R. v. Newton-Thompson

R. v. Newton-Thompson Collection Decisions of the Court of Appeal Date 2009-05-28 Neutral citation 2009 ONCA 449 Docket numbers C49348 Judges Feldman, Kathryn N.; Armstrong, Robert Patrick; MacFarland, Jean Louise Subject Criminal Decision Content CITATION: R. v. Newton-Thompson, 2009 ONCA 449 DATE: 20090528 DOCKET: C49348 COURT OF APPEAL FOR ONTARIO Feldman, Armstrong and MacFarland JJ.A. BETWEEN: Her Majesty the Queen in Right of Ontario (Attorney General of Ontario) Appellant And Charis Newton-Thompson, Stanley Gordon and Silvio Tallevi Respondents Alison Wheeler for the appellant Michael W. Caroline for the respondents Heard: February 11, 2009 On appeal from the judgment of Justice Bonnie Croll of the Superior Court of Justice, dated August 12, 2008, dismissing the application to quash the order of Justice of the Peace Gabriel S. John, dated May 8, 2008. Feldman J.A: Introduction [1] The appellants are teachers who are alleged to have failed to report “forthwith” a suspicion of harm to a child, contrary to ss. 72(1), (4) and (5) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “CFSA”). They were charged with this offence more than six months following the occurrence of the harm. The charges were quashed as statute-barred pursuant to the six-month limitation period set out in s. 76(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33 (the “POA”).[1] The sole issue on appeal is whether s. 72(1) creates one offence, or a continuing offence. If it creates one offence, the charges were laid out of time; if the offence is a continuing offence, then there is effectively no time limit on when charges may be laid until a report is made. Facts [2] The respondents were the principal and vice-principals of C.W. Jeffries Collegiate Institute. In October 2006, a female student at the school was sexually assaulted. Information regarding the assault came to the attention of the police on June 28, 2007, through the Falconer Inquiry into the shooting death of Jordan Manners, another student at the school. The respondents’ alleged failure to report their suspicions that the female student was in need of protection also came to the attention of the police at that time. The respondents were charged with failing to report suspicions that a child was in need of protection, contrary to s. 72 of the CFSA, on December 27, 2007. [3] The respondents brought a motion to quash the informations on the basis that they were laid outside the six-month limitation period in s. 76(1) of the POA. Justice of the Peace John granted the order. He found that the offence was not a continuing offence, but was complete once no report was made forthwith and, therefore, the charges were out of time. The Crown applied before Croll J. for an order in the nature of certiorari and mandamus that the charges were not statute-barred and should be allowed to proceed on the basis that the offence is a continuing offence until the report is made. Croll J. dismissed the application, agreeing with the Justice of the Peace that the offence is not a continuing offence. [4] The Crown appeals the decision of Croll J., and asks this court to find that the offence of failing to report forthwith a suspicion that a child is in need of protection is a continuing offence and, therefore, because the respondents never reported their suspicions, the charges were not out of time. Analysis (a) Statutory Context [5] The relevant subsections of s. 72 provide: 72. (1) Despite the provisions of any other Act, if a person, including a person who performs professional or official duties with respect to children, has reasonable grounds to suspect one of the following [from a list of physical and emotional harms or potential harms to a child either done or not prevented by a person with charge of the child – see the Appendix for the complete list including pending amendments not yet proclaimed into force], the person shall forthwith report the suspicion and the information on which it is based to a society:… [Emphasis added.] (2) A person who has additional reasonable grounds to suspect one of the matters set out in subsection (1) shall make a further report under subsection (1) even if he or she has made previous reports with respect to the same child. … (4) A person referred to in subsection (5) is guilty of an offence if, (a) he or she contravenes subsection (1) or (2) by not reporting a suspicion; and (b) the information on which it was based was obtained in the course of his or her professional or official duties. (5) Subsection (4) applies to every person who performs professional or official duties with respect to children including, … (b) a teacher, school principal, social worker, family counsellor, operator or employee of a day nursery and youth and recreation worker… [6] As the CFSA contains no limitation period for this offence, s. 76(1) of the POA applies. That section provides: 76.(1) A proceeding shall not be commenced after the expiration of any limitation period prescribed by or under any Act for the offence or, where no limitation period is prescribed, after six months after the date on which the offence was, or is alleged to have been, committed. (b) Single versus Continuing Offence [7] The issue in this case is whether s. 72(1) of the CFSA creates a single or a continuing offence. The proper approach to interpreting the meaning of a legislative provision is well-established. The Supreme Court has made it clear in a series of cases including Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, at para. 21, Bell Expressvu Ltd. Partnership v. Rex, [2002] 2 S.C.R. 559, at para. 26, and Bristol-Myers Squibb Co. v. Canada (Attorney General), [2005] 1 S.C.R. 533, at para. 37, that the proper approach to statutory interpretation is to read the words of an Act “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intent of Parliament”: see Elmer Driedger, The Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87; Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed., (Markham: LexisNexis, 2008), at p. 1. This is consistent with s. 64 (1) of the Legislation Act, 2006, S.O., c. 21, Schedule F, which provides: 64.