Canadian Criminal Law/Offences/Failing to Provide the Necessities of Life
|Failing to Provide the Necessities of Life|
|s. 215 of the Crim. Code|
|Election / Plea|
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
|Minimum||18 months jail|
|Maximum||5 years jail|
Duty of persons to provide necessaries
215. (1) Every one is under a legal duty
- (a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;
- (b) to provide necessaries of life to their spouse or common-law partner; and
- (c) to provide necessaries of life to a person under his charge if that person
- (i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and
- (ii) is unable to provide himself with necessaries of life.
(2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies on him, to perform that duty, if
- (a) with respect to a duty imposed by paragraph (1)(a) or (b),
- (i) the person to whom the duty is owed is in destitute or necessitous circumstances, or
- (ii) 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 endangered permanently; or
- (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.
(4) For the purpose of proceedings under this section,
- (a) [Repealed, 2000, c. 12, s. 93]
- (b) evidence that a person has in any way recognized a child as being his child is, in the absence of any evidence to the contrary, proof that the child is his child;
- (c) evidence that a person has failed for a period of one month to make provision for the maintenance of any child of theirs under the age of sixteen years is, in the absence of any evidence to the contrary, proof that the person has failed without lawful excuse to provide necessaries of life for the child; and
- (d) the fact that a spouse or common-law partner or child is receiving or has received necessaries of life from another person who is not under a legal duty to provide them is not a defence.
R.S., 1985, c. C-46, s. 215; 1991, c. 43, s. 9; 2000, c. 12, ss. 93, 95; 2005, c. 32, s. 11.
Proof of the Offence
In addition to the essential elements of time, location, identity, the Crown should also prove the following:
- the accused was subject to a duty under s.215(1) to provide necessities of life, by being either:
- as a parent, foster, parent guardian or head of family to a child under the age of 16
- a spouse or common law partner
- a person in charge to someone who is unable to provide themselves with necessities of life and unable to withdraw from the charge, due to detention, age, illness, mental disorder, or other causes
- the person to whom the duty is owed is "in destitute or necessitous circumstance" due to a breach of the duties or
- the accused caused or likely to have caused the person to whom the duty is owed endangerment of life or health endangered permanently;
- there is no lawful excuse for doing so
The purpose of s. 215 is to establish a uniform minimum level of care to be provided to certain designated persons, a societal standard rather than a personal standard.
"Necessaries of life" are necessaries that "tend to preserve life and not necessaries in their ordinary legal sense".
Failure to seek medical attention can be a failure to provide.
Factors to consider whether the there is a duty, includes the severity of the injury and the knowledge that it occurred.
Where the duty is found, the crown must prove:
- the accused acts or omissions which led to the failure to provide necessaries of life were a marked departure from the conduct of a reasonably prudent person in similar circumstances, and
- it was objectively foreseeable that the failure to provide necessaries would lead to a risk of danger to the life or permanent endangerment to the health of the person to whom the duty is owed.
"Endangers" refers to exposing someone to danger, harm or risk but does not connote actual injury or damage.
- R. v. Naglik, 1993 CanLII 64 (SCC),  3 SCR 122
- R. v. Brooks (1902), 5 C. C. C. 372 (BCCA)
- R. v. R. P.,  O. J. No. 5109 at para. 29
- R. v. Alexander, 2011 ONSC 980 cited in R. v. Turley  B. C. J. No. 540, at para. 146
- R. v. Turley  B. C. J. No. 540
- also see R. v. Letourneau  O. J. No. 96 at paras 94 and 95