Criminal Law: Manslaughter/Criminal Negligence Causing Death 

R. v. Javanmardi, 2019 SCC 54 (38188)

“On June 12, 2008, M and his wife visited the accused’s naturopathic clinic. M was 84 years old, had heart disease and was frustrated with the treatment he had received at conventional medical clinics. After an hour‑long consultation, the accused recommended intravenously administered nutrients. M reacted negatively to the injection and he died of endotoxic shock some hours later. The accused was charged with criminal negligence causing death and unlawful act manslaughter. The trial judge acquitted the accused of both charges but the Court of Appeal set aside both acquittals, substituted a conviction on the charge of unlawful act manslaughter, and ordered a new trial on the criminal negligence charge.”

The S.C.C.held (5:2): appeal allowed, acquittals restored.

Justice Abella wrote as follows (at paras. 19-23, 30-31, 45):

“The actus reusof criminal negligence causing death requires that the accused undertook an act — or omitted to do anything that it was his or her legal duty to do — and that the act or omission caused someone’s death.

The fault element is that the accused’s act or omission “shows wanton or reckless disregard for the lives or safety of other persons”. Neither “wanton” nor “reckless” is defined in the Criminal Code , but in R. v. J.F., [2008] 3 S.C.R. 215, this Court confirmed that the offence of criminal negligence causing death imposes a modified objective standard of fault — the objective “reasonable person” standard (paras. 7-9; see also R. v. Tutton, [1989] 1 S.C.R. 1392, at pp. 1429-31; R. v. Morrisey, [2000] 2 S.C.R. 90, at para. 19; R. v. Beatty, [2008] 1 S.C.R. 49, at para. 7).

As with other negligence-based criminal offences, the fault element of criminal negligence causing death is assessed by measuring the degree to which the accused’s conduct departed from that of a reasonable person in the circumstances. For some negligence-based offences, such as dangerous driving, a “marked” departure satisfies the fault element (J.F., at para. 10; see also: Beatty, at para. 33; R. v. Roy, [2012] 2 S.C.R. 60, at para. 30; R. v. L. (J.) (2006), 204 C.C.C. (3d) 324 (Ont. C.A.), at para. 15; R. v. Al-Kassem, 2015 ONCA 320, 78 M.V.R. (6th) 183, at para. 6). In the context of criminal negligence causing death, however, the requisite degree of departure has been described as an elevated one — marked and substantial (J.F., at para. 9, applying Tutton, at pp. 1430-31, and R. v. Sharp (1984), 12 C.C.C. (3d) 428 (Ont. C.A.)).

These standards have much in common. They both ask whether the accused’s actions created a risk to others, and whether “a reasonable person would have foreseen the risk and taken steps to avoid it if possible” (see Roy, at para. 36; Stewart, at p. 248). The distinction between them has been described as a matter of degree (see R. v. Fontaine, 2017 QCCA 1730, 41 C.R. (7th) 330, at para. 27; R. v. Blostein, 2014 MBCA 39, 306 Man. R. (2d) 15, at para. 14). As Healy J.A. explained in Fontaine:

  • These differences of degree cannot be measured by a ruler, a thermometer or any other instrument of calibrated scale. The words “marked and substantial” departure are adjectives used to paraphrase or interpret “wanton or reckless disregard” in section 219 of the Code but they do not, and cannot, indicate any objective and fixed order of magnitude that would have prescriptive value from one case to another. As with the assessment of conduct in cases of criminal negligence, the assessment of fault by the trier of fact is entirely contextual. [para. 27]

In J.F., Fish J. did not fully explain how to distinguish between a “marked” and a “marked and substantial” departure, as the case did not “turn on the nature or extent of the difference between the two standards” (paras. 10-11). In this appeal, as well, the differences in etymology are not dispositive and need not be resolved. In any event, the parties argued on the basis that the proper threshold for criminal negligence causing death is a “marked and substantial” departure, and that is the basis on which these reasons approach the issue. A conviction for criminal negligence causing death therefore requires the Crown to prove that the accused undertook an act, or omitted to do anything that it was her legal duty to do, and that the act or omission caused the death of another person (the actus reus). Based on J.F., the Crown must also establish that the accused’s conduct constituted a marked and substantial departure from the conduct of a reasonable person in the accused’s circumstances (the fault element).

…the actus reus of unlawful act manslaughter is satisfied by proof beyond a reasonable doubt that the accused committed an unlawful act that caused death. There is no independent requirement of objective dangerousness.

The fault element of unlawful act manslaughter is, as noted, objective foreseeability of the risk of bodily harm that is neither trivial nor transitory, coupled with the fault element for the predicate offence (Creighton, at pp. 42-43, DeSousa, at pp. 961-62). I agree with the Court of Appeal that where the predicate offence is one of strict liability, as in this case, the fault element for that offence must be read as a marked departure from the standard expected of a reasonable person in the circumstances (see also Grant et al., at pp. 4-14 and 4-15; Larry C. Wilson, “BeattyJ.F., and the Law of Manslaughter” (2010), 47 Alta L. Rev. 651, at pp. 663-64; Kent Roach, Criminal Law (7th ed. 2018), at p. 466; R. v. Curragh Inc. (1993), 125 N.S.R. (2d) 185 (Prov. Ct.); R. c. Fournier, 2016 QCCS 5456, at paras. 62-70 (CanLII); and L.M., at paras. 44-49). This approach aligns with Creighton, where McLachlin J. clarified that predicate offences involving carelessness or negligence must be read as requiring a marked departure from the standard of the reasonable person (p. 59).

I do, however, agree with the Court of Appeal that Villemure J. erred in her articulation of the fault element for unlawful act manslaughter by stating that it required objective foreseeability of a risk of death. The proper test is objective foreseeability of a risk of bodily harm that is neither trivial nor transitory. But this error was immaterial, because even had Villemure J. applied the proper test, she would still have acquitted Ms. Javanmardi based on her conclusion that the intravenous injection was not objectively dangerous, because a reasonable person in these circumstances would not have foreseen a risk of harm.”

Full Decision