. 218 of the Code . [ 9 ] At her trial, the respondent testified. She was 22 years of age by that time and was living with her boyfriend and their baby, S.K. Prior to the birth of A.J.H., she had been gaining weight and so she had taken three home pregnancy tests, all of which were negative. She did not believe she was pregnant because she had been getting her period every month prior to the birth.

When she arrived at the Wal-Mart store, she was not feeling well and so she went to the bathroom, where she gave birth a minute or two later. She was surprised by the birth. She did not try to pick the baby up because it was all blue and she thought it was dead. She did not respond to offers for help or tell anyone what had happened because she was afraid. She tried to clean up the blood on the floor and then returned to her friend’s car. [ 10 ] When she heard the police were looking for her, the respondent told her mother she was the one that had given birth to the baby in the store.

When she found out the baby was alive, she was eager to see him. He now lives with the respondent’s mother and the respondent visits him almost every day. A.D.H. testified that it took her five or six months to realize that she was pregnant with her second child, S.K. B. Court of Queen’s Bench , 2009 SKQB 261 , 335 Sask. R. 173 (Gabrielson J.) [ 11 ] The trial judge noted that the respondent acknowledged that she had left her child in the toilet at the Wal-Mart store, thereby committing the actus reus of the s. 218 offence. As for the fault element, the trial judge decided that subjective fault was required.

He therefore expressed the issue he had to decide as follows: “. . . whether the accused . . . intended to abandon the child, A.J.H., or did so recklessly with full knowledge of the facts and circumstances or was wilfully blind in respect to them” (para. 15).

[12] The trial judge answered this question in the negative and found that the Crown had not proven beyond a reasonabledoubt that the respondent intended to abandon her child (paras. 23-26). The accused had been credible in her testimony. She had notknown she was pregnant and truly believed she had delivered a dead child. Her fear and confusion explained her subsequent behaviour.The trial judge also relied on the evidence of Dr.

Simpson, who testified that, “[u]nder these circumstances of an unknown pregnancyand a premature, precipitous birth, it is understandable that the accused thought the child was not alive and that she would be scared orpanicked, not request help and immediately leave the scene of the birth” (para. 24). Thus, the trial judge found the respondent not guiltyand dismissed the charge (para. 26). C. Court of Appeal, 2011 SKCA 6, 366 Sask. R. 123 (Richards, Smith and Ottenbreit JJ.A.) [13] Richards J.A. (Smith J.A. concurring) agreed with the trial judge that s. 218 of the Code requires subjective fault.

He supported his conclusion with a detailed analysis of the text and context of the provision. On the other hand, Ottenbreit J.A.concluded that s. 218 only requires an objective fault element, but that an honest and reasonable mistake of fact could be a defence. Hefound that the respondent had acted on the basis of the mistaken but reasonable belief that her child was dead and concluded that the trialjudge’s verdict of acquittal should be upheld on that basis. III. Brief

Summary of the Positions of the Parties [14] The appellant Crown submits that the fault element of the child abandonment offence should be assessed“objectively” according to what has been called the “penal negligence” standard, whereas the respondent submits that the fault elementshould be assessed subjectively, adopting the position taken by the trial judge and a majority of the Court of Appeal. [15] In this case, a penal negligence standard means that the Crown must prove two things to establish the fault element: first, that the risk to the child resulting from the respondent’s acts would have been foreseeable by a reasonable person in the samecircumstances and, second, that her conduct was a marked departure from the conduct expected of a reasonable person in thosecircumstances.

Penal negligence is the fault element that applies to the offence of failing to provide a child with the necessaries of lifeunder s. 215 of the Code and the Crown submits that the same standard of fault should apply here. [16] On the other hand, a subjective standard means, in the context of an offence under s. 218 of the Code, that the faultelement requires proof at least of recklessness, in other words that the accused persisted in a course of conduct knowing of the risk whichit created. Subjective fault, of course, may also refer to other states of mind.

It includes intention to bring about certain consequences;actual knowledge that the consequences will occur; or wilful blindness — that is, knowledge of the need to inquire as to the consequencesand deliberate failure to do so. But here, the element of risk (“is likely to”) is part of the definition of the prohibited consequences: theprohibited consequences under s. 218 are that the child’s life “is or is likely to be” endangered or its health “is or is likely to be”permanently injured.

It is because the definition of the offence incorporates the notion of risk to life or health that a subjective faultelement would require the Crown to show at least recklessness, that is, that the accused actually knew of the risk to the child’s life orhealth. (Wilful blindness would also suffice, but was not argued in this case. I also note that self-induced intoxication is not relevant hereand was not argued. I do not find it either necessary or desirable to speculate about the various issues that would arise if it were raised inthe context of this general intent offence.

Simply by way of example, one would have to consider among other things issues such aswhether the ratio of R. v.

Daviault, (SCC), [1994] 3 S.C.R. 63, applies, whether its application would or should be anydifferent depending on whether the offence requires subjective or objective fault and whether the child abandonment offence falls withinthe exclusion from the self-induced intoxication defence set out in s. 33.1(3) of the Code relating to offences that include as an elementany interference or threat of interference by a person with the bodily integrity of another person.) [17] The respondent also submits, in the alternative, that even if the required fault element is objective, the appeal shouldnonetheless be dismissed because she acted on the basis of a reasonable mistake of fact, that is, that the child was dead when she lefthim.

I do not need to address this submission as I conclude that the fault element is subjective and therefore that the trial judge did noterr in acquitting the respondent on the basis that the fault element had not been proved. IV. Analysis A. Introduction [18] This Court has never addressed the fault element for the child abandonment offence and the relatively scantjurisprudence in other courts is inconclusive on this issue. Some cases have applied a subjective standard of fault: R. v. L.M., [2000] O.J.No. 5284 (QL) (Ct. J.), at para. 49; R. v. C.C.D., [1998] O.J. No. 4875 (QL) (Ct. J. (Prov.

