[34] Section 215(1)(c) differs from section s. 215(1)(a), which imposes a duty on a “parent, foster parent, guardian or head of a family” to provide necessaries “for a child under the age of sixteen years”, and from s. 215(1)(b), which imposes a duty on spouses and common-law partners to provide necessaries of life to their spouses and partners. Section 215(1)(c) makes it clear that the duty to provide necessaries is not limited to these relationships but can arise in other circumstances. The duty arises when one person is under the other’s charge, is unable to withdraw from that charge, and is unable to provide himself or herself with necessaries of life. The phrase “necessaries of life” includes not only food, shelter, care, and medical attention necessary to sustain life but also appears to include protection of the person from harm: R. v. Popen (1981), 1981 CanLII 3345 (ON CA), 60 C.C.C. (2d) 232 (Ont. C.A.) at 240. Thus, s. 215(1)(c) obligations are driven by the facts and the context of each case.
[35] Subsection 215(2) imposes liability on an objective basis. The offence is made out by conduct showing a marked departure from the conduct of a reasonably prudent person having the charge of another in circumstances where it is objectively foreseeable that failure to provide necessaries of life would risk danger to life or permanent endangerment of the health of the person under the charge of the other. The personal characteristics of the accused, falling short of capacity to appreciate the risk, are not a relevant consideration. The use of the word “duty” is indicative of a societal minimum that has been established and is aimed at establishing a uniform minimum level of care: R. v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122 at paras. 37, 51 and 33 respectively.
[36] The objective basis of liability includes an assessment of whether the person in charge could have acted other than as he or she did. For example, in Naglik at para. 36, a “crucial consideration” was that the evidence indicated the services of a public health nurse were made available to Naglik to help her in caring for her child, given her age, education, and lack of experience with children. She refused to accept any assistance.
[37] The words “without lawful excuse” in s. 215(2) provide a defence and serve to prevent the punishment of the morally innocent. The obligation to provide necessaries is not absolute and may be excused, for example, where there is financial inability: Naglik, supra, and R. v. Yuman (1910), 1910 CanLII 197 (ON CA), 17 C.C.C. 474 (Ont. C.A.).
[38] On the other hand, I note that contributory negligence by the victim is not a defence for an accused charged with criminal negligence unless the injuries incurred are attributable solely to the victim: see Eugene G. Ewaschuk, Criminal Pleadings and Practice in Canada 2d ed. looseleaf (Aurora: Canada Law Book, 1987) at para 28:180, citing R. v. Lesuk, 2000 MBCA 24 (CanLII), [2000] 7 W.W.R. 462 (Man. C.A.) at para. 31 and other appellate decisions from Alberta, Saskatchewan, Nova Scotia, and Prince Edward Island.
[39] Section 215(2)(b) indicates that the failure to provide necessaries includes not only a failure to do a discrete act but also includes a failure to act in an ongoing relationship over a period of time: see Naglik, supra, at para. 36 in relation to section 215(2)(a)(ii), which is similar in wording to s. 215(2)(b).
[40] In addition to the foregoing, I would make the following observations. First, the relationship of the parties to each other is among the factors to consider in determining whether a person is in the charge of another. The dependency of the parent under a disability on an independent adult child is justified not only by their past course of dealing in which the parent supported the child but also by their relationship to one another in which an element of trust will usually be present. The history of the section supports the interpretation that the section was intended to require certain minimal standards in relation to dependants such as wives and children and was later broadened: see R. v. Middleton, [1997] O.J. No. 2758, at paras. 10-14. The mere breach of a federal or provincial statute, such as s. 32 of the Family Law Act, which imposes a duty on a child to support a parent, does not constitute a crime. It is nevertheless proper for the trier of fact to consider legislation governing the accused in order to determine whether the accused’s actions or inactions show a “marked departure” from the conduct expected: see by analogy R. v. Leblanc, 1975 CanLII 190 (SCC), [1977] 1 S.C.R. 339, R. v. Bergeron (1999), 132 C.C.C. (3d) 45 (Que. C.A.).
[41] Second, the word “charge” is not unknown to the criminal law in other contexts involving adults. In the impaired driving context, the court characterized having “care, charge or control” of a vehicle as requiring “a kind of domination as in the master-servant relationship and as in the parent-child or teacher-beginner relationship”: R. v. Slessor, 1969 CanLII 248 (ON CA), [1970] 1 O.R. 664 at 674. The court did not restrict the meaning of charge too far, however, stating, “‘Charge’, too, is a word of broad comprehension. One speaks of a person who is fixed with responsibility of supervision as one who is in ‘charge’”. The Ontario Environmental Appeal Board also considered the meaning of the word charge in Re Karge (1996), 21 C.E.L.R. (N.S.) 5 at para. 68-69. It referred to the dictionary meanings of the word and concluded essentially that it means to have the responsibility to take care of someone, something, or somewhere.
