R. v. B.H., 2023 ONCJ 502

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code . These subsections and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2) , read as follows: 486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES —

(1) Unless an order is made under

section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. . . .

(2.1) OFFENCES – The offences for the purposes of subsection (2) are (

a) an offence under

section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization; (

b) a terrorism offence; (

c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act ; or (

d) an offence under subsection 21(1) or

section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) LIMITATION – An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsections 486.4(1) to (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. B.H., 2023 ONCJ 502 DATE: 2023 11 09 COURT FILE No.: Toronto 4814-998- 22-40002287 BETWEEN: HIS MAJESTY THE KING — AND — B. H.

Before Justice Christine Mainville Heard on October 23 and 24, 2023 Reasons for Judgment released on November 9, 2023 Ian Laing............................................................................................... counsel for the Crown Eric Tweel......................................................................................... counsel for the accused Mainville J.: [ 1 ] B.H. had two daughters. They can only be identified here by their initials, X. and H. In late November 2021, H. tragically passed away following an incident for which Ms. H. was not responsible.

Another individual, H.’s father, was charged in relation to that incident. [ 2 ] About four months later, on March 23, 2022, Ms. H. was still grieving the loss of her young daughter and dealing with the fallout of those events when an incident happened with respect to her other daughter, X. This incident now brings her before the court. [ 3 ] At the time, Ms. H. was residing alone as a single mother with X., who was two years old. They lived in a basement apartment of a building in Toronto. Their unit has windows at ground level, giving onto a parking lot for the building.

On the other side of the building is a busy avenue. [ 4 ] On two separate occasions in the morning of March 23, 2022, X. was wandering alone in the parking lot and surrounding areas, in her pajama bottoms and slippers or shoes, not wearing any shirt or coat. It was a cold and grey morning. [ 5 ] Ms. H. was subsequently charged with failing to provide the necessaries of life to X., in relation to the lack of supervision of X. that morning. There is no evidence that Ms.

H. is otherwise an unfit mother, and no alleged sustained course of conduct beyond the events of March 23, 2022. [ 6 ] The Crown called a neighbour, the property manager, and one of the investigating officers to testify. Ms. H. testified in her defence. I acquitted her at the close of trial on October 24, 2023. These are my reasons for doing so.

Facts [ 7 ] At around 7:30 a.m. on March 23, 2022, Wilma Watson was standing in the lobby of the building where her daughter resides, and where she spends a significant amount of time, when she was approached by a couple indicating that they had just located a child alone outside the building. The child, X., accompanied them and was not wearing a top. Ms. Watson recognized the child who resided in the same building and offered to take her home. [ 8 ] Video surveillance later obtained by the police shows the young child running across the parking lot by herself, wearing only her pajama bottoms and footwear.

She can be seen on the video between 7:35 a.m. and 7:38 a.m., running back and forth in the lot. The video does not show the child exiting the apartment building. [ 9 ] Ms. Watson testified that she brought the child to what she recalled was the child’s unit and handed her to X.’s mother who thanked her. She informed the mother that the child had been outside and was cold, and that she should check her window as she assumed the child had crawled out the window. [ 10 ] Sometime after Ms.

Watson had returned to her daughter’s unit, an elderly neighbour knocked on the door to advise that a baby was running around the parking lot. Ms. Watson went down to retrieve the baby, who turned out to be X., dressed in the same way she had been previously. As X. was running fast and was some ways ahead of her by the time she got outside, she only caught up to her after X. had crossed the road as a car was approaching and another adult who was passing by stopped her. [ 11 ] Ms. Watson was annoyed that the child was out again in the same state of undress.

Instead of bringing the child back home, she therefore returned with the child to her daughter’s apartment, where the police were called. [ 12 ] There is no video surveillance of this second outing by the child. She is not captured on the footage of one of the video cameras obtained by the police, and the second video obtained inexplicably does not include images from the relevant timeframe, even though it was requested and purportedly obtained by the police. I have no doubt however that the child was retrieved from outside on this occasion, given that she was ultimately in Ms.

Watson’s care when the police were called, after Ms. Watson had already returned the child to her home. While there were some issues with Ms. Watson’s recollection of certain events, I do not doubt her account of what transpired outside as she chased the child around.

