Neglect can lead to criminal charges

We sometimes hear of a person being charged criminally for “failure to provide the necessities of life.”

The charge is actually worded so that it refers to the necessaries of life, which means approximately the same thing: the food, clothing, shelter and care needed to stay alive and be healthy.

There is a duty, under section 215 of the Criminal Code, to provide basic necessaries to people to whom you owe a duty.

Section 215(a) deals with the duty owed to children younger than 16 by their parent, foster parent, guardian or head of the family. Section 215(b) sets out a similar duty to a spouse or common law partner and Section 215(c) refers to a duty owed to someone under your care, who by reason of detention, age, illness, mental disorder or other cause, is unable to withdraw from your care and is unable to provide themselves with the necessaries of life.

The basis for an offence under this section arises when a person to whom you owe that duty is found to be in destitute or needy circumstances or in situations where their life is threatened or their health is likely to be endangered permanently. 

This is an offence that contains a “reverse onus.” The presumption is that you have committed the offence of failure to provide necessaries when the person to whom you owe the duty is found to be in the above circumstances. The burden of establishing a lawful excuse is upon the accused. 

It is also important to note that you don’t have a lawful excuse to not provide for your spouse or child just because someone else is doing so.

Case law says the crown must establish a “marked departure from the conduct of a reasonably prudent person” in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk to life or the possibility of permanent endangerment to health.

The charge could be the more serious one of criminal negligence if the accused’s conduct goes so far as to demonstrate a “wanton or reckless disregard for the life and safety” of the person to whom the duty is owed. The specific facts and the mental state of the accused are key considerations as to which charge is appropriate.

Section 215(c) extends the duty beyond dependent children and spouses and can extend to prisoners in detention, disabled or old people under the care of a person or group of people and other vulnerable people who are under the control of another and needs care, such as medical attention.

Obviously, family neglect can also bring about proceedings under provincial statutes, such as child protection legislation and laws allowing for spousal support. 

However, neglecting the care and necessaries of those you have a duty to care for can also attract criminal penalties.

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