[42] Used in these contexts the word “charge” connotes, among other things, the duty or responsibility of taking care of a person or thing. Similarly, one of the definitions of charge in Black’s Law Dictionary, 8th ed. (St. Paul, Minneapolis: West Publishing, 2004) is “to entrust with responsibilities or duties e.g. to charge the guardian with the ward’s care”. What the definitions have in common is the exercise of an element of control by one person and a dependency on the part of the other.
[43] In assessing whether one person is in the charge of another, the relative positions of the parties and their ability to understand and appreciate their circumstances is a factor to consider. A parent who is not in full possession of his or her faculties may not appreciate that he or she cannot provide himself or herself with the necessaries of life and may not have the capacity to understand that he or she is in an unsafe or unhealthy environment that is likely to cause permanent injury. Just as some contributory negligence by the victim is not a defence to a charge of criminal negligence, the inability of the victim to appreciate his or her need for necessaries and the victim’s unwillingness to cooperate is not a defence for an accused charged with failure to provide necessaries. If the parent is otherwise in the child’s charge and the child cannot care for the parent due to the parent’s refusal to accept care, the child is obliged to seek the help of a community agency. See Regina v. Stone & Dobinsons, [1977] Q.B. 354 at 361.
[44] A further consideration in determining whether a person is in the charge of another is whether one person has explicitly assumed responsibility for the other, for example, by obtaining a power of attorney for personal care or by publicly acknowledging to others in the community by words or conduct an assumption of responsibility.
[45] The non-exhaustive criteria below illuminate the trial judge’s findings and the path he took to his conclusion that Arnold was in the charge of the appellant:
1. Arnold was dependent: The trial judge found that in his state of dementia, Arnold was unable to provide himself with the necessaries of life. As he never cooked, had no food in the apartment, and sometimes went days without food, he was dependent on someone else to provide him with food. The trial judge also accepted Dr. Lam’s evidence that Arnold needed assistance in choosing appropriate clothing to wear as well as assistance with his personal grooming.
2. The appellant had a familial relationship with Arnold and was aware of his father’s dependency. The trial judge found that Dennis was fully aware that his father was in need of the necessaries of life. It was manifestly obvious, particularly because Arnold lost up to thirty pounds during the winter and spring of 2000.
3. The appellant controlled Arnold’s living conditions and kept him in an unsafe environment. The trial judge found that the appellant had free access to Arnold’s rooms but kept all of the rooms he occupied locked when he was not there. The logical inference is that Dennis prevented Arnold from having access to the only working kitchen, bathing facilities, and properly working toilet in the house. The trial judge also found that the toilet in the basement had no seat, was filthy, worked poorly; and the environment in which it was located was unsafe because the stairs to the basement were poorly lit and had no handrail until near the bottom. The trial judge further found that the kitchen was unsafe even for a fit person.
4. The appellant had control over Arnold’s personal care. The appellant took steps to obtain the power to make decisions respecting Arnold’s personal care and had the ability to make decisions about his personal care. Put another way, at the request of Dennis and his sister, Arnold entrusted them with the ability to make decisions respecting his personal care. Quite apart from the power of attorney, when Dennis came home and Arnold was locked out, as frequently happened, the appellant took Arnold into his charge from the neighbours. Thus, both legally and publicly Dennis assumed responsibility for Arnold.
5. The appellant chose not to make decisions that would result in Arnold receiving the necessaries of life. Dennis was made aware of community services that could assist him with the care of his father. He took no steps pursuant to Const. Cutmore’s suggestions. (One suggestion, as revealed in the evidence, was to contact a church across the street that operated an extensive Meals-on-Wheels program.)
6. Arnold was incapable of withdrawing himself from the appellant’s “charge” due to age and illness. He was too old, feeble, and senile to withdraw himself from the appellant’s charge.
[46] When the trial judge’s reasons are considered in this manner, they disclose why the trial judge found that Arnold was under the appellant’s charge as well as why Arnold was unable to withdraw from his son’s charge. Thus, the reasons disclose why the trial judge convicted Arnold and satisfy the requirements of Sheppard, supra.
[47] With respect to the third element of the offence, namely, the failure to provide Arnold with the necessaries of life, the appellant relied on Linda’s evidence as contradicting the evidence that Dennis failed to provide Arnold with the necessaries of life and was under his charge. The appellant submits that the trial judge was required to resolve the conflict in the evidence. However, as Linda had not entered the house for at least six months prior to Arnold being apprehended, she was not in a position to testify about whether Dennis failed to provide Arnold with the necessaries of life. Her evidence did not raise a conflict that necessitated resolution by the trial judge. Thus the trial judge correctly found that the evidence was not really in dispute.
[48] Insofar as the legal test for determining when a person is under the charge of another is concerned, the evidence that Arnold did not wish to bathe or change his clothes does not negate the appellant’s having charge of him. The evidence simply supports the conclusion that Arnold had a mental disability that prevented him from exercising sound judgment to provide himself with the necessaries of life. This disability cannot be used by Dennis as a defence for failing to provide Arnold with the necessaries of life. Dennis could have called a community agency for help and did not. Further, there was no evidence that Arnold ever refused food yet, Dennis did not provide him with food regularly.