(1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects. [8] The purposes of the CFSA are set out in s. 1 of the Act. The paramount purpose as stated in s. 1(1), “is to promote the best interests, protection and well being of children.” Additional purposes, consistent with the paramount purpose, are set out in s. 1(2). These purposes provide a principled framework and context within which to implement the provisions of the CFSA and to interpret whether the failure to report is a single or continuing offence. [9] Consistent with the proper approach to statutory interpretation, this court must decide whether interpreting the nature of the offence in s. 72(1) as a single or a continuing offence will best further the purposes of the CFSA outlined above. With particular regard to the primary purpose, the question to be answered is which interpretation will best protect children who may be at risk of harm by making it more likely teachers and other individuals who are subject to the statutory duty in s. 72(1), will report forthwith. [10] This court had occasion to consider a similar issue in Ontario (Workplace Safety and Insurance Board) v. Hamilton Health Sciences Corp. (2000), 51 O.R. (3d) 83. In that case, the issue was whether a statutory offence of failure to report an accident under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, Schedule A (the “WSIA”), constituted a single or a continuing offence. The section at issue was s. 21(1) of the WSIA which stated: An employer shall notify the [Workplace Safety and Insurance] Board within three days after learning of an accident to a worker employed by him, her or it if the accident necessitates health care or results in the worker not being able to earn full wages. [Emphasis added.] [11] The issue, again for limitation purposes, was whether the words “within three days after learning of an accident” meant that the offence was complete if the report was not made to the Workplace Safety and Insurance Board (the “Board”) within the three days, or whether it continued until a report was made. [12] The Crown took the position that the essential element of the offence was the failure to report. Amicus curiae counsel, who argued the position of the employer, submitted that the essential element of the offence was the timeliness of a report. These are effectively the positions of the parties in this case as well. [13] In Hamilton Health Sciences, the object of the WSIA was to promote workplace health and safety in a financially responsible and accountable manner including the return to work of injured workers and compensation for them. The Board could only provide compensation, rehabilitation and vocational training if and when it learned of an injury. Rosenberg J.A. concluded that the interpretation of the duty to report an accident within three days that would best achieve the object of the WSIA was to emphasize the duty to report over the timeliness of that report. [14] Rosenberg J.A. interpreted the phrase “within three days after learning of an accident” as providing the employer with a three-day grace period before the employer had the obligation to report. However, once the obligation took effect, it remained in effect until the employer complied with its duty. Otherwise, there would be a built-in incentive for the employer not to report until the six-month limitation period for a charge to be laid had passed, in the hope that the Board would not learn of the injury within that time. There were also financial consequences to the employer, unrelated to any charge that might be laid, for every workplace injury. [15] In Hamilton Health Sciences, as the injury to the employee had already occurred, the timing of the report was not critical to ensuring that the purpose of the WSIA was carried out. The grace period could have been longer without impeding that purpose. What was critical was that a report be made so that the Board would know about the injury and take the necessary steps to implement compensation and rehabilitation programs. [16] In this case, the Crown acknowledges that reporting “forthwith” a suspicion of possible harm to a child is critical to the effective operation of the CFSA. The legislature has recognized that there is urgency in such a situation; it provided no grace period as part of the obligation to report. [17] The Crown submits, however, that it is necessary to interpret s. 72(1) as creating a continuing offence in order to ensure that a report will be made eventually, even if it is made late. It argues that to interpret the section as creating one offence, failure to report “forthwith”, will mean that once a person with an obligation to report a suspicion of a risk of harm to a child has failed to report as soon as the person had the information and the suspicion, the person will have committed the offence, and will have an incentive to remain silent until the limitation period has passed. It argues that if the section creates a continuing offence, then the person, such as a teacher, with an obligation to report, will be in jeopardy until a report is made, and that that ongoing jeopardy will be an incentive to report eventually. [18] However, in making this argument, the Crown acknowledges that under its interpretation, the person has committed the offence by the original failure to report forthwith and continues to commit the offence