R. v. Javanmardi, 2019 SCC 54
Criminal law — Unlawful act manslaughter — Criminal negligence causing death
On appeal from a judgment of the Quebec Court of Appeal (2018 QCCA 856), substituting the acquittal for unlawful act manslaughter entered by Villemure Prov. Ct. J., C.Q., No. 500‑01‑013474‑082.
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.
Held (Wagner C.J. and Rowe J. dissenting): The appeal should be allowed and the acquittals restored.
Per Abella, Moldaver, Karakatsanis, Côté and Brown JJ. :
The Court of Appeal erred in holding that an intravenous injection is objectively dangerous regardless of the circumstances in which it is administered or the training, qualifications and experience of the person who administers it. The Court of Appeal also erred in disturbing the accused’s acquittals based on its conclusion that her conduct markedly departed from that of a reasonable person. These conclusions cannot be squared with the trial judge’s findings of fact which the Court of Appeal replaced with its own.
The actus reus of 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. 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. In the context of criminal negligence causing death, however, the requisite degree of departure is as an elevated one — marked and substantial.
The actus reus of unlawful act manslaughter under s. 222(5) (a) of the Criminal Code requires the Crown to prove that the accused committed an unlawful act and that the unlawful act caused death. The underlying unlawful act is described as the “predicate” offence. Where the predicate offence is one of strict liability, the fault element for that offence must be read as a marked departure from the standard expected of a reasonable person in the circumstances. The Crown is not required to prove that the predicate offence was objectively dangerous. An objective dangerousness requirement adds nothing to the analysis that is not captured within the fault element of unlawful act manslaughter. An unlawful act, accompanied by objective foreseeability of the risk of bodily harm that is neither trivial nor transitory, is an objectively dangerous act. As a result, 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 both offences require that an accused’s conduct be measured against the standard of a reasonable person in their circumstances. An activity‑sensitive approach to the modified objective standard should be applied. While the standard is not determined by the accused’s personal characteristics, it is informed by the activity. Evidence of training and experience may be used to rebut an allegation of being unqualified to engage in an activity or to show how a reasonable person in the circumstances of the accused would have performed the activity.
In measuring the accused’s conduct against this standard in the instant case, the trial judge was obliged to consider the accused’s prior training, experience and qualifications as a naturopath. The trial judge found that the accused was properly qualified to administer intravenous injections and took the necessary precautions at every stage of administering the intravenous injection, including observing sufficient protocols to prevent sepsis. All of the trial judge’s factual findings, which were based on the evidence, amply support the conclusion that an intravenous injection, performed properly by a naturopath qualified to administer such injections, did not pose an objectively foreseeable risk of bodily harm in the circumstances.
Per Wagner C.J. and Rowe J. (dissenting):
The appeal should be allowed in part: the conviction for unlawful act manslaughter should be set aside and a new trial ordered on this charge. Entering a conviction on an appeal from an acquittal is an exceptional measure, and the error of law at issue here is also a rare occurrence. A conviction for manslaughter was not so inevitable as to justify the measure ordered by the Court of Appeal.
The offence of unlawful act manslaughter requires proof of an underlying unlawful act. The actus reus of the offence has three elements: (1) an underlying unlawful act; (2) the objective dangerousness of that act; and (3) a causal connection between the act and the death. Unlawful act manslaughter also has two cumulative fault elements: the mens rea of the underlying act and the mens rea specific to manslaughter.
The second element of the actus reus, the objective dangerousness of the unlawful act, is assessed without reference to the accused’s personal characteristics. It will be proved if the court is satisfied that the accused did something that a reasonable person would have known was likely to subject another person to a risk of bodily harm. In considering the actus reus, the court is not to assess the extent to which the accused’s conduct departed from this standard of care or the accused’s state of mind. This evidentiary threshold reflects the fact that, at this stage of the analysis, the court is considering whether the accused committed the physical element of the offence, not whether the accused had the state of mind required for a conviction.
Injecting a substance across physiological barriers is an inherently dangerous activity. The accused’s experience does not alter this. The dangerousness of the act would have been established even if it had been performed by a health professional who was authorized to do so. By refusing to find that the unlawful injection was objectively dangerous, the trial court failed to arrive at the legal conclusion that was necessary in light of the facts as found. This was an error of law whose impact is such that it requires a new trial.
Citation: R. v. Javanmardi, 2019 SCC 54
SCC File No.: 38818
Joint Reasons for Judgment: Abella J. (Moldaver, Karakatsanis, Côté and Brown JJ. concurring)
Dissenting Reasons: Wagner C.J. (Rowe J. concurring)