Div.)), at paras. 24-30; R. v. Reedy (No. 2)(1981), (ON SC), 60 C.C.C. (2d) 104 (Ont. D.C.J.C.C.), at pp. 106-8. Others have either applied an objective standardor been unclear about the standard: R. v. McIntosh, [2008] O.J. No. 5742 (QL) (Ct. J.), at paras. 32-33; R. v. Bokane-Haraszt, 2007ONCJ 228 at paras. 25-26; R. v. Christiansen, [1997] O.J. No. 5733 (QL) (Ct. J. (Prov. Div.)), at paras. 8 and 18-19; R. v. R.(J.), 2000 CarswellOnt 5325 (Ct. J.). [19] Given that existing case law does not settle the question, our task is to “discern the intent of Parliament, havingregard to the purpose of the

section and the applicable principles of statutory construction”: R. v. Gosset, (SCC), [1993]3 S.C.R. 76, at p. 89. We must, therefore, read the words of the statute in their entire context, in their grammatical and ordinary sense B. Statutory

Interpretation and Fault Requirements [20] Discerning parliamentary intent in relation to the fault element of crimes is often not an easy task. Offences thathave long been held to have subjective fault requirements do not expressly say so and even when Parliament decides to expressly set outfault requirements, it does not use language consistently: M. Manning and P. Sankoff, Manning, Mewett & Sankoff: Criminal Law (4th

Reid, at p. 148; K. Roach, Criminal Law (5th ed. 2012), at pp. 163-64. [21] In my view, this is such a case. The text of the provision does not expressly set out a fault requirement, but the textread in light of its full context supports the conclusion that subjective fault is required. I will begin my analysis by touching on animportant presumption of parliamentary intent that applies here and then turn to the purpose, text and scheme of the provision. In thecourse of that analysis, I will explain why, in my opinion, the Crown’s position that this is an offence of penal negligence must berejected. C.

The Broader Context [22] I will review three elements of the broader context of the child abandonment provision: the presumption oflegislative intent in favour of subjective fault, the provision’s legislative evolution and finally its purpose. 1. Presumed Legislative Intent [23] An important part of the context in which we must interpret s. 218 is the presumption that Parliament intends crimesto have a subjective fault element. The Court has stated and relied on this interpretative principle on many occasions: see, e.g., Watts v.The Queen, (SCC), [1953] 1 S.C.R. 505, at p. 511; R. v.

Rees, (SCC), [1956] S.C.R. 640, at p. 652;Beaver v. The Queen, (SCC), [1957] S.C.R. 531, at pp. 542-43; R. v. Sault Ste. Marie, (SCC), [1978] 2 (SCC), [1993] 2 S.C.R. 5, at p. 18; R. v. Lucas, (SCC), [1998] 1 S.C.R. 439, at para. 64. Perhaps theclassic statement is that of Dickson J. (as he then was) for the Court in Sault Ste. Marie: In the case of true crimes there is a presumption that a person should not be held liable for the wrongfulness of his act if that act iswithout mens rea . . . . . . .

Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibitedact did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Merenegligence is excluded from the concept of the mental element required for conviction.

Within the context of a criminal prosecution aperson who fails to make such enquiries as a reasonable and prudent person would make, or who fails to know facts he should haveknown, is innocent in the eyes of the law. [Citations omitted; pp. 1303 and 1309-10.] [24] Notwithstanding these many statements, the Crown in effect submits that there is no such presumption of legislativeintent because it has not always been applied.

The Crown notes that there are many offences in the Code that do not require subjectivefault and further that there is no absolute rule requiring complete symmetry between the fault element and the prohibited consequencesof the offence. In my view, however, these points do not negate the existence of the presumption of legislative intent. They show merelythat the presumption does not invariably determine the outcome of a full contextual and purposive

interpretation of a particular provision. [25] Presumptions of legislative intent are not self-applying rules. They are instead principles of

interpretation. They donot, on their own, prescribe the outcome of

interpretation, but rather set out broad principles that ought to inform it. As Professor Sullivanhas observed, presumptions of legislative intent, such as this one, serve as a way in which the courts recognize and incorporate importantvalues into the legal context in which legislation is drafted and should be interpreted. These values both inform judicial understanding oflegislation and play an important role in assessing competing

interpretations: R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 365. [26] Professor Côté has described how these presumptions may inform the legal context in which legislation is drafted. He put it this way: “In some sense, presumptions of intent form part of the enactment’s context, as they reflect ideas which can beassumed to have been both present in the mind of the legislature and sufficiently current as to render their explicit mention unnecessary”:P.-A. Côté, in collaboration with S. Beaulac and M. Devinat, The

Interpretation of Legislation in Canada (4th ed. 2011), at p. 470; see also R. Cross, Statutory

Interpretation (3rd ed. 1995), by J. Bell and G. Engle, at pp. 165-67, and K. Roach, “Common Law Bills ofRights as Dialogue Between Courts and Legislatures” (2005), 55 U.T.L.J. 733. Parliament must be understood to know that thispresumption will likely be applied unless some contrary intention is evident in the legislation. [27] As for the role of the presumption of subjective fault in assessing competing

interpretations, it sets out an importantvalue underlying our criminal law. It has been aptly termed one of the “presumptive principles of criminal justice”: R. v. Beatty, 2008SCC 5, [2008] 1 S.C.R. 49, per Charron J., at paras. 22-23. While the presumption must — and often does — give way to clearexpressions of a different legislative intent, it nonetheless incorporates an important value in our criminal law, that the morally innocentshould not be punished.

This has perhaps never been better expressed than it was by Dickson J. in Pappajohn, at pp. 138-39: There rests now, at the foundation of our system of criminal justice, the precept that a man cannot be adjudged guilty and subjected topunishment, unless the commission of the crime was voluntarily directed by a willing mind. . . . Parliament can, of course, by expresswords, create criminal offences for which a guilty intention is not an essential ingredient. Equally, mens rea is not requisite in a widecategory of statutory offences which are concerned with public welfare, health and safety.

