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Criminal - Failure to Provide the Necessaries of Life [CCC s.215]. R. v. Marchant
In R. v. Marchant (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here in an interesting case of 'failure to provide the necessaries of life' [CCC s.215] by paramedic first responders:[1] Around 9:00 p.m. on December 2, 2017, first responders were dispatched to the scene of a shooting. The police were the first to arrive, followed by firefighters, and then paramedics. Yosif Al-Hasnawi, a 19-year-old university student, was lying on the sidewalk, surrounded by his friends and family. He had been shot in the abdomen with a .22 calibre hollow-point bullet. He did not have long to live. Time was of the essence, but none of the first responders were in a rush.
[2] The appellants were two paramedics who arrived on scene at approximately 9:09 p.m.[1] They concluded that the victim was only suffering from a superficial, non-penetrating wound that could have been caused by a pellet gun. They thought that his behaviour was rooted in a psychiatric condition, or possibly caused by drug or alcohol use. Accordingly, they treated the victim in a way that defied all protocols for addressing a patient suffering from a penetrating wound to the abdomen. They inappropriately lifted the victim from the ground, delayed leaving the scene, and did not route the patient to the area’s lead trauma hospital (“trauma hospital”), where his best chance of survival awaited. His vital signs sharply deteriorated en route to the area hospital specializing in psychiatric care (“psychiatric hospital”), and he was declared dead shortly after his arrival there.
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The Offence: Failing to Provide the Necessaries of Life
[52] Section 215 of the Criminal Code governs this offence. The relevant portions read as follows:Duty of persons to provide necessaries
215(1) Every one is under a legal duty ...
(c) to provide necessaries of life to a person under his charge if that person
(i) is unable, by reason of … illness … to withdraw himself from that charge, and
(ii) is unable to provide himself with the necessaries of life.
Offence
(2) Every person commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse to perform that duty if …
(b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently. [53] Failing to provide the necessaries of life is a penal negligence offence, the essence of which is to impose duties on individuals within the context of certain, defined relationships: R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269, at para. 67. When dealing with penal negligence offences, it is critical to keep in mind that the criminal law insists upon moral culpability before branding someone a criminal. Without vigilance, the law risks branding as criminal conduct that which is simply a departure from a civil standard of care. As Charron J. said in R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 34: “If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy.” See also R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 30. It is therefore the degree of negligence that matters when it comes to negligence-based offences because, as always, criminal liability must remain rooted in conduct meriting punishment: Beatty, at para. 35.
[54] This court has recently addressed the offence of failing to provide the necessaries of life in the context of a police officer failing to provide the necessaries of life to a detainee in R. v. Doering, 2022 ONCA 559, 162 O.R. (3d) 161, leave to appeal refused, [2022] S.C.C.A. No. 338. As Doherty J.A. explained in Doering, at para. 38, there are four elements to the offence, the first three of which relate to the actus reus.
[55] For the actus reus in this case, the Crown had to prove that the appellants: (i) were under a legal duty to provide the victim with the necessaries of life; (ii) that they failed to do so; and (iii) that the failure endangered his life.
[56] For the mens rea, the Crown had to prove that the conduct of the appellants represented a marked departure from the conduct of a reasonably prudent paramedic in circumstances where it was objectively foreseeable that the failure would endanger the victim’s life.
[57] The real issue in this case was mens rea. The central defence was that the appellants held an honest, reasonable, but mistaken belief that the victim was not suffering from a penetrating wound.
[58] Of course, when it comes to penal negligence, a reasonably held honest mistake of fact will constitute a complete defence. Again, this is because the law will not punish the “morally blameless”: A.D.H., at para. 154. Charron J. captured this concept in Beatty, at paras. 37-38:However, because the accused’s mental state is relevant in a criminal setting, the objective test must be modified to give the accused the benefit of any reasonable doubt about whether the reasonable person would have appreciated the risk or could and would have done something to avoid creating the danger.
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In the same vein, a reasonably held mistake of fact may provide a complete defence if, based on the accused’s reasonable perception of the facts, the conduct measured up to the requisite standard of care. [Emphasis added.] [59] Therefore, to provide a full defence, the mistake of fact must not only be honestly held, but it must also be reasonably held. I will come back to this concept when discussing the second issue.
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