In R. v. C.O., 2022 ONCA, February 4, 2022, the two accused were charged with the offences of failing to provide the necessaries of life to their child and unlawful confinement of the child, contrary to sections 279 and 215(2) of the Criminal Code. They were acquitted at trial, but convictions were entered in relation to both charges on appeal to the summary conviction appeal court.  The accused were granted leave to appeal to the Ontario Court of Appeal.

The evidence at the trial established that the child (J), who was four years of age at the time, lived with her parents in an apartment.  The police entered the apartment and “found partially eaten food throughout the apartment and cigarettes and garbage all over the living room floor. Some of the closets were full of bags containing garbage. The apartment reeked of urine and feces. There were flies everywhere and the walls were covered with fly feces…J.’s bedroom was particularly dirty. Her pillow and her bed smelled of urine. There was food on the mattress and insects buzzing around the food. The police found urine and feces on J.’s bedroom floor and a pile of old feces in her closet. J.’s pants were wet with urine and covered in grime. She was so dirty she had to be bathed before she could be medically examined. One of the officers testified that it was “impossible to breathe” in J.’s bedroom because the stench was so overpowering” (see paragraphs 7 and 8).

The appeal court judge “concluded the trial judge failed to consider the conditions of J.’s confinement when determining whether the confinement was a lawful restriction of J.’s liberty. She held the appellants’ explanation that they had confined J. to protect her, even if true, was not determinative on the unlawful confinement charge” (see paragraph 27).

The Ontario Court of Appeal:

The Court of Appeal confirmed the entering of the convictions by the appeal court judge, though it disagreed with her in relation whether risk of harm is an element of the offence.

Unlawful Confinement-“Lawful Authority”:

The Court of Appeal concluded that the lawful authority defence “extends only to conduct which is a reasonable exercise of parental authority done in furtherance of parental duties and responsibilities” (at paragraphs 35 to 40)  

The “lawful authority” defence at s. 279(2) in cases involving parents and their children recognizes that parents are entitled, if not obligated, by virtue of their parental duties and responsibilities to confine their children in the best interests of the children. The “lawful authority” defence however extends only to conduct which is a reasonable exercise of parental authority done in furtherance of parental duties and responsibilities. Parental conduct that is abusive, harmful to the child, degrading or otherwise beyond the bounds of acceptable parenting cannot shelter under the “lawful authority” defence: Magoon, at paras. 64-68; R. v. Bottineau, 2006 O.J. No. 1864 (Ont. S.C.), at para. 121, aff’d 2011 ONCA 194, 269 C.C.C. (3d) 227, at paras. 101-103, leave to appeal refused, [2011] S.C.C.A. No. 455.

It flows from the focus on the reasonableness of the parental exercise of authority that the “lawful authority” defence in s. 279(2) as applied in the parent/child situation must address not only the reason behind the confinement but also the factual context in which the confinement occurs. The court must consider the purpose, nature, and extent of the confinement in determining whether that confinement was a lawful exercise of parental authority over the child: R. v. Kematch, 2010 MBCA 18, 252 C.C.C. (3d) 349, at para. 104.

The parents’ reason for imposing the restraint on the child’s liberty will obviously be a key consideration. It is not however, the only relevant consideration. Other factors such as the location, manner, and duration of the confinement will also be potentially relevant, as no doubt will other considerations.

I agree with the SCAJ that the conditions of the room in which the appellants confined J. was relevant to whether the confinement was lawful. J.’s room was the dirtiest room in a very dirty apartment. There is an obvious difference when measuring the legitimacy of the exercise of parental authority, between confining a young child at night in a “normal” bedroom in which the child routinely sleeps and confining that same child in that same room when the room has become more akin to a garbage can or a toilet than a bedroom.

A trier of fact could well conclude, even if the appellants acted out of legitimate concern for J.’s safety, that locking her in a filthy, foul-smelling room, replete with human feces, decaying foods, and countless flies, was harmful, degrading and well beyond the bounds of acceptable parenting. The appellants’ failure to attend to J.’s personal hygiene while she was locked in her room only added to the degrading nature of the confinement.

I would dismiss the appeal on the unlawful confinement charge.

Failure to Provide the Necessaries of Life:

The Court of Appeal held that “risk of harm is an element of the offence. Indeed, on a close analysis of the elements of the offence in s. 215(2)(a)(i), it is plain that risk of harm as a consequence of the parents’ dereliction of duty is woven throughout the conduct and fault requirements of that offence” (at paragraph 41).

The Court of Appeal indicated that the phrase “necessaries of life” captures “those things which are integral to the health and safety of the child. Some specifics, like food, are self-evidently “necessaries of life”. Other things, like protection of children from physical harm, are also necessaries of life, but their meaning is situation specific. A necessary is something which, if not provided by the parent, will result in harm to the child’s health or safety. Protection of a child from harm is itself a necessary of life…Defining the phrase “necessaries of life” by reference to those things necessary to protect a child from harm to the child’s health or safety must include protection from risk of that harm if the section’s protective purpose is to be served. A reading of the phrase “necessaries of life” that triggered the obligation to provide necessaries only after harm had occurred to the child, would neuter much of the protective purpose of the duty created by s. 215(1)(a). On this view, a parent’s duty to protect the child from harm would arise only after the parent’s failure to act had caused harm to the child. The protection would come too late for the child” (at paragraphs 49 and 50).

The Court of Appeal indicated that “risk of harm to the child’s health or safety informs both the scope of the duty to provide the necessaries of life in a given circumstance, and the child’s need for those necessaries. Furthermore, 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” (at paragraph 65).

Did the Trial Judge Err in Refusing to Take Judicial Notice of the Risk Posed to J.’s Health and Safety?

At the trial, the Crown did not “lead any evidence, expert or otherwise, about the risk posed to J.’s health and safety by her living conditions. Instead, the Crown asked the judge to take judicial notice that the conditions posed a risk to J.’s health and safety” (see paragraph 66).  The Court of Appeal concluded that the trial judge erred in failing to take judicial notice that “J.’s personal hygiene and her living conditions posed a real risk to her health.”

The Court of Appeal held that the trial judge took an “unreasonably narrow view of the application of judicial notice in this case. He did so by focusing individually on factors relevant to J.’s living conditions. The question was not whether he could take judicial notice that the presence of feces of a certain age posed a risk to J.’s health, the question was whether the totality of the conditions described posed a risk. The trial judge’s focus on individual items referenced in the description of J.’s living conditions led him to fail to consider whether he could take judicial notice of a risk to J.’s health posed by the overall conditions…had the trial judge considered the cumulative effect of the conditions in J.’s room, and had the trial judge contextualized his judicial notice assessment by reference to J.’s age, the length and nature of her exposure to the conditions, and the activities in which she was engaged while in those conditions, he would inevitably have taken judicial notice that J.’s personal hygiene and her living conditions posed a real risk to her health” (at paragraphs 66 and 74).