The 911 call suggests that this second incident occurred around 8:30 a.m. or shortly thereafter, given that the police were contacted around 8:51 a.m. [ 13 ] The property manager testified that the windows in the apartment building open wide and that the building is not air conditioned, leading some tenants to install air conditioning units in the windows. As such, some units do not have screens in the windows. She also testified that since a change in ownership sometime previously, there was no longer a superintendent on site at the building.

Tenants with issues needed to file complaints remotely for those to be addressed.

[ 14 ] It remains unknown how the child exited her apartment unit – or whether indeed she exited in the same manner each time. There are windows in each bedroom as well as in the living room and dining room, towards the kitchen. As set out below, Ms. H.’s best guess is that X. would have exited from Ms. H.’s bedroom window. [ 15 ] Ms. H. testified that she had had a lot of difficulty sleeping the previous night and indeed for a couple of weeks before that. Following the passing of her daughter H., she and the father had separated.

There had since been domestic incidents and after she told the father to leave, he had indicated he would return. Since then, she was fearful and would sleep in the living room rather than in her own bedroom to ensure no one was coming. [ 16 ] Ms. H. indicated that she started her morning around 7 a.m. and that her daughter had a routine and usually got up around 8:30 a.m. She opened the baby gate to X.’s bedroom and began preparing her breakfast. She then sat in the living room with the television on.

She had no inkling that X. was not in her bed sleeping until she heard her voice which was not coming from inside the apartment. She opened the apartment door to the hallway where she saw Ms. Watson with another woman, holding her daughter. She asked why they had her child. Ms. H. was informed that the child was seen outside, and she asked how she got outside. Ms. Watson said she didn’t know and suggested she check her windows. Ms. H. said thank you and closed the door. [ 17 ] Ms. H. was then very upset as she felt she could not catch a break, that it was one thing after another.

She had H.’s former bed mattress given that they had dismantled the girls’ bunk beds after H.’s passing, as it was no longer needed. X. liked to play and jump on the mattress. Ms. H. laid the mattress across the front door of the apartment such that X. could not open the door. She laid down on the mattress with X. and started to cry, but then got up as she is aware that she should not cry in front of her child to avoid traumatizing her. She picked up X.’s night shirt which the child had removed, changed her diaper and put the night shirt back on. [ 18 ] Ms. H. indicated that X. is not very vocal given that Ms.

H. did not speak much herself inside the home, so she did not ask her how she had escaped. She instead watched X. and observed her inching towards Ms. H.’s bedroom door and sneakily looking back at her mom. Ms. H. took her daughter’s hand and walked over to that bedroom, which was now being used as a storage room. She asked X. if this is how she got out, but the child didn’t answer. She saw that the window was closed but not locked, so she latched it shut. She did not understand how the child could have opened and closed the window and testified that she had never seen X. do that before. [ 19 ] Ms.

H. testified that she also “pulled up” the door to that bedroom, which had previously been open. There are three child locks on that door. One was placed higher given that X. is tall, so she primarily relies on that lock. The lock does not need to be activated – once the door is pulled up, there is a latch that attaches to the doorframe which makes a big boom when the door is opened. She closed the door and brought X. back to have her breakfast. [ 20 ] She did not check the window in X.’s bedroom because that one had a screen and was always locked.

She also knew X. had not gone out through the living room since she would have had to pass her, and the kitchen gate prevented it. So while she could not understand how X. had gone out, the only possibility appeared to be H.’s bedroom. [ 21 ] Ms. H. went to the kitchen to clean up and became emotional. At some point, she called her sisters who also resided in the building to see if they could look after X., but they were busy working. She went back and laid down on the mattress with X., crying and feeling defeated. [ 22 ] Ms. H. eventually dozed off and when she opened her eyes, X. was gone.

She does not know how long she dozed for. She called X.’s name and receiving no response, she got up and went to X.’s room, panicking. She then went to her own room and saw that the door was no longer closed, and the curtains were twisted. She assumed X. had gone out again. [ 23 ] Ms. H. removed the mattress that blocked the front door, grabbed her phone from the mattress to call her social worker, and ran outside to the parking lot.

She asked someone if they had seen a child and when that person said no, she continued running past the building and asked another passerby about the child, all the while being on the phone with her social worker to advise of the child’s disappearance. [ 24 ] When she returned towards the parking lot, she saw a police cruiser driving around the building which had not been there initially. She ran towards it. The social worker asked if the police were there for her.