until a report is made. Therefore, whenever a person makes a late report, the person is effectively admitting the offence of failing to report a suspicion forthwith. [19] Given that reality, in my view it is unclear how construing the section as creating a continuing offence would encourage reporting. To the contrary, applying the Crown’s reasoning, a person who has already committed the offence by failing to report forthwith could decide to remain silent forever and hope that no one ever finds out, rather than report and be inevitably subject to a charge. [20] The application judge dealt with this submission, in my view, very effectively. First, she pointed out that the scheme of the CFSA already contemplates an ongoing duty to report in s. 72(2); where new information comes to the attention of the person with the duty, that person must report the new information. Second, because there is a duty on every teacher as well as other named professionals to report, there is always the possibility, if not the likelihood, that someone else may learn of information that raises the same suspicion and will report, so that every person with a suspicion will know that they cannot rely on the information remaining secret. Most importantly, the application judge emphasized the integrity and commitment of childcare professionals, stating, at para. 24: [I]n my view, in the case of child care professionals, the suggestion that they would not report when they suspected that a child was in need of protection out of some sort of self-interest does not ring true and does a disservice to the profession. In contrast to an employer under the [WSIA, the statute at issue in Hamilton Health Sciences] a child care professional is simply a third party observer of the child, who has no direct stake in the outcome of reporting (except for the benefits that accrue to all members of society when children are properly cared for.) With no direct self-interest to counter, the [CFSA] does not require the same safeguards that were found to be necessary in the [WSIA], to ensure reporting. [21] It seems to me that the real problem for the Crown with this type of offence is that it is very difficult for the police to obtain information that the offence of failing to report forthwith has been committed. The limitation period under s. 76(1) of the POA begins to run when the offence is committed, not when the police learn of it. By the time the police have information that the offence may have been committed, the limitation period may well have expired. [22] This problem arises from the nature of the offence itself and the operation of the limitation period. The primary purpose of the statutory duty to report, and of the offence of failing to report, is to encourage the reporting of information that a child may be in danger of harm from the person with charge of that child, which information may only become known by a teacher or a healthcare professional in the course of that person’s professional relationship with the child. It is because the information is in many cases “secret”, that the statutory duty to report a suspicion forthwith was viewed as necessary for the protection of the child. However, that same secrecy means that unless someone else has the same suspicion, reports as required and also knows that another person knew and did not report, or the child goes to the authorities, it may be very difficult, and sometimes impossible, for the police to learn that the offence of failure to report forthwith has occurred. [23] However, this is a problem caused not by the nature of the offence as single or continuing, but by the operation of the limitation period which runs from the date of the offence, rather than from the date when the authorities learn of the offence. The legislature recognized this problem following the Hamilton Health Sciences decision. As the application judge noted, the legislature amended the WSIA by enacting a two-year limitation period that runs not from the date of the offence (the failure to report), but from the date when the most recent act or omission came to the attention of the Board: see s. 157.1(1) of the WSIA.[2] [24] To complete the analysis, it is necessary to consider other indicia of the legislature’s intent to create either a single or a continuing offence. A continuing offence was described by the Supreme Court of Canada in R. v. Bell, [1983] 2 S.C.R. 471, at p. 488, as follows: A continuing offence is not simply an offence which takes or may take a long time to commit. It may be described as an offence where the conjunction of the actus reus and the mens rea, which makes the offence complete, does not, as well, terminate the offence. The conjunction of the two essential elements for the commission of the offence continues and the accused remains in what might be described as a state of criminality while the offence continues. [25] The Crown also relies on the description of a continuing offence given by the Supreme Court of Victoria in R. v. Industrial Appeals Court, Ex parte Barelli’s Bakeries Pty Ltd., [1965] V.R. 615, that was approved by this court in Hamilton Health Sciences, at para. 15: A continuous or continuing offence is a concept well known in the criminal law and is often used to describe two different kinds of crime. There is the crime which is constituted by conduct which goes on from day to day and which constitutes a separate and distinct offence each day the conduct continues. There is, on the other hand, the kind of conduct, generally of a passive character, which consists in the failure to perform a duty imposed by law. Such passive conduct may constitute a crime when first indulged in but if the obligation is continuous the breach though constituting one crime only continues