I. Criminal Code of Canada, section 218 — Abandoning Child:
s. 218 of the Criminal Code makes it an offence for one to (a) unlawfully abandon or expose a child under the age of ten, where (b) its life is or is likely to be endangered or its health is or is likely to be permanently injured.
The Actus Reus
First, the child in question must be “unlawfully abandoned or exposed.” Second, either the child’s life must be or be likely to be endangered or its health must be or be likely to be permanently injured due to the abandonment.
What does it mean to abandon or expose?
Section 214 of the Criminal Code sets out that to “abandon” or “expose” includes
(a) a wilful omission to take charge of a child by a person who is under a legal duty to do so, and
(b) dealing with the child in a manner that is likely to leave that child exposed to risk without protection.
Whether the child was dealt with in a manner likely to leave them “exposed to risk without protection” is driven by the facts of the case. What is needed is a real risk — proof beyond a reasonable doubt of the risk to the child. A mere potential danger will not suffice. Whether this is met depends on a number of factors, such as the location, the conditions the child is left in, any specific dangers, and the time they are left for. For example, leaving a child in a cold car long enough that frostbite or hypothermia could have set in creates a “real risk” regardless of if it manifested, but leaving the child in the same scenario momentarily only creates a possibility of a risk and would not engage s. 218.
The legal duty in s. 214(a) towards a child is not limited to just “those who have ongoing responsibility for the children”, but rather it extends even “to those whose responsibility is temporary”, such as babysitters. If such a duty is owed, a wilful omission to take charge of the child may constitute child abandonment, where wilful means “by deliberate or purposeful conduct, with full knowledge of, or reckless of or indifferent to the consequences of his at of omission .”
The Mens Rea
It has been held that s. 218 requires subjective fault for a conviction. The accused must be found beyond a reasonable doubt to have known now that the alleged acts of abandonment or exposure would or were likely to constitute child endangerment or that they would or were likely to cause permanent injury to their health. Wilful blindness or recklessness will also suffice.
II. Criminal Code of Canada section 215 — Duty of persons to provide necessaries
Section 215(1)(a) of the Code creates a legal duty in every parent, foster parent, guardian, or head of a family to provide to a child under the age of 16 the necessaries of life. Section 215(2)(a) makes it an offence to fail without lawful excuse to perform that duty where the child is in destitute or necessitous circumstances, or failure to perform the duty endangers the child’s life, or causes or is likely to cause their health to be endangered permanently. As this is a Criminal Code offence, the required standard for conviction is that of proof beyond a reasonable doubt.
The Actus Reus
First, the legal duty is present. Any parent, foster parent, guardian, or head of a family owes the duty to provide the necessaries of life to a child under the age of 16 years.
Second, they then must fail without a lawful excuse to perform this duty to provide the necessaries of life. What constitutes a “lawful excuse” depends on the circumstances. For example, financial inability to provide the necessaries of life may suffice, but not if it is self-inflicted by one refusing to accept employment and nor does religious beliefs precluding medical assistance. Another individual or individuals providing or having previously provided necessaries when they are not legally obligated to do so is not a criminal defence.
Third, either (a) the child must be in destitute or necessitous circumstances, or (b) failure to perform the duty must endanger the child’s life or cause or be likely to cause their health to be permanently endangered. What constitutes “destitute or necessitous circumstances” depends on the facts of the case but has been previously found that a failure to provide necessaries of life may amount to necessitous circumstances and that the necessaries of life can include “food, clothing, shelter, and medical attendance necessary to sustain life.” “Necessary and destitute circumstances” do not require risk of harm .
The Mens Rea
It has been held for s. 215 only objective fault is needed to sustain a conviction. What is needed for s. 215 is a “marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanent endangerment to the health, of the child.” The accused does not need to be subjectively aware of destitute or necessitous circumstances or risk to life or health. All that matters is what they ought to have known.
It must be proven beyond a reasonable doubt that the actus reus requirements are met, and that the accused’s conduct was a “marked departure from the standard of care required by those circumstances.”
III Child, Youth and Family Services Act section 136(3) and (4) — Leaving Child Unattended and Allowing Child to Loiter
Section 136(3) of the Child, Youth and Family Services Act (CYFSA) states that no person in charge of a child under 16 years of age can leave the child without “making provisions for the child’s supervision and care that is reasonable in the circumstances.” Section 136(4) states that no parent of a child under 16 years of age shall either (a) let them loiter in a public place between the hours of 12am and 6am, or; (b) be in a place of public entertainment during those same hours unless accompanied by the parent or with a specific individual above 18 years of age that the parent authorizes.
