Areas of
Practice

Duty to Rescue Act 2021 | Marvin Zuker

Friday, December 10, 2021 @ 10:54 AM | By Marvin Zuker


LexisNexis® Research Solutions
Marvin Zuker %>
Marvin Zuker
How often do we read about sexual assaults and other violent crimes and as often third parties simply disregard them, if not enabling them to occur? Can you imagine a morality, a culture, where people intervene, speak up, and just do the right thing? Silence is complicity. It is not about a lack of awareness. It is about the failure to act.

Sexual assaults, sexual harassment at the University of Western Ontario, Bishop’s University, St. Michael’s College and Dalhousie University, to name a few. Witnesses to this behaviour represent humanity’s indifference. These are our leaders of tomorrow? Amelia Uelman describes it as Crime Spectators and the Tort of Objectification, 12 U. Mass. L. Rev. 68 (2017).

Yes, educators and health providers in particular have a duty to report relative to child abuse and elder abuse. But these laws do NOT penalize others who do not report such as the witnesses to such abuse. There is no “duty to rescue.”

Transparency is not one of our strengths. Awareness of what laws we have may be next to non-existent.

One example could be to amend the Criminal Code. See RSC 1985, c C-46.

“… Everyone who reasonably believes that they have observed the commission of a crime shall not knowingly fail to report that information to a peace officer.”

 “… The report shall be made immediately but no later than 24 hours after the person knows or reasonably suspects that a crime was committed or attempted.

“… Everyone commits a crime who fails to take reasonable steps to assist another person whom he sees in danger.”

Exemptions:

 (a) Individuals who reasonably fear that, by reporting, they would place themselves or someone else in danger of suffering serious bodily harm or death,

(b) Individuals who reasonably do not perceive the offence,

(c) Children as defined by this law

(d) Individuals who were victims of the offence.

Only days ago, the Catholic bishops of France set up a new Independent Commission, similar to the Independent Commission on Sexual Abuse in the Church (CIASE) for Recognition and Reparation to help up to 330,000 victims of church-related sexual abuse of minors.

With great deference to the law of torts, the compensation method of our justice system can never properly evaluate the price of pain.

Much about the first-year law course on tort law dealt with the snail in the bottle of ginger beer, otherwise known as the House of Lords decision in 1932 of MAlister (or Donoghue) v. Stevenson. Here the court addressed the neighbour principle, “… The rule that you are to love your neighbour becomes in law, you must not injure your neighbour, and the lawyer’s question, Who is my neighbour? Receives a restricted reply …”, at page 580. There is no “free standing” duty on everyone to become involved where another person is in danger. See Childs v. Desormeaux 2006 SCC 18. The Duty to Rescue Act would impose a duty to render assistance to those in danger, with exceptions of course.

If we can just recognize what is wrong and NOT see the other person as an object, then such legislation may be a start toward tearing down the culture of silence. Andrea Constand, in her book The Moment, talks about that being assaulted and that moment, almost 10 years later, that she finally stood up for those without a voice, that cultural moment, not a culture of secrecy that protects perpetrators who have been enabled by historical conventions that continue today.

Have our schools become disincentivized in dealing with these issues? In a time of crises, what duties, if any, do we owe each other?

On May 25, 2020, police officer Derek Chauvin pressed his knee on George Floyd’s neck for several minutes. Many, many watched. One, Darnella Frazier, stood out and alone, thanks to her video. She was in no way a passive onlooker.

If we can assume a law requiring witnesses to report certain crimes to the police, should potential liability for not reporting be extended to not only those physically present but virtually present? In other words cyberbullying and extending tort liability even further? Exploitative objectification is simply unacceptable. Virtual depictions of sexual explicit conduct involving a minor, child pornography, is only a beginning. Culpable individuals in some jurisdictions are not absolved of crimes they helped commit even if they were not the primary perpetrators.

Title 18, United States Code #2 provides:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

In 2016 more than 700 people “watched” as 17-year-old Marina Lonina “livestreamed” the sexual assault of her best friend. One, one out of those 700 plus people, notified the police. See Teen Vogue, April 14, 2016.

Justice as we know it is virtually non-existent when it comes to the unmasking of these spectators. It is undeniable that the Internet facilitates ongoing victimization and revictimization. And the silence becomes deafening. Video is an objective and can be a powerful observer. We saw this on Nov. 24, 2021, when three men were convicted of murdering Ahmaud Arbery. Ironically the cellphone footage was taken by one of those convicted.

Mandated reporting by third parties would be a major step toward the prevention and punishment of so many crimes that are statistically unreported such as sexual assault. Time magazine determined that the 2017 person of the year be The Silence Breakers, women and men who have finally spoken out. See Stephanie Zacharek et al, The Silence Breakers, Time, Dec. 18, 2017.

Yad Vashem (Israel’s centre for Holocaust remembrance), as of Jan. 1, 2021, credits at least 27,921 non-Jews with seeking to protect Jews during the Holocaust. Although this number cannot compare to the number of perpetrators what it does show is that even in our darkest hour we sometimes see the best of humanity.

Mondiant Dogon vivdly recalls the terrible genocide in Rwanda more than 20 years ago. (See Those We Throw Away are Diamonds, A Refugee’s Search for Home, with Jenna Krajeski, Penguin Press, 2021). Yet Dogon never lost faith in mankind. Someone, somewhere was about to warn of danger in the midst of all the atrocities.

In Canada, Quebec is the example to follow. See the Quebec Charter of Human Rights and Freedoms, CQLR c C-12, CHAPTER 1 provides:

1. Every human being has a right to life, and to personal security, inviolability and freedom. He also possesses judicial personality.

2. Every human being whose life is in peril has a right to assistance. Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary immediate physical assistance, unless it involves danger to himself or a third person, or he has another valid reason.

If you don’t speak up, you are surrendering part of yourself.

“To remain silent and indifferent is the greatest sin of all.”
— Elie Wiesel

Section 21 of the Criminal Code states in part: Parties to Offence 21 (1) Everyone is a party to an offence who (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it. See e.g., Dunlop and Sylvester v. The Queen [1979] 2 S.C.R. 881 where the court stated that mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed. Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors. 

Marvin Zuker was a judge of the Ontario Court of Justice, where he presided over the small claims, family and criminal courts from 1978 until his retirement in 2016. He is associate professor at Ontario Institute for Studies in Education/University of Toronto, where he teaches education law. Zuker is the author and co-author of many books and publications, including The Law is Not for Women and The Law is (Not) for Kids.

Interested in writing for us? To learn more about how you can add your voice to
The Lawyer’s Daily, contact Analysis Editor Yvette Trancoso-Barrett at Yvette.Trancoso-barrett@lexisnexis.ca or call 905-415-5811.