day by day to be a crime until the obligation is performed. [26] The Crown submits that failing to report forthwith a suspicion that a child is in need of protection is “the kind of conduct, generally of a passive character, which consists in the failure to perform a duty imposed by law.” [27] I agree that breaching a duty by failing to report information forthwith could be legislatively drafted as an initial offence that continues until the report is made. However, there is no indication in the wording of s. 72(1) that the offence is intended to be interpreted as a continuing offence until a report is made. As already discussed, there is the requirement that the report be made “forthwith”. There is no language that states that the duty to report forthwith continues until the report is made. Nor does the CFSA provide a penalty that is incremental until a report is made. In contrast, for example, where an offence is committed under s. 206 of the CFSA in respect of the provision of residences and residential care, an offender is liable to pay a fine for each day that the offence continues. Conclusion [28] Applying the same test as was applied by this court in Hamilton Health Sciences, to the extent there may be any ambiguity in the wording of the offence in s. 72(1) of the CFSA, to best achieve the purpose of protection of children, should the court place emphasis on the duty to make a report, or on the timeliness of that report being made “forthwith”? In my view, the interpretation that best ensures that childcare workers understand that their obligation is to report any suspicion “forthwith” is the interpretation that emphasizes the timeliness of the report. I conclude, therefore, that the offence is a single offence, rather than a continuing offence. [29] I would dismiss the appeal. Signed: “K. Feldman J.A.” “I agree Robert P. Armstrong J.A.” “I agree J. MacFarland J.A.” RELEASED: “KF” May 28, 2009 Appendix The Child and Family Services Act, R.S.O. 1990, c. C.11, s. 72 (1)-(5), reads as follows, including pending amendments not yet proclaimed into force: Duty to report child in need of protection 72.1 (1) Despite the provisions of any other Act, if a person, including a person who performs professional or official duties with respect to children, has reasonable grounds to suspect one of the following, the person shall forthwith report the suspicion and the information on which it is based to a society: 1. The child has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person's, i. failure to adequately care for, provide for, supervise or protect the child, or ii. pattern of neglect in caring for, providing for, supervising or protecting the child. 2. There is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's, i. failure to adequately care for, provide for, supervise or protect the child, or ii. pattern of neglect in caring for, providing for, supervising or protecting the child. 3. The child has been sexually molested or sexually exploited, by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual molestation or sexual exploitation and fails to protect the child. Note: On a day to be named by proclamation of the Lieutenant Governor, paragraph 3 is repealed by the Statutes of Ontario, 2008, chapter 21, subsection 3 (1) and the following substituted: 3. The child has been sexually molested or sexually exploited, including by child pornography, by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual molestation or sexual exploitation and fails to protect the child. See: 2008, c. 21, ss. 3 (1), 6. 4. There is a risk that the child is likely to be sexually molested or sexually exploited as described in paragraph 3. 5. The child requires medical treatment to cure, prevent or alleviate physical harm or suffering and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, the treatment. 6. The child has suffered emotional harm, demonstrated by serious, i. anxiety, ii. depression, iii. withdrawal, iv. self-destructive or aggressive behaviour, or v. delayed development, and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child. 7. The child has suffered emotional harm of the kind described in subparagraph i, ii, iii, iv or v of paragraph 6 and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm. 8. There is a risk that the child is likely to suffer emotional harm of the kind described in subparagraph i, ii, iii, iv or v of paragraph 6 resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child. 9. There is a risk that the child is likely to suffer emotional harm of the kind described in subparagraph i, ii, iii, iv or v of paragraph 6 and that the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to prevent the harm. 10. The child suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child's development and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, treatment to remedy or alleviate the condition. 11. The child has been abandoned, the child's parent has died or is unavailable to exercise his or her custodial rights over the child and has not made adequate provision for the child's care and custody, or the child is in a residential placement and the parent refuses or is unable or unwilling to resume the child's care and custody. 12. The child is less than 12 years old and has killed or seriously injured another person or caused serious damage to another person's property, services or treatment are necessary to prevent a recurrence and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, those services or treatment. 13. The child is less than 12 years old and has on more than one occasion injured another person or caused loss or damage to another person's property, with the encouragement of the person having charge of the child or because of that person's failure or inability to supervise the child adequately. 