Elements of the Offence
The text of s. 136(3) does not list any required mens rea for guilt. However, as the CYFSA is a provincial act and thus a regulatory statute, so in the absence of a mens rea requirement, there is a presumption of strict liability. What this means is that the Crown only has to prove the actus reus elements beyond a reasonable doubt, but the defendant has the ability to raise the defence of due diligence if they can prove their due diligence on the balance of probabilities(28).
For s. 136(3), the required actus reus elements are that (1) the accused must have had charge of the child, and (2) that they left the child without making provisions for their supervision and care that is “reasonable in the circumstances.” There is no exact formula for what is “reasonable in the circumstances”, but the criteria does not appear to be incredibly high as leaving a responsible 10-year-old with minor burns home alone for a couple of hours in order to buy medication was found to not be unreasonable in the circumstances.
The actus reus of s. 136(4) simply requires a child under the age of 16 between the hours of 12am and 6am to (a) loiter in a public place, or (b) be in a place of public entertainment without a parent or a specific individual over 18 years of age who was authorized by the parent.
The text of s. 136(4) uses the language “No parent . . . shall permit the child to.” The plain meaning of “permit” means one gives authorization or consent to someone doing something. I believe that this suggests a subjective mens rea requirement for s. 136(4). An objective fault element would go against the plain meaning of “permit” as if one was not subjectively aware of something occurring, they could not “permit” it. As such, I believe s. 136(4) has a subjective fault requirement that the parent knowingly allowed their child to be in the listed locations during the prohibited times.
IV. Leaving a child in a Car, at Home, or in Public
Leaving a child at Home
For s. 218, leaving a child at home alone with the “normal dangers of the home” has typically not been found to constitute abandonment31. However, a number of factors can affect if a “real risk” is created by abandoning their children. Specific dangers such as dangerous objects may elevate the risk to greater than the “normal danger of the home” and potentially create a “real risk”. Furthermore, leaving a child for an extended period of time could create a “real risk” even in a normal home. Furthermore, because of the subjective fault requirement, the accused must have been aware of, or at least wilfully blind or reckless as to the risk.
Section 215 only requires objective fault. As such, if there is anything in the home creating an objectively foreseeable risk to the life or health of the child, the accused may be liable even if they were not aware of that risk. Further, there is no requirement that proof of actual harm be present. Where the necessaries of life are not provided, and the child is found to be in “destitute or necessitous circumstances” s. 215 may be engaged even if there is no proof of action risk of harm. Whether the particular circumstances in the home create such circumstances depends on the facts but generally includes lack of food, shelter, care and medical attention necessary to sustain life.
Unlike the Criminal Code provisions. S. 316 of the CYFSA does not require any risk or harm to the child. All that is needed is that the accused had charge of the child, and then left them without making reasonable arrangements for their supervision or care. As such, even leaving a child alone with the “normal dangers of the home”, which was not enough to engage s. 218, has been stated to possibly be enough to engage s. 136(3).
Leaving a Child in a Car
Leaving a child alone in a car is more likely to create the conditions giving rise to a “real risk” and count as child abandonment or neglect. Temperatures below -12°C or above 27°C have been found to create the requisite risk when a child is left alone in a car. Adequate precautions can prevent a “real risk” from forming. While leaving a child in an unlocked car gave rise to a real risk of abduction, when the doors were locked that risk did not arise. What is needed is the circumstances creating a real risk and an awareness of the risk (or recklessness or wilful blindness to that risk) by the accused.
The necessaries of life include protection from harm and avoidance of child endangerment. Where leaving a child in a car gives rise to harm (e.g., through risk of abduction or dangerous temperatures), s. 215 will likely be engaged, as there will be a failure to provide necessities combined with either risk to life or health or a destitute or necessitous circumstance.
Similarly, to leaving a child at home, s. 316 of the CYFSA can be breached where the child is merely left without the requisite arrangements being made. As such, one with charge of a child may likely be found in violation of s. 316 for conduct that does not create an actual risk to the child. Leaving a child home alone was said to likely run afoul of s. 316, so it is likely that leaving a child in a car for any substantial amount of time would do the same.
Leaving the Child in Public
For s. 218, leaving a child alone in public is very likely to create the “real risk” required. Leaving a child alone in an unlocked car was found to have a “real risk” of abduction and for that reason I believe that leaving a child alone in public would create that same risk of child endangerment. As most people are aware at some level that there is a risk of abduction when leaving a child in public, it is likely that they would meet the subjective fault requirement, either through actual awareness of the risk, or through recklessness as to that risk .
