While it is not generally the function of the criminal law to impose positive duties upon people, in some, albeit relatively rare circumstances, our law punishes those who fail to act and in failing to act their failure may be enough to warrant punishment for that failure to meet a lawful requirement.
Example of a Crime Based Upon a Failure to Act
The warden of a large federal prison in London Ontario, the Elgin Middlesex Detention Centre (the “EMDC)”, was charged with failing to provide the ‘necessaries of life’ to an inmate contrary to section 215 of the Code. Section 215 of the Criminal Code creates an explicit duty on the part of persons in authority, such as a parent or guardian or jailer, to provide the necessaries of life to those that they are under a legal duty to protect. The offence is committed when a person under a legal duty to protect another person, and, while under that duty to protect another, fails without lawful excuse, the proof of which lies upon the person with the duty and only if the person with the duty fails to perform that duty thereby endangering the life of the person to whom the duty is owed.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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