Subject to these exceptions, mens rea,consisting of some positive states of mind, such as evil intention, or knowledge of the wrongfulness of the act, or reckless disregard ofconsequences, must be proved by the prosecution. [28] Viewed in this way, the presumption of subjective fault is not an outdated rule of construction which is at odds withthe modern approach to statutory

interpretation repeatedly endorsed by the Court. On the contrary, the presumption forms part of thecontext which the modern approach requires to be considered.

[ 29 ] As I will explain, there is nothing in the text or context of the child abandonment offence to suggest that Parliament intended to depart from requiring subjective fault. In fact, the text, scheme and purpose of the provision support the view that subjective fault is required. To the extent that Parliament’s intent is unclear, the presumption of subjective fault ought to have its full operation in this case. 2. Legislative Evolution [ 30 ] Legislative evolution and history may often be important parts of the context within which to conduct the modern approach to statutory

interpretation: Canada (Canadian Human Rights Commission) v. Canada (Attorney General) , 2011 SCC 53 , [2011] 3 S.C.R. 471, at para. 43 . The Crown has been diligent in providing us with a detailed picture of the English origins and Canadian evolution of what is now s. 218 .

I will touch on this only briefly, however, because as I see it, this information sheds little real light on the issue at hand. [ 31 ] It seems that from the beginning, there were two strands of prohibitions, one addressing abandoning or exposing a child to risk to its life or health and the other in relation to the breach of a duty by people in certain relationships to provide the necessaries of life. [ 32 ] The origin of the abandonment offence appears to be in the English The Offences against the Person Act, 1861 , 24 & 25 Vict., c. 100, s. 27, which created the misdemeanor of unlawfully abandoning or exposing any child under the age of two “whereby the life of such child shall be endangered, or the health of such child shall have been or shall be likely to be permanently injured”.

The early case law is unclear as to whether subjective or objective fault was required although there is some support for the view that subjective fault is required: see, e.g., R. v. White (1871), L.R. 1 C.C.R. 311, per Bovill C.J., at p. 313, and per Blackburn J., at p. 314. [ 33 ] The necessaries offence appears to have its origins in the English The Poor Law Amendment Act, 1868 , 31 & 32 Vict., c.

Section 37 of that Act made it an offence for any parent to “wilfully neglect to provide adequate food, clothing, medical aid, or lodging for his child, being in his custody, under the age of fourteen years, whereby the health of such child shall have been or shall be likely to be seriously injured” . The fault element for this offence appears to have been objective: R. v.

Downes (1875), 1 Q.B.D. 25 , per Bramwell B., at p. 30. [ 34 ] The two offences appear to have come closer together in England with the enactment of s. 1 of the Prevention of Cruelty to, and Protection of, Children Act, 1889 , 52 & 53 Vict., c. 44, a provision that replaced s. 37 of The Poor Law Amendment Act, 1868 . (The latter provision was repealed by s. 18 of the 1889 Act.)

Section 1 made it a misdemeanor for anyone over 16 who had the custody, control, or charge of a boy under 14 or a girl under 16 to “wilfully” ill-treat, neglect, abandon or expose such child in a manner likely to cause such child unnecessary suffering or injury to its health. Again, the fault element is not very clear. In R. v. Senior , [1899] 1 Q.B. 283 , the court approved jury instructions that seemed to describe both an objective and a subjective requirement. [ 35 ] In Canada, the abandonment offence and the necessaries of life offence have been kept distinct. The child abandonment offence was first enacted in 1869:

An Act respecting Offences against the Person , S.C. 1869, c. 20, s. 26. The offence of failing to provide the necessaries of life was found in s. 25 of the same Act, and applied to individuals who were “legally liable” towards others. From 1869 to 1892, the child abandonment offence did not include any reference to duty:

An Act respecting Offences against the Person (1869), s. 26;

An Act respecting Offences against the Person , R.S.C. 1886, c. 162, s. 20. Thus, the provision’s early legislative evolution shows clearly that it was not conceived of as a duty-based offence, and suggests that a subjective intent was required. [ 36 ] In 1892, both offences were included in the first Code ( The Criminal Code, 1892 , S.C. 1892, c. 29). The abandonment offence was found in s. 216 while the necessaries offence was found in ss. 209 to 211. The abandonment offence was then similar to the current provision.

It applied, however, only to children under two and required actual danger to life or permanent injury to health as opposed to the risk of those things occurring as under the current provision. A non-exhaustive definition of “abandon” and “expose” was added in 1892. For the first time, a reference to duty was added, but only in the context of omissions.

The definition provided that “abandon” and “expose” included “a wilful omission to take charge of the child on the part of a person legally bound to do so”. [ 37 ] The non-exhaustive definition added in 1892 also included “any mode of dealing with [the child] calculated to leave it exposed to risk without protection”. While I would not attach much weight to the use of the word “calculated”, I note that, if anything, it suggests a subjective fault requirement.

This is consistent with the fact that the English case of White , mentioned earlier, appears to have required subjective fault for the English equivalent of the abandonment offence. In 1954, the words “calculated to” were replaced by “likely to” in the non-exhaustive definition so that the provision read as it does today: Criminal Code , S.C. 1953-54, c. 51, s. 185. I would not attach much weight to this amendment. The Oxford English Dictionary (2nd ed. 1989) suggests that, particularly in the 18th and 19th centuries, “calculated to” and “likely to” could be used as synonyms.

In any event, both “calculated to” and “likely to” are consistent with legislative intent to require subjective fault, albeit “calculated to” could be viewed as requiring specific intent, while “likely to” suggests that general intent is required. [ 38 ] All things considered, my view is that the legislative evolution of the child abandonment offence is, if anything, more supportive than not of the view that subjective fault is required. 3. Purpose and Breadth of the Offence [ 39 ] There is no doubt that the purpose of the abandonment offence is the protection of children from risk even when no harm occurs.

