Assessing Mens Rea in Cases of Child Abandonment: R v ADH

In R v ADH, [2013] 2 SCR 269, the Supreme Court of Canada (“SCC”) articulated its position on the requisite fault element for the offence of child abandonment. While the SCC unanimously held that the accused in the case should be acquitted, it was split (5:2) on whether mens rea should be assessed subjectively or objectively.

The majority determined that a subjective standard is applicable. In what follows, I will focus on several salient points of dissent, in the hopes of offering insight into judicial reasoning around the issue of mens rea as it applies to child abandonment.

Facts

The case itself is “heart-rending,” though the SCC observes that it has a “happy ending” (para 2). The accused gave birth to a baby boy in the washroom of a Walmart store in Saskatchewan. Unaware of her pregnancy until the moment of birth, the accused attempted to hide her newborn child (whom she assumed was dead) and left the store. A customer later discovered the child and notified authorities. The child is now being raised by the accused’s mother.

The accused was charged with unlawfully abandoning a child under the age of 10 under section 218 of the Criminal Code, RSC 1985, c C-46. There is no question that she committed the actus reus of the offence (leaving behind the child at the Walmart store). At issue is whether, in assessing criminal culpability, her actions should be judged subjectively (did she know that abandoning the child would put the child’s life or health at risk?) or objectively (would a reasonable person have known the risks and acted differently?).

Point of Dissent

The SCC proceeds by analyzing the statute in question. Here, the majority and dissenting opinions offer divergent interpretations, both in terms of the broader context (i.e., legislative intent) and with reference to the construction of the statute itself (i.e., its textual meaning).

Writing for the majority, Justice Cromwell begins with the presumption that Parliament intends an element of subjective fault in criminal offences, a presumption that reflects the value that “the morally innocent should not be punished” (para 27). Justice Cromwell goes on to look at the legislative evolution of the child abandonment offence as well as the broad scope of its application, concluding that the subjective fault element ensures that “the reach of the criminal law does not extend too far” (para 41).

By contrast, Justice Moldaver, writing in dissent, characterizes section 218 as targeting a limited class of people—those who have an ongoing legal duty to care for a child or those who find themselves in the role of guardian. Given that the legislation is aimed at protecting a vulnerable group (children under the age of 10) from reckless behaviour, he makes the “common sense” inference that Parliament intended to impose a “minimum standard of conduct” in enacting the provision (para 96). As such, he argues that defences based on subjective mens rea are inconsistent with legislative intent.

Applying Precedent

These opposing interpretations are illustrated by the treatment of the SCC’s earlier decision in R v Naglik, [1993] 2 SCR 122 [Naglik], in which two adults were charged under section 215 of the Criminal Code for failing to provide the necessaries of life to their infant son. In Naglik, the SCC held that this offence is one of objective fault.

The majority view is that Naglik is inapplicable to the case currently under consideration, since the respective offences (abandonment and failing to provide the necessaries of life) are structured “entirely differently” (para 65). The SCC argues that whereas the section 215 offence imposes statutorily created legal duties (para 68), the concept of duty appears in the section 218 offence “only in relation to omissions” (para 69).

Justice Moldaver has a different understanding of the construction of the statutes, arguing that sections 215 and 218 are “sister provision[s]” in that both describe “duty-based offence[s]” (para 99). According to Justice Moldaver, allowing subjective mens rea defences for section 218 offences creates a “stark double standard” (para 106) given the precedent established in Naglik.

Conclusion

Ultimately, both the majority and dissent arrived at the same conclusion regarding the outcome of the case under consideration: the majority upheld decisions at trial and on appeal requiring subjective fault for the crime of child abandonment, while the dissent held that the accused was entitled to be acquitted on the grounds of her reasonable belief that her child was dead at birth. In delivering his dissenting opinion, Justice Moldaver observed that the crime of child abandonment is one with an “ancient lineage” (para 77). It is therefore surprising that the question of what constitutes moral blameworthiness in the context of the offence is something the SCC has only recently addressed.