When she approached the police officers and overheard them say “she’s here”, she assumed the social worker was correct and that they were there for her, so she stopped looking. [ 25 ] Ms. H. testified that she frequently kept her windows open and there had never been any issue. The heating is controlled for the entire building such that the only way to cool the unit is to open the windows.

When they first moved into the building, the then- superintendent had advised them to move the furniture in through the windows to avoid the stairs going down to their level or the need to walk around the entire span of the building to access the front entrance. The superintendent had removed the window meshes or screens for that purpose. There had also been an A/C unit in Ms. H.’s bedroom window when they moved in, so the screen was left off for that in the summers. [ 26 ] Ms.

H. also testified that social workers from the Children’s Aid Society (CAS) had visited the residence several times before to assess the child-safety measures in place, and that no one had ever advised her that there was an issue with the windows being open or that that was unsafe. Despite the windows frequently being open, X. had never attempted to exit through the windows before. After this incident, Ms. H. put all the screens back on the windows. There were no further incidents in the month following this occurrence, during which time X. had been returned to her care, and prior to her arrest on April 27, 2022.

The Applicable Principles [ 27 ] In a criminal trial, the accused person is presumed innocent. There is no obligation on the accused to do anything to establish his or her innocence. The presumption of innocence remains in place, unless and until the Crown has proven each essential element of the offences beyond a reasonable doubt. [ 28 ] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is

not enough for me to believe that the accused is probably or likely guilty. Reasonable doubt requires more than mere probability.Although it cannot be described with mathematical precision, reasonable doubt is a high standard, consistent with its role as a safeguardagainst wrongful convictions. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolutecertainty. [29] In assessing the evidence of the witnesses in this case, I must consider their credibility and reliability.

Credibility relates to thehonesty of the witness, including whether that person was trying to tell the truth and whether the witness was candid, sincere, biased,evasive or prone to exaggeration or minimization. Reliability relates to the accuracy of a witness’ testimony and involves a considerationof the person’s ability to accurately observe, recall and describe the events in issue. General Findings and Observations [30] This case is not a pure credibility or reliability case.

Even accepting what transpired outside the building that day, which is notgenerally disputed, I must determine whether the offence of failing to provide the necessities of life has been made out. This offenceprescribes a minimum level of care owed by certain persons, including parents, in respect of their children or other individuals who areunder their charge. [31] In determining whether the elements of the offence are made out, including whether there was a marked departure from that levelof care, I do however consider Ms.

H.’s account of her state of mind and of what was happening inside the apartment during the relevanttime: R. v. Beatty, 2008 SCC 5, at paras. 8 and 43. Her credibility and the reliability of that account is in issue and the framework set out by the Supreme Court of Canada in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 applies to that assessment[1]. I may acceptall, some or none of her evidence, as is the case with any witness. [32] I therefore begin with general findings relating to Ms. H.’s credibility and reliability. [33] I generally accept Ms. H.’s account of what transpired on the morning of March 23, 2022. Ms.

H. came across as a woundedperson. She has clearly suffered hardship. Understandably, she has not yet healed from her still-fresh wounds or made peace with whathappened to her daughter H. That led her to be an at-times dismissive and adversarial witness with the Crown. She was also an emotionalwitness who sped through parts of her evidence, no doubt to bring this most recent painful ordeal to a close as quickly as possible. As aresult, her account at times lacked clarity. But in the circumstances of this case, I do not find that these issues with her testimonyundermined her credibility and reliability.

They can be explained by her recent life circumstances, and the situation she now faced ofpotentially losing her second daughter. [34] There are certain details of Ms. H.’s testimony that I nevertheless do not accept. In particular, I do not accept her speculativeaccount of how her former partner may have been involved in this incident and in having gotten X. outside that day. It simply does notmake sense, even though Ms. H. may genuinely believe it. Altogether, however, this does not detract from her credibility or reliability inrelation to the rest of her narrative. Again, Ms.

H. continues to suffer deeply the loss of her daughter. This trauma and ensuing eventsrelating to her ex-partner may well have skewed her perception of what happened to her other daughter that day. Her fatigue that morningmay also render certain aspects of her account somewhat unreliable. [35] Nevertheless, I accept the gist of her evidence relating to the fact that she could not understand how X. escaped the apartmentthat morning and that she was unaware of her first escape until the child was returned.