Prior to the enactment of the offence of child abandonment in 1861, the offence required actual harm: R. v. Renshaw (1847), 2 Cox C.C. 285; R. v. Hogan (1851), 2 Den. 277. The new crime of child abandonment filled a perceived gap by punishing those who placed children in positions of risk: R. v. Falkingham (1870), L.R. 1 C.C.R. 222; White . [ 40 ] It follows that the scope of potential liability under s. 218 of the Code is very broad, encompassing a wide range of persons and conduct.

Liability is not restricted to those who are related to the child, or who have any duties in relation to the child or even to those who are in charge of the child at the time. In addition, a very wide range of conduct falls within the words “abandon” and

“expose”. These are broad words that are not exhaustively defined under the Code. [41] Viewed in the light of the broad scope of potential liability under s. 218 of the Code, the requirement for subjectivefault serves an important purpose of ensuring that the reach of the criminal law does not extend too far. While the conduct andpeople that fall within s. 218 of the Code are broadly defined, the requirement for subjective fault ensures that only those with a guiltymind are punished. D. The Text of the Provisions [42] The text of the provisions is found in the Appendix.

There are three main points which emerge from a careful studyof the text and scheme of these provisions. First, the words “abandon”, “expose” and “wilful” suggest a subjective fault requirement. Second, the use of the word “likely” in this context does not suggest an objective fault requirement.

Third, what is absent from the text ofs. 218 of the Code and the broader scheme in which it appears strongly suggest that subjective fault is required. 1. “Abandon”, “Expose” and “Wilful” Suggest Subjective Fault [43] The words “abandon” and “expose” are not given an exhaustive definition in s. 214 the Code and therefore theirordinary grammatical meanings remain relevant to their

interpretation. Both words suggest actions taken with knowledge of theirconsequences.

The Oxford Dictionary of English (2nd ed. rev. 2005), for example, defines “abandon” as “cease to support or look after(someone); desert”. [44] The same dictionary defines “expose” (in the sense of “expose someone to”) as “cause someone to be vulnerable orat risk” or “leave (a child) in the open to die”. [45] The definition of “desert” is also helpful: “[A]bandon (a person, cause, or organization) in a way considered disloyalor treacherous . . . .” [46] I agree with Richards J.A. that the words “abandon” and “expose” on their face, and standing alone, are indicative ofsubjective fault: C.A., at para. 59.

They involve more than just leaving a child alone or failing to take care of it: they denote awareness ofthe risk involved. This view is also perfectly consistent with the statutory non-exhaustive definition of “abandon” or “expose” in s. 214 ofthe Code which, as noted earlier, suggests a requirement for knowledge of the consequences flowing from the prohibited acts ofabandonment or exposure. This is also reflected in the jurisprudence. As noted in L.M., abandon means “leaving the child to its fate”which suggests

an act accompanied by knowledge of or recklessness as to the consequences: paras. 28 and 47; see also, e.g., R. v.Boulden (1957), 41 Cr. App. R. 105, at p. 110; Re Davis (1909), 18 O.L.R. 384, at p. 387.

This is one of the factors that led the court inReedy (No. 2), to imply a subjective fault requirement (p. 107). [47] The Crown, in support of its position that the fault element is objective, argued that the non-exhaustive definition of“abandon” and “expose” included in the Code in 1892 (now in s. 214) likely came from the English decisions of Falkingham and White.While those cases may well be the origin of the Code definition, this does not advance the Crown’s position. In both cases, there wasevidence of subjective fault.

In White, there was clear evidence that the accused intentionally and knowingly abandoned and exposed thechild and was aware of the risk. In Falkingham, there was evidence of at least recklessness or wilful blindness: a mother, with theknowledge and connivance of another woman who was also charged with child abandonment, had put her child in a hamper and sent itby train to the child’s father without indicating to the railway employees that a child was in the package.

The accused had been cautiousin “packaging” the child, the mother indicated to the railway clerk to be very careful with it and wrote on the hamper “with care, to bedelivered immediately” (p. 223). This indicated awareness of the risk. [48] What emerges from both the ordinary meaning and the non-exhaustive statutory definition of the words “abandon”and “expose” is the notion of awareness of or recklessness in relation to risk. [49] That brings me to the word “wilful” found in the s. 214 definition of the terms “abandon” and “expose”.

RichardsJ.A. for the majority of the Court of Appeal placed considerable weight on s. 214’s use of the word “wilful” in concluding that subjectivefault was required. The word “wilful” is often (although not always) a strong indication that intention is required: see, e.g., the discussionin R. v. Buzzanga (1979), (ON CA), 25 O.R. (2d) 705 (C.A.), at pp. 715-17; R. v. L.B., 2011 ONCA 153, 274 O.A.C.365, at paras. 108-9, leave to appeal refused, [2011] 3 S.C.R. x; Manning, Mewett & Sankoff: Criminal Law, at pp. 149-50.

While theword is used here only in the non-exhaustive definition of the words “abandon” and “expose” and only in relation to omissions, I agreewith Richards J.A. that a wilful omission is the antithesis of a crime involving a mere failure to act in accordance with some minimumlevel of behaviour. If Parliament had meant to include in the terms “abandon” and “expose” situations in which there is no more than afailure to meet a standard of reasonable conduct, it would not make sense to require that omissions to observe that standard would have tobe “wilful”: C.A., at paras. 66-67. 2.

The Word “Likely” Does Not Suggest Objective Fault [50] Ottenbreit J.A., in deciding that only objective fault was required, placed considerable weight on the use of the word“likely” in the non-exhaustive definition of the terms “abandon” or “expose” in s. 214: para. (

b) of definition — that is, “dealing with achild in a manner that is likely to leave that child exposed to risk”. As he put it, “[t]he terms ‘in a manner . . . likely . . .’ . . . speak of thesocietal rather than a personal standard of conduct” (para. 32). However, I do not think that the word “likely” in this context is anindication of legislative intent to require only objective fault, for two reasons. [51] The French version of the s. 214 definition uses the terms “pouvant l’exposer” and the French version of the s. 218offence uses the terms “exposée à l’être”.

