- Under section 22 of the Criminal Code of Canada, if an individual has an awareness of a crime because they have witnessed the crime or have been told that the crime has occurred, and by not reporting this crime to the police service or other relevant agency, this individual is in some way aiding or abetting the crime to take place, they may be charged with counselling an offence.
- Conviction of an offence under s.22 would result in a criminal record.
- It is quite rare for someone to be charged under s.22.
Counselling Section 22
Person counselling offence
- 22. (1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.
- Idem (2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.
- Definition of “counsel” (3) For the purposes of this Act, “counsel” includes procure, solicit or incite. R.S. 1985, c. C-46, s. 22; 1985 c.27(1st Supp.), s. 7.
- While s. 22 is the only instance wherein someone may be charged for failing to report a crime under the Criminal Code of Canada, in many provinces under provincial legislation failing to report a crime is an offence in certain circumstances.
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Ontario Provincial Offence: Failure to Report
- Provincial offences are governed by the Provincial Offences Act, included are numerous statutes enacted by different provincial legislature acts.
- Offences under these acts are intended to regulate the behaviour of the population in particular instances and are considered minor.
- Upon conviction of a provincial statute a person may be fined an amount correlating to the particular offence.
- A conviction under a provincial statute would not appear on the convicted individual’s criminal record.
- Different provinces have different provincial acts that impose a statutory duty on individuals to report a crime in particular circumstances.
- These provincial statutory duties are intended to guide the general population and people working in specific professions about when they are responsible for reporting crimes
- In Ontario, the Child and Family Services Act, first legislated in 1990 and amended several times since, provides these guidelines:
The Child and Family Services Act
- Section 72 of the Child and Family Services Act (CFSA) imposes a statutory duty on every person, including a person who performs professional or official duties with respect to children, to forthwith report reasonable suspicions of a child in need of protection, and the information upon which those suspicions are based, directly to the Children’s Aid Society (CAS).
Who is a child in need of protection?
- The CFSA defines a child in need of protection as a child who appears to be enduring physical, sexual abuse, emotional abuse, neglect, and/or risk of harm.
- The CFSA applies to any child who is under the age of 16 years. It also applies to children already under a child protection order who are 16 and 17 years old.
What is reasonable suspicion?
- It is not required that a person be absolutely certain that a child is or may be in need of protection to be responsible to report under the CFSA.
- All that is require is that a person have reasonable grounds, referring to the information upon which the suspicion is based, that an average person using normal and honest judgement would need in order to decide to report to the CAS.
- It is then the responsibility of the CAS to assess the information upon which the suspicion is based.
- The CAS will investigate the information and then has the authority and responsibility to decide how to proceed.
- Even if an individual knows a report has already been made about a child, they must make a further report to the CAS if there are additional reasonable grounds to suspect that the child is or may be in need of protections.
Who is a person who performs professional or official duties?
- Health care professionals
- Teachers and school principals
- Social workers and family counsellors
- Religious leaders
- Operators or employees of child care programs or centres
- Youth and recreation workers with the exception of not volunteers
- Peace officers and coroners
- Child and youth service providers and employees of these service providers
- Any other person who performs professional or official duties with respect to a child
- CFSA places more responsibility on the above professionals and officials.
- Not only would such a person be guilty of an provincial offence upon conviction, they would also be liable to a fine of not more than $1000, if they obtained the information which warranted suspicion of a child in need of protection, in the course of their professional or official duties.
- This duty to report overrides professional confidentiality except in the case of lawyers, including Toronto Criminal Defence Lawyers, who must not divulge privileged information about their clients.
- If a civil action is brought against a professional or official for making a report they would be protected, unless it found that they acted maliciously or without having reasonable grounds for the suspicion.
Are there exceptions?
- Professionals to whom these laws apply are not legally obligated to report cases of child abuse in cases of past abuse if the victim is now an adult.
What about adult abuse?
- Resident’s of nursing homes are the one instance wherein a person must report to the Director of Nursing Homes if they suspect that a resident has suffered or may suffer harm as a result of unlawful conduct, improper or incompetent treatment or care or neglect.
- failure to do so could result in a being charged under CFSA
- Other adult protection laws have been introduced but have yet to be adopted.