1999, c. 2, s. 22 (1). Note: On a day to be named by proclamation of the Lieutenant Governor, section 72 is amended by the Statutes of Ontario, 2008, chapter 21, subsection 3 (2) by adding the following subsections: Reporting child pornography (1.1) In addition to the duty to report under subsection (1), any person who reasonably believes that a representation or material is, or might be, child pornography shall promptly report the information to an organization, agency or person designated by a regulation made under clause 216 (c.3). 2008, c. 21, s. 3 (2). Seeking out child pornography not required or authorized (1.2) Nothing in this section requires or authorizes a person to seek out child pornography. 2008, c. 21, s. 3 (2). Protection of informant (1.3) No action lies against a person for providing information in good faith in compliance with subsection (1.1). 2008, c. 21, s. 3 (2). Identity of informant (1.4) Except as required or permitted in the course of a judicial proceeding, in the context of the provision of child welfare services, otherwise by law or with the written consent of an informant, no person shall disclose, (a) the identity of an informant under subsection (1) or (1.1), (i) to the family of the child reported to be in need of protection, or (ii) to the person who is believed to have caused the child to be in need of protection; or (b) the identity of an informant under subsection (1.1) to the person who possessed or accessed the representation or material that is or might be child pornography. 2008, c. 21, s. 3 (2). Retaliation against informant prohibited (1.5) No person shall dismiss, suspend, demote, discipline, harass, interfere with or otherwise disadvantage an informant under this section. 2008, c. 21, s. 3 (2). See: 2008, c. 21, ss. 3 (2), 6. Ongoing duty to report (2) A person who has additional reasonable grounds to suspect one of the matters set out in subsection (1) shall make a further report under subsection (1) even if he or she has made previous reports with respect to the same child. 1999, c. 2, s. 22 (1). Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (2) is repealed by the Statutes of Ontario, 2008, chapter 21, subsection 3 (3) and the following substituted: Ongoing duty to report (2) A person who has additional reasonable grounds to suspect one of the matters set out in subsection (1) or to believe that a representation or material is, or might be, child pornography under subsection (1.1) shall make a further report under subsection (1) or (1.1) even if he or she has made previous reports with respect to the same child. 2008, c. 21, s. 3 (3). See: 2008, c. 21, ss. 3 (3), 6. Person must report directly (3) A person who has a duty to report a matter under subsection (1) or (2) shall make the report directly to the society and shall not rely on any other person to report on his or her behalf. 1999, c. 2, s. 22 (1). Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (3) is repealed by the Statutes of Ontario, 2008, chapter 21, subsection 3 (3) and the following substituted: Person to report directly (3) A person who has a duty to report under subsection (1) or (2) shall make the report directly to the society, a person who has a duty to report under subsection (1.1) shall make the report directly to any organization, agency or person designated by regulation to receive such reports, and such persons shall not rely on any other person to report on their behalf. 2008, c. 21, s. 3 (3). See: 2008, c. 21, ss. 3 (3), 6. Offence (4) A person referred to in subsection (5) is guilty of an offence if, (a) he or she contravenes subsection (1) or (2) by not reporting a suspicion; and (b) the information on which it was based was obtained in the course of his or her professional or official duties. 1999, c. 2, s. 22 (2). Note: On a day to be named by proclamation of the Lieutenant Governor, section 72 is amended by the Statutes of Ontario, 2008, chapter 21, subsection 3 (4) by adding the following subsections: Same (4.1) A person is guilty of an offence if the person fails to report information as required under subsection (1.1). 2008, c. 21, s. 3 (4). Same (4.2) A person is guilty of an offence if the person, (a) discloses the identity of an informant in contravention of subsection (1.4); or (b) dismisses, suspends, demotes, disciplines, harasses, interferes with or otherwise disadvantages an informant in contravention of subsection (1.5). 2008, c. 21, s. 3 (4). See: 2008, c. 21, ss. 3 (4), 6. Same (5) Subsection (4) applies to every person who performs professional or official duties with respect to children including, (a) a health care professional, including a physician, nurse, dentist, pharmacist and psychologist; (b) a teacher, school principal, social worker, family counsellor, operator or employee of a day nursery and youth and recreation worker; (b.1) a religious official, including a priest, a rabbi and a member of the clergy; (b.2) a mediator and an arbitrator; (c) a peace officer and a coroner; (d) a solicitor; and (e) a service provider and an employee of a service provider. 1999, c. 2, s. 22 (3); 2006, c. 1, s. 2. [1] The parties agreed, for the purpose of this proceeding, that the triggering incident for any applicable time limit was the October 2nd , 2006, sexual assault. [2] Section 157.1(1) of the WSIA states: “A prosecution for an offence under this Act shall not be commenced more than two years after the day on which the most recent act or omission upon which the prosecution is based comes to the knowledge of the Board. 2001, c. 9, Sched. I, s. 4 (5)” Section 157.1(1) does not apply to the offence created under the WSIA of making false or misleading statements or representations to the Board: see s. 149 (1).