The French wording suggests that the focus is on the outcome of the conduct rather than onthe standard of care. This makes it clear that the English word “likely” serves the same purpose. Moreover, as I have discussed, thepurpose of the child abandonment offence is to criminalize the creation of the risk of harm; it makes it an offence to expose or abandon achild such that its life or health is put at serious risk even if no harm actually results. This is consistent with the well-established viewthat the criminal law may properly be aimed at preventing the risk of serious harm: see, e.g., R. v. Keegstra, (SCC),

[1990] 3 S.C.R. 697, at p. 776; Lucas, at para. 83. The word “likely”, as it is used in both the s. 214 definition and in the offenceprovision itself (s. 218), is consistent with this preventive purpose. This purpose of criminalizing the creation of a serious risk of harm isnot at all inconsistent with a requirement of subjective fault — that is, actual knowledge of the risk of harm — as is clear from theCourt’s decision in Lucas. [52] Lucas concerned the fault element of publishing a defamatory libel under s. 300 of the Code.

A defamatory libel isdefined in s. 298 to be a “matter published . . . that is likely to injure the reputation of any person”. The Court held that the fault elementof the offence requires proof that the accused knew that the published material was defamatory, in other words, that it was “likely toinjure the reputation of any person”, per Cory J., at paras. 30 and 67-68.

Thus, the term “likely to injure the reputation” was found torequire proof of subjective fault, i.e. that the accused actually knew of the risk of injury to reputation. [53] I therefore conclude that the use of the word “likely” in s. 214 (and s. 218) does not suggest an objective faultelement; it does not, as I see it, speak of a societal rather than a personal standard of conduct. As in Lucas, the use of the word “likely”is simply aimed at criminalizing the creation of risk and, as in Lucas, the fault element may require knowledge of that risk. 3.

What Is Not in the Text and the Scheme of the Code Suggest Subjective Fault [54] In my view, what is not in the text of the provision and what surrounds it suggest that a subjective fault elementshould be implied. (

a) What Is Not Found in the Text [55] There is no doubt that Parliament can and does create criminal offences that require objective rather than subjectivefault. How those provisions are drafted sheds some light on the sorts of language used when that is the intent.

As I see it, the text of thechild abandonment provision does not contain any of the language typically employed by Parliament when it intends to create an offenceof objective fault. [56] I will briefly review five main types of objective fault offences in the Code in order to explain why, in my view, acomparison of the way they are drafted with the text of s. 218 supports the inference that the latter requires subjective fault.

This willlead me to explain why I reject the Crown’s position that penal negligence should apply to the s. 218 offence because it applies to the s.215 offence of failing to provide the necessaries of life. [57] We come first to offences defined in terms of dangerous conduct. In R. v. Hundal, (SCC), [1993] 1S.C.R. 867, the Court found that the fault element of the offence of dangerous driving was a manner of driving which constituted a“marked departure” from that expected of a reasonable person in the same circumstances. (See also, more recently, Beatty and R. v.

Roy,2012 SCC 26, [2012] 2 S.C.R. 60.) Several factors justified adopting an objective rather than a subjective fault requirement: driving is aregulated activity in which people choose to engage; driving is automatic and reflexive in nature; and the text of the offence focuses onthe manner of driving, all of which suggest that the offence seeks to impose a minimum uniform standard of care. Cory J. noted, forexample, that “[l]icensed drivers choose to engage in the regulated activity of driving.

They place themselves in a position ofresponsibility to other members of the public who use the roads”: Hundal, at p. 884 (emphasis added). With respect to the text of theprovision, Cory J. observed that it creates an offence of driving “in a manner that is dangerous to the public, having regard to all thecircumstances” and this suggests an objective standard: “The ‘manner of driving’ can only be compared to a standard of reasonableconduct” (p. 885). So in the case of dangerous driving both the text and nature of the provision, as well as other factors, provided strongsupport for an objective fault element.

None of those factors is present in the s. 218 offence. [58] Next, there are offences which are expressed in terms of careless conduct, such as the careless storage of firearms. In R. v. Finlay, (SCC), [1993] 3 S.C.R. 103, the Court concluded that the carelessness targeted by the offence is notconsistent with subjective fault. The provision required the Crown to establish that a firearm was used, carried, handled, shipped orstored “in a careless manner or without reasonable precautions for the safety of other persons”.

The use of the word “careless” and thereference to “reasonable precautions” were clear markers of objectively assessed fault (pp. 114-15). There is no similar language in s.218. [59] A third category relates to so-called predicate offences. These are offences such as unlawful act manslaughter andunlawfully causing bodily harm which require the commission of an underlying unlawful act. They have been found to require themental element for the underlying offence but only objective foresight of harm flowing from it: see, e.g., R. v. DeSousa, [1992] 2 S.C.R.944 (unlawfully causing bodily harm); R. v.

Creighton, (SCC), [1993] 3 S.C.R. 3 (unlawful act manslaughter). Withoutreiterating the detailed reasons given in those cases, I simply underline that these offences are ones in which the commission of thepredicate or underlying offence has actual and serious consequences.

As Sopinka J. said in DeSousa (at p. 967) and McLachlin J.repeated in Creighton (at p. 55): “The implicit rationale of the law in this area is that it is acceptable to distinguish between criminalresponsibility for equally reprehensible acts on the basis of the harm that is actually caused.” This rationale has no application to s. 218;there is neither a predicate offence nor any need to show that actual harm resulted from the conduct in the child abandonment offence. [60] On that point, I note that at the court of appeal level, the Crown suggested that the word “unlawfully” in s. 218 wasintended to imply that a violation of s. 215 constituted a predicate offence to child abandonment.

