Duties Tending to Preservation of Life

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DUTIES TENDING TO
PRESERVATION OF LIFE



215. (1) Every one is under a legal duty - 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)		to provide necessaries of life to their spouse or common-law partner; and
(ii)		is unable to provide himself with necessaries of life.
(2) Offence - 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.
(3) Punishment - Every one who commits an offence under subsection (2) is guilty of
(a)	an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b)	an offence punishable on summary conviction.
(4) Presumptions - 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(a)	[Repealed, 2000, c. 12, s. 93]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.

*Judicial Consideration* -

AGBC et al v Astaforoff and AG Canada - (1984), 6 CCC (3d) 498 (BCSC -Bouck, J); appealed (1984), 6 CCC (3d) 503 (BCCA)
	- This section does not mean that prison officials having someone under their care and control must force the necessaries of life upon that person when she is on a hunger strike but is rational and fully aware of what she is doing and has informed such officials that she does not want any medical attention and that these instructions are to remain in effect even if she loses consciousness or becomes incapable of making a rational decision. To force the necessaries of life upon a person could lead to all kinds of abuse. Further, idly standing by without encouraging a person to commit suicide is no crime under s224 of the Code. Nonetheless, it is the duty of every person to use reasonable care in preventing a person from committing suicide. While there may be a moral and legal duty to preserve the sanctity of life it would not be reasonable for prison authorities to force feed a person to prevent suicide in circumstances where there has been a long history of fasting, poor health, a danger that the person might die by applying the procedure necessary to force feed and where the person is free to leave the prison but chooses to remain there and starve herself to death. If she becomes unconscious or incapable of making a rational decision and therefore unable to make a free choice different considerations might apply.
	On appeal it was held that the Court had no power to make the kind of mandatory order sought to force feed and that no clear case for the making of a Declaratory Order had been made out. Further it was held that there was no statutory duty to feed a prisoner by force without the prisoner's consent but that did not mean that in certain circumstances Corrections authorities might not be entitled to answer claims made by prisoners fed without their consent that Corrections authorities had the power to do so in the circumstances although no duty to do so. In the circumstances the court was not satisfied that a declaration should be made although not satisfied either that a common law duty did not arise. The court suggested that practical steps could be taken by the governmental authorities in question to avoid the existing impass.



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