I also accept that she took steps to prevent X. fromexiting the apartment anew, and that she fell asleep with X. on the mattress before awakening to her being gone. [36] I must still consider whether Ms. H.’s conduct amounted to a marked departure of the conduct of a reasonable parent in thecircumstances, and whether the Crown has proven the other elements of the offence beyond a reasonable doubt. Failing to Provide the Necessaries of Life [37] Ms. H. was charged under s. 215(2)(a)(

i) of the Criminal Code. That particular subsection makes it an offence for a parent, whoowes a duty to provide the necessaries of life to a child under 16, to fail to perform that duty, if the child is in destitute or necessitouscircumstances. The count against Ms. H. is particularized as having failed to perform her duty to provide the necessaries of life to herchild who was in destitute or necessitous circumstances requiring parental supervision. [38] The Crown argued that the child needed supervision, and that by failing to properly supervise her child, Ms.

H. was guilty of theoffence charged. [39] In terms of the conduct component or actus reus of the offence, the Crown first bears the burden of proving that the accused wasunder a legal duty, as a parent, to provide the necessaries of life to the child. This is not in dispute. [40] The Crown must also show that the accused failed to provide the “necessaries of life” to the child. While that term is not definedin the Criminal Code, the case law has helped define its scope.

There is no exhaustive list of the things that could constitute thenecessaries of life, but they capture “things which are integral to the health and safety of the child”: R. v. C.O., 2022 ONCA 103, at para.49. [41] In C.O., Doherty J.A. on behalf of the Court accepted that “protection of children from physical harm” is a necessary of life butthat its meaning is situation specific.

He further explained that “[a] necessary is something which, if not provided by the parent, willresult in harm to the child’s health or safety,” and that this “must include protection from risk of that harm if the section’s protectivepurpose is to be served”: C.O., at paras. 49-50 [emphasis in original]. [42] Importantly, as also made clear in C.O., at paragraph 51, not all harms will be captured: The duty to protect, which underlies the duty to provide the necessaries of life, does not demand that a parent protect a child from risk ofall harms, no matter how minor or speculative.

The harm in question must be reasonably foreseeable in the circumstances. One cannot

meaningfully talk of a duty to protect from a harm in the absence of any reasonable basis to conclude there is at least a risk of that harm.The harm must also relate to the child’s ongoing health and safety, and not merely the child’s comfort or wellbeing. The duty imposedby s. 215(1)(

a) is not to be the ideal parent. If the foreseeable harm to the child is minor and transitory, a failure to protect against thatharm will not constitute a failure to provide the necessaries of life. [Emphasis added.] [43] I accept that depriving a child of supervision or protection is one form of deprivation captured by the offence: see Joyal et al,Prosecuting and Defending Offences Against Children, Emond, 2019, at p. 246. In some cases, the deprivation will be in circumstanceswhere there is no risk or only a minor or speculative risk of harm to the child, such that there would be no offence made out.

In others,such as leaving a young child unattended in a busy public space, the risk of harm will be more significant and may, depending on thecircumstances, meet the requisite threshold. [44] Here, the two-year-old child was unsupervised outside in areas where cars were passing by. There was a clear risk to her safety, ifnot her life. The harm is reasonably foreseeable in those circumstances. However, that is not where Ms. H. left the child unattended.

Sheleft her unsupervised (by falling asleep) inside their home, where there appears to have been a way for X. to make her way outside.Therefore, to determine whether Ms. H. failed to provide the necessaries of life, there remains a question of what was reasonablyforeseeable to Ms.

H. or a reasonable parent in her circumstances that day as it relates to how X. ended up unsupervised and unattendedto outside – where the risk of harm was sufficiently important. [45] There is some overlap between this foreseeability assessment and the analysis of the fault element or mens rea of the offence,relating to what a reasonable parent would have done in the circumstances. In my view, and as set out further below, the mens rea hasclearly not been made out in this case, such that I need not decide whether this element of the actus reus has been proven.

