R. v. Goforth, 2021 SKCA 20, 2022 SCC 25 (39568) “On November 8, 2011, two girls aged three and two years old were placed in foster care with the accused and his wife. On the night of July 31, 2012, the accused and his wife took the older child to the hospital. She was in cardiac arrest and was not breathing. She was severely emaciated and dehydrated, her weight was significantly below the third percentile for children of her age and gender, and she had multiple bruises and abrasions on her body. She was placed on a life support machine but died on August 2, 2012. The younger child, who was also admitted to hospital, was severely ill due to malnutrition and dehydration, but she survived. She had pneumonia, a urinary tract infection, and a large ulcer on her lower left leg with signs of infection. She also had bruises on her face, open sores and abrasions on the lower spine, and wrap‑around lesions on her wrists and ankles. The accused and his wife were both charged with, and jointly tried for, second degree murder in relation to the death of the older child and unlawfully causing bodily harm in relation to the younger child. All of these charges were predicated on the alleged failure to provide the children concerned with necessaries of life, contrary to s. 215 of the Criminal Code. The jury convicted the accused’s wife of second degree murder and unlawfully causing bodily harm. As for the accused, the jury acquitted him of second degree murder but convicted him of the lesser and included offence of unlawful act manslaughter, and of unlawfully causing bodily harm. The accused appealed his convictions. The majority of the Court of Appeal set aside his convictions and ordered a new trial. It held that the trial judge had erred in describing the mens rea requirement for the predicate offence of failing to provide necessaries of life and in failing to review and to instruct the jury on the evidence of the accused’s parenting circumstances as a secondary caregiver.”

The SCC (9:0) with separate concurring reasons allowed the appeal and restored the convictions.

Justice Côté wrote as follows (at paras.3, 35-40, 58):

“…the majority of the Court of Appeal erred by failing to take a functional approach in its assessment of the jury charge. This Court has long held that an accused is entitled to a jury that is properly — and not necessarily perfectly — instructed. The ultimate question in this appeal is whether the jury was properly instructed such that appellate intervention was unwarranted. In my view, while the charge was not perfect, the jury was nonetheless properly instructed. None of the issues raised in connection with the jury charge warranted appellate intervention.

Ultimately, when read as a whole, the trial judge’s instructions functionally conveyed the necessary legal principles. The jury charge was not perfect. The trial judge did not make a clear distinction between the required foreseeability standard for s. 215 and the required foreseeability standard for manslaughter or unlawfully causing bodily harm. She routinely juxtaposed the two different foreseeability requirements without clearly alerting the jury to how the respective foresight standards corresponded to the respective offences.

The imprecise juxtaposition of different mens rea requirements should be avoided. It could potentially confuse the jury and could potentially necessitate a new trial in a different set of circumstances. However, in the circumstances of this case, there is no reasonable possibility that the jury was confused about the required mens rea for s. 215 or misled about what the Crown had to prove in order for the jury to find Mr. Goforth guilty of either manslaughter or unlawfully causing bodily harm. With respect, the Court of Appeal erred in holding otherwise, for three reasons.

First, despite the frequency with which the more confusing instruction was repeated, the clearest explanation of the mens rea requirement was provided when the trial judge invited the jury to consider two straightforward questions to assess whether that requirement had been met. These questions told the jurors exactly what to ask themselves in the circumstances of this case. There is simply no reasonable possibility that any juror would have disregarded these straightforward questions and would have instead chosen to apply the lower foresight standard.

Second, the fact that the impugned instruction was routinely introduced with the word “further” also supports the argument that the jury would have simply concluded that both foresight standards had to be satisfied.

 Finally, I note that defence counsel did not object to the charge at trial and that appellate counsel before the Court of Appeal did not initially identify the juxtaposition of the two foreseeability standards as an issue of concern (C.A. reasons, at paras. 93‑94). Although not determinative, defence counsel’s failure to object at trial and appellate counsel’s failure to identify the issue initially on appeal undermine the argument that the jury may have been misled or confused about the appropriate standard. Indeed, contrary to the opinion of my colleague (at para. 65), this provides a strong reason to conclude that the jury would not have been misled or confused. As Bastarache J. explained in Daley, at para. 58:

. . . it is expected of counsel that they will assist the trial judge and identify what in their opinion is problematic with the judge’s instructions to the jury. While not decisive, failure of counsel to object is a factor in appellate review. The failure to register a complaint about the aspect of the charge that later becomes the ground for the appeal may be indicative of the seriousness of the alleged violation. See Jacquard, at para. 38: “In my opinion, defence counsel’s failure to object to the charge says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirection.”
(See also Calnen, at paras. 38-39; Thériault v. The Queen, [1981] 1 S.C.R. 336, at pp. 343-44.)

In sum, when the jury charge is read functionally and as a whole, I have no trouble concluding that the jury was properly instructed on the law and able to draw the necessary legal conclusions.

…Jurors do not check their common sense at the door of the deliberation room. Given the evidence and the circumstances of the trial as a whole, I am confident that the jury in this case was well‑equipped to make a common sense assessment of whether failing to provide food or fluids to young children constituted a marked departure from the conduct of a reasonably prudent person.”