Failure to provide necessaries has been found to include protection from harm. Leaving a child alone in public without any supervision seems to me to be devoid of any protection of harm. Risk of child abduction was found to create a “real risk” for s. 218 and as such it is likely that the same risk would suffice to create a “necessary or destitute circumstance” for the purpose of s. 215.
Leaving a child alone in public is more likely to infringe, s. 316 than leaving them alone at home or in a car. This is likely because the same level of care that may suffice for leaving a child at home would not be “reasonable” for leaving a child in public. For example, leaving a 10-year-old home alone for a couple of hours was not found to be unreasonable. However, leaving the same child alone in public for that same period of time would almost certainly be unreasonable. What is “reasonable” depends on the circumstances, so more is likely required to make the supervision and care requirements “reasonable” when leaving a child alone in public than in a car or at home.
Furthermore, s. 316(4) makes it a violation to knowingly permit a child under the age of 16 alone between 12am and 6am in public places or places of public entertainment without proper supervision .
This piece was written originally by Dilan Brar. Currently, Dilan Brar is a second-year law student at the University of Toronto.
- 1 Criminal Code, R.S.C. 1985, c. C-46, s. 218.
- 2 Ibid.
- 3 R v Bokane-Haraszt, 2007 ONCJ 228, 2007 CarswellOnt 3187 at para 23.
- 4 R v Holzer, 1988 CarswellAtla 279,  A.W.L.D. 1310 (referred to in R v Bokane-Haraszt, 2007 ONCJ 228 and R v A D H., 2013 SCC 28) at para 22.
- 5 Supra note 3.
- 6 Supra note 4.
- 7 R v Reedy, 58 C.C.C. (2d) 571, 1981 CarswellOnt 1249 at para 16.
- 8Supra note 3 at para 16.
- 9 R v A D H, 2013 SCC 28 at para 73-75
- 10R v Huang at para 8
- 11 Ibid at para 9.
- 12 Criminal Code, R.S.C. 1985, c. C-46, s. 215(1).
- 13 Ibid.
- 14 R v Yuman, 1910 Carswell Ont 617, 17 C.C.C. 474 at para 5.
- 15 R v Bunting 1926 Carswell Ont 81 at para 13; R v Yuman, 1910 CarswellOnt 617, 17 C.C.C. 474.
- 16 R v Klein, 1936 CarswellSask 75,  1 W.W.R. 734 at para 23-26.
- 17R v Tutton,  O.J. No. 44, 18 C.C.C. (3d) 328.
- 18 See R v McDonald 1942 CarswellOnt 371,  O.J. No. 319 (someone else providing necessaries is not a defence to a s. 215 charge, but the one the duty is owed to must still find themselves in destitute or necessitous circumstances or with risk to life or health).
- 19 Rex v Harenslak, 1936 CarswellAlta 63, 1 W.W.R. 1 at para (followed in R v McDonald, 1942 Carswell Ont 371).
- 20 R v S J  O.J. No. 669 at para 66.
- 21 R v Popen,  O.J. No. 921, 60 C.C.C. (2d) 232 at para 18.
- 22 R v O’Hara and Palmer, 2020 ONSC 4076 at para 39.
- 23 R v Naglik,  3 S.C.R. 122, 1993 CaswellOnt 116, 1993 at para 42-45
- 24 Ibid.
- 25 Ibid.
- 26 Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14 Sched. 1, s. 136 (3).
- 27 R v Sault Ste. Marie,  2 S.C.R. 1299, 1978 CarswellOnt 24 at para 58-61.
- 28 R v Wholesale Travel, 67 C.C.C (3d) at 229.
- 29 R v G (A) 2013 ONCJ 730, 2013 CaswellOnt 18503 at para 18 and para
- 30Catholic Children’s Aid Society of Toronto v M (C), 2011 ONCJ 648, 2011 CraswellOnt 13920 at para 91.
- 31 Supra note 3 at para 22.
- 32 Supra note 3 at para 23.
- 33 Ibid.
- 34 Supra note 22 at para 41
- 35 Ibid.
- 36 Supra note 19.
- 37 R v Peterson  OJ No 4450, 2005 CarswellOnt 5093 at para 34.
- 38 Supra note 3 at para 26.
- 39 R v Holzer; R v Huang
- 40 Supra note 4 at para 13.
- 41 Supra note 10 at para 11.
- 42 Supra note 4 at para 13.
- 43 Supra note 10 at para 9.
- 44 Supra note 21 at para 20.
- 45 Supra note 4 at para 13.
- 46 Supra note 30 at para 22.
- 47 Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14 Sched. 1, s. 136 (4).