Indeed, onthese facts, the foreseeability analysis is better addressed in relation to the mens rea of the offence, as opposed to whether there was afailure to provide the necessaries of life. [46] In terms of the actus reus, the Crown must also prove that the child was in “destitute or necessitous circumstances”. The defenceargues that s. 215(2)(a)(

i) must be interpreted to mean that the child must find themself in such circumstances, and there must be a failureof the parent to remediate the need. In other words, the defence argues that unlike the offence provided for in s. 215(2)(a)(ii), thenecessitous circumstances referenced in subsection (

i) must be shown to pre-exist the parental failure – they would be a pre-condition,not a consequence, of the failure. The failure would relate to not providing the necessary assistance to the child who is in destitute ornecessitous circumstances. [47] I do not accept this argument. It is true that contrary to subsection (i), the language used in subsection (ii) is specifically aboutthe consequences of the failure to perform the legal duty. In contrasting subsections (

i) and (ii) of s. 215(2)(a), Doherty J.A. at paragraph45 of C.O. states that “[u]nder subsection (i), the Crown must prove the child was in ‘destitute or necessitous circumstances’ when theparent failed to provide a necessary of life. Under the offence created by subsection (ii), the Crown must prove that the failure to providethe necessaries of life led to one of the three consequences to the child described in subsection (ii)” [emphasis added]. This distinctionappropriately captures the language used in the Code. [48] However, the language in subsection (

i) was not intended to exclude the possibility that the necessitous or destitutecircumstances resulted from the parental failure – it simply doesn’t require it. At paragraph 53 of C.O., Justice Doherty explains that bothwords (destitute and necessitous) “refer to the child’s condition when the parent fails in the duty to provide the necessaries of life. Bothwords refer to a child who is in need of the necessary that was not provided by the parent. The child’s need is assessed by the impact ofthe failure to provide that necessary on the child’s health and safety.

If the failure to provide the alleged necessary harms the child’shealth or safety, or puts the child’s health or safety at risk, it can be said the child is in need of protection from that harm, and therefore in‘destitute or necessitous circumstances’” [emphasis added]. See also R. v. S.J., 2015 ONCA 97, at para. 64. [49] Clearly, the failure of the parent (or other caregiver) can have created the necessitous circumstances. The child is then in need ofsomething that the parent has a duty to provide but is not providing.

As stated in Prosecuting and Defending Offences Against Children,supra, at p. 269, “[t]he Crown is not required to prove that the parent’s failure to perform their duty was ‘the cause’ of the child’s‘necessitous circumstances,’ or that the parent’s failure to provide the ‘necessaries of life’ resulted in specific consequences, such asendangerment of the child’s life.” [Emphasis added.] [50] In any event, in this case, X. certainly needed supervision and protection that morning when she was wandering alone outside,near traffic, and she did not have any such supervision. She was at risk of serious harm.

In my view, the Crown discharged its burden ofshowing that X. was in destitute or necessitous circumstances. [51] The mens rea, or fault element of the offence, requires the Crown to prove that the failure of the accused to perform the dutyconstituted a marked departure from the conduct of a reasonably prudent parent in all the circumstances. The offence is premised onestablishing an objective minimum standard of parenting from which the accused must have markedly departed to be found guilty. [52] McLachlin J., as she then was, described the objective mental element for negligence-based offences in R. v.

Creighton, (SCC), [1993] 3 S.C.R. 3, at paragraph 111: Objective mens rea … is not concerned with what the accused intended or knew. Rather, the mental fault lies in failure to direct themind to a risk which the reasonable person would have appreciated.

Objective mens rea is not concerned with what was actually in theaccused’s mind, but with what should have been there, had the accused proceeded reasonably. [53] Still, as set out above, evidence relating to the accused’s actual mental state at the time is relevant to the mens rea analysis, as itis one of the ways in which the purely objective standard has been modified to ensure compliance with the fundamental principle ofcriminal justice that the innocent not be punished: Beatty, at paras. 8, 43 and 47. [54] As explained at paragraph 43 of Beatty, “if an explanation is offered by the accused, then in order to convict, the trier of factmust be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in theconduct manifested by the accused.”

[55] The requirement that the risk be objectively foreseeable was explained by Doherty J.A. at paragraph 64 of C.O., which case dealtwith the same subsection of the Code (s. 215(2)(a)(i)): [T]he fault component consists of conduct which shows a marked departure from the conduct of a reasonably prudent parent incircumstances in which it was objectively foreseeable the child was in “necessitous circumstances”. That is, circumstances in which thechild’s health or safety were at risk and the child was in need of protection.

The requirement that the Crown prove, as part of the harmelement, that it was reasonably foreseeable to a prudent parent that the child was in need of protection, dictates that there must be someforeseeable risk of harm. Foreseeable risk of harm is, therefore, integral to the fault requirement for the offences created by s. 215(2)(a).[Emphasis added.] [56] In most cases, the child’s circumstances are such that they would be readily apparent to the parent or parents.

