R. v. A.D.H.

R. v. A.D.H.
Collection
Supreme Court Judgments
Date
2013-05-17
Neutral citation
2013 SCC 28
Report
[2013] 2 SCR 269
Case number
34132
Judges
McLachlin, Beverley; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache
On appeal from
Saskatchewan
Subjects
Criminal law
Notes
SCC Case Information: 34132
Decision Content
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 reasonable person would foresee is likely to endanger a child’s life or expose it to permanent injury, common sense suggests that Parliament would not provide accused persons with a host of defences based on their individual characteristics. Doing so would effectively defeat the provision’s purpose of imposing a societal minimum standard of conduct, since crimes of subjective fault require an assessment of personal 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 central difficulty with holding that s. 218 is, in its entirety, a subjective mens rea offence. If the great bulk of people to whom the provision applies have a pre‑existing and ongoing legal duty to take charge of children who fall below the age of 10, it hardly seems reasonable that they should be judged against a subjective mens rea standard when the very same people who run afoul of the duty‑based provision next door (s. 215 (failure to provide necessaries)) are judged on a penal negligence standard in light of this Court’s decision in R. v. Naglik, [1993] 3 S.C.R. 122. The result would be a double standard — an objective standard under s. 215 and a subjective 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 of whom are properly subject to an objective standard with respect to the consequences element of s. 218 . The s. 214 definition should be restricted in scope as applying only to persons falling into the following three categories: (1) those with a pre‑existing and ongoing legal duty 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) those who actually place the child in that situation. Interpreting the scope of s. 218 in this way goes a long way toward addressing concerns about 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”. It is one of two offences located under that heading — the other being s. 215 . This provides some indication that Parliament intended that s. 218 be construed as a duty‑based offence. It seems anomalous that Parliament would insert a non‑duty‑based offence into a thicket of duty‑related provisions. The scenario becomes even more remarkable when one appreciates that s. 218 is concerned with inherently dangerous conduct that places or is likely to place the lives and safety of helpless young children at risk. This is the very type of situation 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 placement among other duty‑based provisions in the Criminal Code and the scholarship on s. 218 — leads to the conclusion that the offence of child abandonment is duty‑based.
The legislative history of s. 218 further supports the conclusion that the fault element for s. 218 is penal negligence. The provision 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 its sister 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, an objective mens rea standard does not punish the morally blameless. In the present circumstances, the trial judge found that the respondent honestly believed that her child was dead at birth and that this belief was objectively reasonable. As such, she was entitled to be acquitted based on the defence of honest and reasonable mistake of fact.
Cases Cited
By Cromwell J.
Considered: R. v. Naglik, [1993] 3 S.C.R. 122; referred to: R. v. Daviault, [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), 60 C.C.C. (2d) 104; R. v. McIntosh, [2008] O.J. No. 5742 (QL); R. v. Bokane‑Haraszt, 2007 ONCJ 228 (CanLII); R. v. Christiansen, [1997] O.J. No. 5733 (QL); R. v. R. (J.), 2000 CarswellOnt 5325; R. v. Gosset, [1993] 3 S.C.R. 76; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; Sweet v. Parsley, [1970] A.C. 132; Watts v. The Queen, [1953] 1 S.C.R. 505; R. v. Rees, [1956] S.C.R. 640; Beaver v. The Queen, [1957] S.C.R. 531; R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299; R. v. Prue, [1979] 2 S.C.R. 547; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. Théroux, [1993] 2 S.C.R. 5; R. v. Lucas, [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), 18 O.L.R. 384; R. v. Buzzanga (1979), 25 O.R. (2d) 705; R. v. L.B., 2011 ONCA 153, 274 O.A.C. 365, leave to appeal refused, [2011] 3 S.C.R. x; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Hundal, [1993] 1 S.C.R. 867; R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60; R. v. Finlay, [1993] 3 S.C.R. 103; R. v. DeSousa, [1992] 2 S.C.R. 944; R. v. Creighton, [1993] 3 S.C.R. 3; R. v. Chartrand, [1994] 2 S.C.R. 864; R. v. Anderson, [1990] 1 S.C.R. 265; R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215; R. v. Holzer (1988), 63 C.R. (3d) 301.
By Moldaver J.
Considered: R. v. Naglik, [1993] 3 S.C.R. 122; referred to: R. v. Hinchey, [1996] 3 S.C.R. 1128; R. v. DeSousa, [1992] 2 S.C.R. 944; R. v. Creighton, [1993] 3 S.C.R. 3; R. v. Lohnes, [1992] 1 S.C.R. 167; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; R. v. Browne (1997), 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), 124 C.C.C. 176; R. v. Miller, [1983] 1 All E.R. 978; R. v. Lucas, [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), 25 O.R. (2d) 705; R. v. L.B., 2011 ONCA 153, 274 O.A.C. 365, leave to appeal refused, [2011] 3 S.C.R. x; Leary v. The Queen, [1978] 1 S.C.R. 29; R. v. George, [1960] S.C.R. 871; R. v. Daviault, [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, 366 Sask. 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 CarswellSask 10, 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), 2009 CarswellSask 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. Facts 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 reasonable doubt that the respondent intended to abandon her child (paras. 23-26). The accused had been credible in her testimony. 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 also relied on the evidence of Dr. Simpson, who testified that, “[u]nder these circumstances of an unknown pregnancy and a premature, precipitous birth, it is understandable that the accused thought the child was not alive and that she would be scared or panicked, not request help and immediately leave the scene of the birth” (para. 24). Thus, the trial judge found the respondent not guilty and 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. He found that the respondent had acted on the basis of the mistaken but reasonable belief that her child was dead and concluded that the trial judge’s verdict of acquittal should be upheld on that basis.