I disagree. Rather, I agree with RichardsJ.A. that the word “unlawfully” in s. 218 is mere surplusage that was left from the original text in

An Act respecting Offences against thePerson (1869), s. 26: see, e.g., R. v. Chartrand, (SCC), [1994] 2 S.C.R. 864, at pp. 886-87. The commission of a s. 215offence, or any other offence, is not required for purposes of a child abandonment conviction.

Section 218 has a broader application thans. 215, which only applies to specific individuals. To hold that a conviction under s. 218 is dependent upon a conviction under s. 215would overlook the words “[e]very one” in s. 218, would void para. (

b) of the s. 214 definition of meaning, and would render s. 218redundant, as it would serve the exact same purpose as s.

Section 218 does not provide for a greater sentence and therefore it is notmerely an enhanced form of s. 215, in the way that, for example, unlawfully causing bodily harm (s. 269, maximum sentence of 10years) is an enhanced version of assault (s. 266, maximum sentence of 5 years). [61] I should also refer to the offences based on criminal negligence: see, e.g., ss. 219, 220 and 221. Criminal negligence

is defined as conduct that “shows wanton or reckless disregard for the lives or safety of other persons” (s. 219). The text of thisprovision has fueled much debate about the required fault element. The use of the word “negligence” in the name of the offencesuggests an objectively defined standard consistent with the meaning of the word “negligence” in the common law of torts. On the otherhand, the words “wanton and reckless disregard” could be taken as describing actual knowledge of the risk created by the conduct andtherefore a subjective fault element: see R. v.

Anderson, (SCC), [1990] 1 S.C.R. 265, at pp. 269-70. Ultimately, theCourt decided that proof of intention or actual foresight of a prohibited consequence is not required. Rather, criminal negligence requiresa marked and substantial departure from the conduct of a reasonably prudent person in circumstances in which the accused eitherrecognized and ran an obvious and serious risk or, alternatively, gave no thought to that risk: R. v.

J.F., 2008 SCC 60, [2008] 3 S.C.R.215, at paras. 7-11. [62] This approach to the fault element in the criminal negligence offences does not in my view suggest that a similar,objective fault approach should be taken to the child abandonment provision that concerns us in this case. Unlike the criminalnegligence offences, the s. 218 offence is not described as being concerned with conduct that is governed by a community standardrather than an individual appreciation of the circumstances. [63] I turn to a fifth and final category, one strongly relied on by the Crown in its submissions.

That category consists ofthe duty-based offence in s. 215 of the Code. Consideration of this category and of this submission requires a closer look at the schemeof the Code and the Court’s decision in R. v. Naglik, (SCC), [1993] 3 S.C.R. 122. (

b) The Scheme of the Code [64] Various legal duties are set out in ss. 215, 216, 217 and 217.1, including duties to provide the necessaries of life andto use reasonable knowledge, skill and care in administering surgical or medical treatment. However, s. 215 is the only provision thatcreates an offence, that of failing to provide the necessaries of life. The Court in Naglik held that this offence is one of objective faultand the Crown appellant submits that the same reasoning should apply to the abandonment offence under s. 218. [65] Respectfully, this submission is not persuasive.

The s. 215 offence is structured entirely differently than the s. 218offence that concerns us here and the reasoning of Naglik is not applicable to the s. 218 offence. That reasoning in fact supports the viewthat subjective fault is required in s. 218. Finally, the different purposes served by both offences also support that view. [66] Consider first the differences in the text of the two provisions. Unlike the s. 218 child abandonment offence, the s.215 necessaries of life offence considered in Naglik is defined in terms of failure to perform specified legal duties.

What is more, thesespecified legal duties arise out of specified relationships between the person owing the duty and the person to whom the duty is owed. (The text of s. 215 is found in the Appendix.) [67] The essence of the s. 215 offence, then, is that it imposes legal duties arising out of defined relationships. It is clearthat the decision in Naglik was based on that premise.

Lamer C.J. writes, in Naglik: With respect to the wording of s. 215, while there is no language in s. 215 such as “ought to have known” indicating that Parliamentintended an objective standard of fault, the language of s. 215 referring to the failure to perform a “duty” suggests that the accused’sconduct in a particular circumstance is to be determined on an objective, or community, standard.

The concept of a duty indicates asocietal minimum which has been established for conduct: as in the law of civil negligence, a duty would be meaningless if everyindividual defined its content for him- or herself according to his or her subjective beliefs and priorities. Therefore, the conduct of theaccused should be measured against an objective, societal standard to give effect to the concept of “duty” employed by Parliament. [p.141] [68] The Crown submits that this reasoning applies equally to s. 218 because that offence, too, may be committed by aperson who fails in a legal duty to take charge of a child.

I do not accept this position. While failure to perform a duty imposed by lawon persons in particular relationships is the essence of the offence created by s. 215, this is not at all the case with respect to childabandonment under s. 218. This is why the reasoning of Naglik cannot apply to s. 218.

The child abandonment offence may becommitted by “[e]very one”; it is not restricted to persons in particular relationships or under specified, statutorily created legal duties.The concept of duty in the child abandonment offence becomes relevant only in relation to an omission and is found in the non-exhaustive definition of “abandon” or “expose”. Those terms include “a wilful omission to take charge of a child by a person who isunder a legal duty to do so”: para. (

a) of the s. 214 definition. In my opinion, the reference to “legal duty” in relation to omissions in thissection simply gives effect to the common law principle that criminal responsibility generally does not arise from an omission unlessthere is a pre-existing legal duty to act: see, e.g., Roach (2012), at p. 115; D. Stuart, Canadian Criminal Law: A Treatise (6th ed. 2011),at p. 95. Therefore, the effect of the reference to duty in para. (

a) of the s. 214 definition is to ensure that the offence applies to omissionsby those with a legal duty towards a child. However, the child abandonment offence does not impose any such duties and people with noduty may be liable, but only for positive acts captured, for example, by the words “dealing with” in para. (

b) of the s. 214 definition. [69] The brief comments about the child abandonment offence in both Stuart, at p. 96, and Roach (2012), at p. 116, donot support the view that the fault element of the offence is objective. Rather they point out, as I have just discussed, that the concept ofduty appears in this offence only in relation to omissions. As for the Manning and Sankoff treatise, it expresses the view the s. 218offence is “entirely superfluous” (p. 826) — a conclusion with which I disagree for the reasons I have already set out.