For instance, manycases relate to a failure to provide medical attention in circumstances where the child is seriously ill or in very poor physical health orsuffering from serious physical abuse. In other cases, children are not being properly fed or taken care of, such that they suffer frommalnutrition or are living in conditions that are grossly unhygienic. In such cases, the failure on the part of the parents is sustained andgoes on for some time, during which the child is in need. See, for example, C.O., at para. 9; R. v. J.F., 2008 SCC 60, at paras. 45-56; R.v.

Goforth, 2022 SCC 25, at paras. 6 and 8; and S.J., at para. 70. [57] Tellingly, s. 215(4)(

c) sets out a presumption that “evidence that a person has failed for a period of one month to make provisionfor the maintenance of any child of theirs under the age of sixteen years is, in the absence of any evidence to the contrary, proof that theperson has failed without lawful excuse to provide necessaries of life for the child” [emphasis added]. [58] Contrary to most offences, failing to provide the necessaries of life is a crime of inaction or omission – liability is premised on afailure to act, where there is a duty to do so.

While in some circumstances, a marked departure may well be established by a single graveor obvious failure, inaction or an omission that is sustained for some time can of course more readily be accepted as making out a failureto provide the necessaries of life. As made clear in S.J., at paragraph 54, “[a] parent is not required to run to a doctor or hospitalwhenever illness or the prospect of injury arises: Pertab, at paras. 35-37; R. v. Alexander, 2011 ONSC 980, at para. 61; and R. v. Boone,[2002] O.J. No. 2796, at paras. 27-34.” [59] The present case does not relate to a sustained course of conduct.

It is about a single morning – indeed about a single hour – inMs. H. and X.’s parent-child relationship. [60] The Court in S.J., at paragraph 54, reminded that “[t]he duty is not one of perfection. Similarly, mere negligence does not suffice.Rather, the question is whether there has been a ‘marked departure’”. [61] Section 215(2) cases relating to a failure to supervise are exceedingly rare. One, which resulted in an acquittal, related to a staffmember at a long-term care facility having left a vulnerable resident under her care in a sling in the bathtub unattended, which resulted inthe resident’s death: R. v.

Makara, 2023 ONSC 2608. Many cases of unsupervised children are dealt with under a regulatory framework,for instance, in Ontario, by way of the provincial offence of leaving a child unattended under the Child, Youth and Family Services Act,2017, S.O. 2017, c. 14, Sch. 1 (s. 136(3)). Most are unlikely to be prosecuted at all and may be solely addressed by children’s aidsocieties. [62] The criminal offence of failing to provide the necessaries of life holds parents and other caregivers to a uniform minimum andsocietal – as opposed to a personal – standard of conduct.

However, it does not purport to prescribe parenting techniques: R. v. Naglik, (SCC), [1993] 3 S.C.R. 122, at pp. 141-142. Rather, it sets a floor for the provision of necessaries. [63] I must first consider the foreseeability of the risk that, left unsupervised, two-year-old X. would exit her home and go wanderoutside – exposed to certain dangers such as cars driving nearby – for some not-insignificant period of time. [64] The accused’s personal characteristics do not inform the analysis, short of lacking the capacity to foresee the risk.

For example, aparent’s age or level of experience does not factor in the analysis. Indeed, as explained by Charron J. in Beatty, at paragraph 40: Short of incapacity to appreciate the risk or incapacity to avoid creating it, personal attributes such as age, experience and education arenot relevant. The standard against which the conduct must be measured is always the same — it is the conduct expected of thereasonably prudent person in the circumstances.

The reasonable person, however, must be put in the circumstances the accused foundhimself in when the events occurred in order to assess the reasonableness of the conduct. To reiterate the example used above, thereasonable person becomes the one who “without prior warning, suffers a totally unexpected heart attack, epileptic seizure or detachedretina” or becomes the one who “in the absence of any warning or knowledge of its possible effects, takes a prescribed medication whichsuddenly and unexpectedly” causes him to drive in a manner that is dangerous to the public.

By so placing the reasonable person, thetest is not personalized and the standard remains that of a reasonably prudent driver, but it is appropriately contextualized. [65] While Ms. H.’s personal characteristics therefore cannot be considered in assessing the reasonableness of her conduct thatmorning, the conduct of a reasonably prudent parent has to be assessed “in all the circumstances” that existed – that is, within the contextin which Ms. H. found herself that morning.