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 element should 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 same circumstances and, second, that her conduct was a marked departure from the conduct expected of a reasonable person in those circumstances. Penal negligence is the fault element that applies to the offence of failing to provide a child with the necessaries of life under 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 fault element requires proof at least of recklessness, in other words that the accused persisted in a course of conduct knowing of the risk which it 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 consequences and deliberate failure to do so. But here, the element of risk (“is likely to”) is part of the definition of the prohibited consequences: the prohibited 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 fault element would require the Crown to show at least recklessness, that is, that the accused actually knew of the risk to the child’s life or health. (Wilful blindness would also suffice, but was not argued in this case. I also note that self-induced intoxication is not relevant here and 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 in the context of this general intent offence. Simply by way of example, one would have to consider among other things issues such as whether the ratio of R. v. Daviault, [1994] 3 S.C.R. 63, applies, whether its application would or should be any different depending on whether the offence requires subjective or objective fault and whether the child abandonment offence falls within the exclusion from the self-induced intoxication defence set out in s. 33.1(3) of the Code relating to offences that include as an element any 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 should nonetheless be dismissed because she acted on the basis of a reasonable mistake of fact, that is, that the child was dead when she left him. I do not need to address this submission as I conclude that the fault element is subjective and therefore that the trial judge did not err 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 scant jurisprudence 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), 60 C.C.C. (2d) 104 (Ont. D.C.J.C.C.), at pp. 106-8. Others have either applied an objective standard or been unclear about the standard: R. v. McIntosh, [2008] O.J. No. 5742 (QL) (Ct. J.), at paras. 32-33; R. v. Bokane-Haraszt, 2007 ONCJ 228 (CanLII), 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, having regard to the purpose of the section and the applicable principles of statutory construction”: R. v. Gosset, [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 harmoniously with the scheme of the statute, its objective and the intention of Parliament: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at p. 41 (quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87).
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 that have long been held to have subjective fault requirements do not expressly say so and even when Parliament decides to expressly set out fault requirements, it does not use language consistently: M. Manning and P. Sankoff, Manning, Mewett & Sankoff: Criminal Law (4th ed. 2009), at pp. 148-49. As a result, the courts must, and often do, infer the fault element: see, e.g., Pappajohn v. The Queen, [1980] 2 S.C.R. 120, per Dickson J. (as he then was), at p. 146; Sweet v. Parsley, [1970] A.C. 132 (H.L.), per Lord 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 text read in light of its full context supports the conclusion that subjective fault is required. I will begin my analysis by touching on an important presumption of parliamentary intent that applies here and then turn to the purpose, text and scheme of the provision. In the course of that analysis, I will explain why, in my opinion, the Crown’s position that this is an offence of penal negligence must be rejected.
C. The Broader Context
[22] I will review three elements of the broader context of the child abandonment provision: the presumption of legislative 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 crimes to 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, [1953] 1 S.C.R. 505, at p. 511; R. v. Rees, [1956] S.C.R. 640, at p. 652; Beaver v. The Queen, [1957] S.C.R. 531, at pp. 542-43; R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, at pp. 1303 and 1309-10; R. v. Prue, [1979] 2 S.C.R. 547, at pp. 551 and 553; R. v. Bernard, [1988] 2 S.C.R. 833, at p. 871; R. v. Martineau, [1990] 2 S.C.R. 633, at p. 645; R. v. Théroux, [1993] 2 S.C.R. 5, at p. 18; R. v. Lucas, [1998] 1 S.C.R. 439, at para. 64. Perhaps the classic 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 is without mens rea . . . .
. . . Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Mere negligence is excluded from the concept of the mental element required for conviction. Within the context of a criminal prosecution a person who fails to make such enquiries as a reasonable and prudent person would make, or who fails to know facts he should have known, 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 legislative intent because it has not always been applied. The Crown notes that there are many offences in the Code that do not require subjective fault and further that there is no absolute rule requiring complete symmetry between the fault element and the prohibited consequences of the offence. In my view, however, these points do not negate the existence of the presumption of legislative intent. They show merely that 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 do not, on their own, prescribe the outcome of interpretation, but rather set out broad principles that ought to inform it. As Professor Sullivan has observed, presumptions of legislative intent, such as this one, serve as a way in which the courts recognize and incorporate important values into the legal context in which legislation is drafted and should be interpreted. These values both inform judicial understanding of legislation and play an important role in assessing competing interpretations: 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 be assumed 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 of Rights as Dialogue Between Courts and Legislatures” (2005), 55 U.T.L.J. 733. Parliament must be understood to know that this presumption 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 important value underlying our criminal law. It has been aptly termed one of the “presumptive principles of criminal justice”: R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, per Charron J., at paras. 22-23. While the presumption must — and often does — give way to clear expressions of a different legislative intent, it nonetheless incorporates an important value in our criminal law, that the morally innocent should not be punished. 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 to punishment, unless the commission of the crime was voluntarily directed by a willing mind. . . . Parliament can, of course, by express words, create criminal offences for which a guilty intention is not an essential ingredient. Equally, mens rea is not requisite in a wide category 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 of consequences, 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 with the modern approach to statutory interpretation repeatedly endorsed by the Court. On the contrary, the presumption forms part of the context which the modern approach requires to be considered.
[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,