I note that some ofthe case law cited by Manning and Sankoff involved parents who were convicted of child abandonment for having knowingly left theirchild in risky circumstances: p. 827, notes 155-56; Christiansen, at para. 8; R. v. Holzer (1988), (AB KB), 63 C.R.(3d) 301 (Alta. Q.B.), at p. 303. [70] Further, it seems to me that the clearly different structures of the text of s. 218 on one hand, and the duty-basedoffence in s. 215 on the other, support the view that the s. 218 offence is different.

Where Parliament intended to base an offence onviolation of a duty, s. 215 shows that it could find the language to do so clearly. None of this sort of language appears in s. 218. [71] The distinct structure and wording of the child abandonment offence also counter any suggestion that its placementin 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: see, e.g., Pappajohn , at p. 146. 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. [ 72 ] 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. To take a stark example, criminal negligence causing death, with a possible punishment of life in prison, has an objective fault element requirement. Theft under five thousand dollars, which may be prosecuted by

summary conviction, is an offence not only requiring subjective fault but specific intent. 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. (

c) Conclusion on the Text of the Provision and Scheme of the Code [ 73 ] To sum up, none of the considerations that persuaded the Court to adopt an objective fault standard in the categories of offences I have just reviewed is present in the child abandonment offence under s. 218. The prohibition applies to everyone, not just to a particular group engaged in a regulated activity or standing in a particular, defined relationship with the alleged victim. Nothing in the text suggests an intention to impose a minimum and uniform standard of care.

There are no references in the text to “dangerous”, “careless” or “reasonable” conduct or any requirement to take “reasonable precautions”. There is no predicate offence and no actual harm is required by the provision. The provision does not create, define or impose a duty to do anything other than in the sense that all criminal offences could be considered to create a duty not to commit them. [ 74 ] I conclude that both what is present in s. 218 of the Code and its related provisions and what is absent from it strongly support the view that a subjective fault element is required. E.

Conclusion [ 75 ] In my view, the text, context and purpose of s. 218 of the Code show that subjective fault is required. It follows that the trial judge did not err in acquitting the respondent on the basis that this subjective fault requirement had not been proved. The Court of Appeal was correct to uphold the acquittal. V. Disposition [ 76 ] I would dismiss the appeal. The reasons of Rothstein and Moldaver JJ. were delivered by Moldaver J. — I. Introduction [ 77 ]

Section 218 of the Criminal Code , R.S.C. 1985, c. C-46 (“ Code ”), makes it an offence to abandon or expose a child under the age of 10 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 question presented in this appeal concerns the mental element, or mens rea , that applies to the proscribed consequences of abandonment or exposure, namely, the risk of death or permanent injury to the child’s health.

Specifically, is fault to be judged subjectively, which is to say, focusing on whether the accused actually knew that abandoning the child would put its life or health in danger? Or is it to be judged objectively, focusing on whether a reasonable person in the same circumstances would have known that abandoning the child would put its life or health in danger?

Notwithstanding this crime’s ancient lineage — and the vital purpose it serves in protecting the most vulnerable among us — it is a question about which this Court has not spoken. [ 78 ] The facts and judgments below have been set out by Cromwell J. for the majority, whose reasons I have had the opportunity of reading.

Like the majority, I too would uphold the respondent’s acquittal, but for reasons that differ from those of Justice Cromwell. [ 79 ] My colleague concludes that s. 218 requires subjective foreseeability of the consequences that follow or are likely to follow upon the child being abandoned or exposed.

Under this approach, to sustain a conviction, the Crown would be required to prove, among other things, that upon abandoning or exposing the child, the accused foresaw that his or her conduct placed or was likely to place the child at risk of death or permanent injury, and went ahead anyway, reckless as to the consequences. [ 80 ] Respectfully, I do not read the provision as requiring such a high degree of fault in respect of the proscribed consequences. Nor do I believe that such an

interpretation reflects Parliament’s will. [ 81 ] In its essence, s. 218 is child protection legislation. It seeks to protect a limited class of people (children under the age of 10) from two defined risks (death or permanent injury) that occur or are likely to occur from abandoning or exposing the child. And, as I will explain, the

section is aimed at three limited classes of people faced with a situation where a child under 10 is or is likely to be at risk of death or permanent injury: (1) those who have a pre-existing and an ongoing legal duty to take charge of the child; (2) those who choose to come to the aid of the child in that situation; and (3) those who place the child in that situation. [ 82 ] Construed this way, as I believe s. 218 is meant to be, penal negligence is sufficient to satisfy the fault component of the provision as it relates to the consequences of abandoning or exposing a child.

To prove penal negligence, the Crown must establish that a reasonable person would have foreseen that his or her conduct placed, or was likely to place, the child at risk of death or permanent injury and that the accused’s conduct constituted a marked departure from that expected of a reasonable person in the circumstances.

[83] The recognized tools of statutory

interpretation support the conclusion that penal negligence is the requisite faultelement for the proscribed consequences in s. 218 of the Code. In what follows, I propose to canvass the plain language of the provision,its legislative history, relevant scholarly opinion, and this Court’s precedents in an attempt to establish as much. But I also propose torely on some common sense. Indeed, when one steps back from the mechanistic and often result-driven application of the seeminglyendless and at times contradictory tools of statutory

interpretation, common sense may, and generally will, prove to be the best guide tostatutory

interpretation. It certainly is here, as I will explain. II. Analysis A. Understanding the Elements of the Offence of Child Abandonment [84] As with all offences, to secure a conviction under s. 218, the Crown must prove, beyond a reasonable doubt, that theconduct of the accused satisfies every element of the offence. For convenience, I set out the provision in its entirety: 218. [Abandoning child] Every one who unlawfully abandons or exposes a child who is under the age of ten years, so that its life is or islikely to be endangered or its health is or is likely to be permanently injured, (

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.