McLachlin J. first made that clear in Creighton, at paragraph 138: This is not to say that the question of guilt is determined in a factual vacuum. While the legal duty of the accused is not particularized byhis or her personal characteristics short of incapacity, it is particularized in application by the nature of the activity and the circumstancessurrounding the accused's failure to take the requisite care. As McIntyre J. pointed out in R. v.

Tutton, (SCC), [1989] 1S.C.R. 1392, the answer to the question of whether the accused took reasonable care must be founded on a consideration of all thecircumstances of the case. The question is what the reasonably prudent person would have done in all the circumstances. Thus a welderwho lights a torch causing an explosion may be excused if he has made an enquiry and been given advice upon which he was reasonablyentitled to rely, that there was no explosive gas in the area.

The necessity of taking into account all of the circumstances in applying theobjective test in offences of penal negligence was affirmed in R. v. Hundal, supra. [66] I accept Ms. H.’s evidence that she did not initially know that X. had somehow exited their apartment unit, nor can I infer that

this, in and of itself, is demonstrative of some form of negligence on Ms. H.’s part. I accept Ms. H.’s evidence that X. had not previously escaped or tried to escape from the apartment, at least from the apartment windows. I also accept that Ms. H. expected her to still be in bed sleeping at that time in the morning, 7:30 a.m., such that the lack of direct supervision for some time is not untoward. [ 67 ] X.’s first exit therefore came as a complete surprise, and Ms. H. cannot be faulted for it. Children can do the most unexpected things. They are not the most predictable creatures.

And they often surprise us in their capabilities and in particular, their agility.

The risk that X. would find herself outside that morning, when nothing had forewarned that possibility, was therefore not a reasonably foreseeable risk when it happened for the first time. [ 68 ] I accept however that X. finding herself outside that morning was a predictor of her potential to do it again, and that from that point in time, a reasonably prudent parent would have foreseen the risk of reoccurrence and would have taken at least some steps to prevent it, or otherwise ensure the child’s proper supervision. [ 69 ] That is what Ms. H. did. She was aware of the risk and took steps to address it.

I accept that she was stumped about how X. had gotten out, and despite that, she put in place some measures to prevent her from exiting the apartment on her own. Since she did not know how X. had gotten out initially, the measures she took to ensure X.’s safety were sensible. If these turned out to be insufficient, and if Ms. H. is to be blamed for subsequently falling asleep, it was one lapse on a single morning of X.’s life and Ms.

H.’s course of parenting. [ 70 ] The Crown suggested that in the circumstances, going to sleep – or being tired and putting herself in a position where she risked falling asleep – was inconsistent with what a reasonably prudent parent would have done. That may have been the case if Ms. H. had not taken any measures to prevent a reoccurrence of what had just happened before she fell asleep – in other words, if she had foreseen the risk that, if she fell asleep, X. might again escape to the outside, unsupervised. But she had taken measures to prevent that. [ 71 ] Ms. H. was a single parent.

She could not simply call on a nanny or a spouse for assistance. She called her sisters who were the ones potentially available to her, to see if they could take her daughter that morning – to ensure her supervision. They could not help. There was no superintendent on the premises who could have immediately attended to help secure windows or other points of entry. Wilma Watson suggested to Ms. H. that she check her window. Ms. H. did that and latched her bedroom window which had not previously been latched. She did not check X.’s bedroom window because it had a screen on it and she knew it to always be locked.

She placed a mattress in front of the front door. In my view, once the precautions that Ms. H. put in place were taken, a reasonable person would not have reasonably foreseen that the risk of X. escaping was still very much present. [ 72 ] I note that there is some difficulty in determining whether Ms. H.’s conduct departed markedly from the standard of care owed in the circumstances when there is no evidence as to how the child exited the apartment.

In most cases, including in negligence-based driving offences, there is specific conduct or known omissions that allow for such an assessment. [ 73 ] Be that as it may, I accept that a reasonable parent who had their young child returned to them after being inexplicably found outside the home would at least verify the most obvious means of exiting the apartment and secure any exits that were not secure for children, at least prior to having the child out of sight again. (I do not however opine on whether a failure to do so would amount to a marked departure and suffice to make out the criminal offence of failing to provide the necessities of life.

I do not need to make that determination in this case.) [ 74 ] The Court of Appeal in C.O. , at paragraph 65 , explained that “the objective fault requirement inevitably leads to a risk assessment on the way to determining whether the accused conduct constituted a marked departure from the conduct of a reasonably prudent parent in the same circumstances.” [ 75 ] I accept that an assessment of the risk of harm to X. that morning, upon her return to the apartment, would have led a reasonably prudent parent to supervise the child more closely or take precautions to avoid a reoccurrence. [ 76 ] This is not a case where Ms.

H. was indifferent to the child’s first escape and negligently allowed for a further escape, or failed to do anything to ensure it didn’t happen again. She was dumbfounded as to how the child got outside, but nevertheless took what measures she could think of to avoid a repeat scenario. Somehow, it happened again. I have no evidence of how the child in fact exited the apartment, and thus cannot conclude that Ms. H. was necessarily negligent in enabling that in some way. [ 77 ] This is also not a case where there was no supervision for an extended period, or on several different occasions over time.

This was one morning in Ms. H.’s life – and at a particularly difficult time in her life. Nor is it a case where Ms. H. left her residence entirely and left the young child home alone. She was at home in the apartment. [ 78 ] Nor is there any suggestion that Ms. H. simply let the child out of the apartment to go play outside on her own. Rather, she lay down next to her child when she accidentally dozed off.

Even if she had planned to doze off and have a nap, having put safety measures in place and having her child close to her, on the same mattress on the floor, I have significant doubt that the serious criminal offence of failing to provide the necessaries of life to a child would be made out. [ 79 ] However consequential their actions may be, parents are not always perfect. Nor are they expected to be. They make mistakes. They don’t always do their best even if they try. And accidents happen despite people’s best intentions. They can happen short of negligence.

And even negligent conduct – especially on one occasion – does not necessarily rise to the criminal standard of failing to provide the necessaries of life to a child. [ 80 ] A helpful case on this issue is the driving case of R. v. Beatty , 2008 SCC 5 . In that case, Mr. Beatty had been driving fine, according to other motorists, before his vehicle suddenly veered into oncoming traffic and collided with a vehicle, killing all three of its occupants. Mr.

Beatty was not sure what happened and assumed he had lost consciousness or fallen asleep, having been working all day in the sun. [ 81 ] Clearly, the act of traversing the solid centre line into the path of oncoming traffic is dangerous. But in addressing the mental element of the offence, the Supreme Court concluded that Mr. Beatty’s conduct was not, on an objective basis, a marked departure from

the norm, given the trial judge’s inference that he experienced a loss of awareness resulting in a momentary lapse of attention: Beatty , at paras. 51-52 . [ 82 ] Of course, the level of care and foresight of the risk must account for the nature of the activity being undertaken and risk of harm that may be occasioned: C.O. , at para. 51 . Clearly, a momentary lapse of attention or falling asleep at the wheel while driving can cause much more drastic and immediate consequences than falling asleep while supervising a young child in one’s own home. Despite that, Mr.

Beatty’s conduct – arguably despite the foreseeability of the risk of becoming drowsy and falling asleep given the day he had just spent working in the sun – did not amount to a marked departure from the norm.

As stated by the Court, there was no evidence of any deliberate intention to create a danger suggestive of a marked departure from the norm, and the momentary act of negligence was insufficient to support a finding of a marked departure from the standard of care of a prudent driver: Beatty , at paras. 51-52 . [ 83 ] I see no basis on which to conclude that, in taking some precautionary measures and subsequently succumbing to a brief sleep (it could not have been longer than a half hour or so, given the timing of the two incidents), Ms. H.’s own conduct did meet the criminal standard.

In my view, her parenting, in the circumstances that existed on March 23, 2022, did not fall below the minimum standard of care prescribed by s. 215(2)(a)(i). It was certainly not a marked departure from it. [ 84 ] Of course, the situation might be different if, as pointed out by McLachlin C.J. in Beatty , at paragraph 72 , there was additional evidence to show that a momentary lapse was part of a larger pattern that, considered as a whole, established a marked departure. No such pattern was pointed to here. [ 85 ] No more than that single lapse on Ms. H.’s

part can be inferred from the evidence adduced at trial. I am not prepared to conclude that a single lapse on a single morning by an otherwise fit parent constitutes a marked departure from reasonably prudent parenting in the circumstances and a failure to provide the necessaries of life. While t here may have been a lapse in parenting that morning, it was not criminal. Conclusion [ 86 ] The accused is acquitted. Released: November 9, 2023 Signed: Justice Mainville