Section 214 of the Code defines the words “abandon” and “expose” for the purposes of s. 218, and reads as follows: 214. In this Part, “abandon” or “expose” includes (

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; [85] It bears noting that the offence under s. 218 is not concerned with

an act of abandonment or exposure in the abstract,or even the act of abandoning or exposing any child. Rather, it is concerned with

an act of abandoning or exposing a child under 10 sothat the child is subject to certain risks. There are thus three distinct elements, as follows: 1.

an act of abandonment or exposure, 2. of a child under the age of 10, 3. so that the child’s life is or is likely to be endangered or its health is or is likely to be permanently injured. [86] These three elements have been termed “acts”, “circumstances” and “consequences”. See D. Ormerod, Smith andHogan’s Criminal Law (13th ed. 2011), at p. 56. The act — here, abandonment or exposure — speaks to the conduct that, on its own orbecause of its consequences, the law seeks to punish.

The circumstances — here, a child under 10 — bring more specificity to theconduct by identifying certain facts or conditions that must be present. Finally, the consequences — here, the risk to the child’s life orhealth — are the result that the law seeks to prevent. Breaking an offence down into its various parts is important because, as ProfessorOrmerod observes, “the law may require different mental elements for the various constituents” (p. 56).

This is true with respect to s.218 and, for reasons I will explain, care must thus be taken to distinguish between the act, its circumstances and its consequences inassessing the requisite mens rea for the offence. [87] The mens rea of an offence “does not exist in the air or in the abstract but must be related to certain consequences orcircumstances” (K. Roach, Criminal Law (5th ed. 2012), at p. 164). As a general rule, a mental element, whether subjective orobjective, will accompany each physical element of a crime, be it the act, its circumstances or its consequences.

For example, as thethird element in s. 218 requires that the child’s life or health is or is likely to be placed at risk, absent an exception to the rule, there mustbe an accompanying mental element of some kind, whether subjective or objective, that addresses the accused’s state of mind in respectof the risk to the child. [88] Furthermore, it is worth recalling that a particular offence may well have some mental elements that are assessedsubjectively and others that are assessed objectively. In R. v.

Hinchey, (SCC), [1996] 3 S.C.R. 1128, at para. 80,L’Heureux-Dubé J., for the majority, refused to accept that “an offence must be either subjective or objective with no possible middleground”. In her view, the mens rea of a particular offence is composed of the totality of its component fault elements. The mere fact that most criminaloffences require some subjective component does not mean that every element of the offence requires such a state of mind. [Emphasis inoriginal; para. 80.] With that point in mind, one must be careful not to speak of a crime as requiring simply subjective or objective mens rea.

Suchconclusions “tel[l] only part of the story”, and a “more precise approach” requires identifying each mental element in relation to itscoordinate physical element (Roach, at p. 164). Accordingly, the task before us is to identify the mental element for each of the three

physical elements of the offence of child abandonment — the act, the circumstances and the consequences. [89] That brings me to the presumption that Parliament intends crimes to have a subjective fault element. My colleaguedoes a thorough analysis of the subject and concludes that the presumption of subjective fault is not an outdated rule of construction which is at odds with the modern approach to statutoryinterpretation repeatedly endorsed by the Court.

On the contrary, the presumption forms part of the context which the modern approachrequires to be considered. [para. 28] [90] I do not take issue with that observation. Care must be taken, however, to keep the presumption in its properperspective. As Morris Manning and Peter Sankoff observe in their treatise: While generally correct, even [the presumption of subjective mens rea] runs the possibility of being misinterpreted.

Although subjectivefault is clearly the preferred standard, this has not always extended to every element of the offence, and it is particularly controversial inrelation to the mental foresight required for particular consequences. [Emphasis added.] (Manning, Mewett & Sankoff: Criminal Law (4th ed. 2009), at p. 153) ityfor equally reprehensible acts on the basis of the harm that is actually caused” (p. 967). Thus, for so-called “predicate” offences, the lawrequires subjective mens rea only for the underlying act, while accepting objective mens rea for the consequences that flow from thatact.

As McLachlin J. (as she then was) aptly put it in R. v. Creighton, (SCC), [1993] 3 S.C.R. 3, at p. 54,“[c]onsequences can be important.” [92] More broadly, however, the adoption of objective mens rea for the consequences of a particular act is not confinedto predicate offences. Such a narrow approach would “not [be] consistent with the way in which this Court has defined standards offault” (Hinchey, at para. 81). In the end, “the question of which crimes can legitimately possess objective fault elements . . . will oftendepend on the wording of a particular

section as well as its legislative purpose and context” (para. 83). Bearing that observation in mind,this Court has concluded in certain cases other than those dealing with predicate offences that objective mens rea is the appropriatestandard with respect to the consequences of particular acts. See, e.g., R. v. Lohnes, (SCC), [1992] 1 S.C.R. 167(causing a disturbance); R. v. Nova Scotia Pharmaceutical Society, (SCC), [1992] 2 S.C.R. 606 (conspiracy to prevent orlessen competition unduly); R. v. Naglik, (SCC), [1993] 3 S.C.R. 122 (failing to provide the necessaries of life). [93] The same logic applies here.

For reasons I will develop, the wording of s. 218, its legislative purpose and its contextlead to the conclusion that objective mens rea is the standard against which the third element of the offence — the consequences ofabandoning or exposing a child — is to be measured. B. Some Common Sense About Child Abandonment [94] As Professor Don Stuart has observed, “[m]

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