The Criminal Code of Canada contains several negligence based criminal offences, including dangerous driving as well as failure to provide the necessaries of life.
The broader offence of criminal negligence is contained at section 219 of the Criminal Code. Section 220 is the provision dealing with criminal negligence causing death. They read as follows:
219 (1) Everyone is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this
section, duty means duty imposed by law.
220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
In the recent case of R. v. Javanmardi, the Supreme Court of Canada commented on the elements of criminal negligence offences, specifically criminal negligence causing death.
In the Javanmardi case, a naturopath in Quebec provided a patient with an intravenous injection of nutrients. The patient ended up suffering endotoxic shock and subsequently died. The naturopath was charged with the offences of criminal negligence causing death and unlawful act manslaughter.
At trial the judge acquitted the naturopath of all charges, as they felt the actions of the accused did not show a wanton or reckless disregard. The trial judge felt that the naturopath had the necessary skills to administer injections, had followed sufficient protocols and had taken adequate caution in the case. The Quebec Court of Appeal disagreed and felt that the intravenous injection was inherently dangerous and the conduct of the naturopath was a marked departure from reasonable standards. The Court of Appeal convicted the accused of unlawful act manslaughter and ordered a new trial on the charge of criminal negligence causing death.
In their decision, the majority of the Supreme Court of Canada assessed the fault element of the offence of criminal negligence – specifically when does an accused's act or omission "show wanton or reckless disregard for the lives or safety of other persons". They confirmed that this offence imposes a modified objective standard of fault. It is the objective reasonable person standard. The Court outlined that,
"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."
The level of departure may vary with each offence – for criminal negligence causing death it is the elevated standard of marked and substantial. However, these standards all 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". In this case the Supreme Court upheld the acquittals of the trial judge. The Court felt that the actions of the accused met the reasonableness standard. They concluded that the factual findings of the trial judge supported the conclusions 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.
Of note, particularly for naturopaths and other professionals, the Supreme Court of Canada outlined that the professional training and qualifications of an accused were factors to be considered in assessing the applicable standard of care for criminal negligence. The Court viewed these factors as particularly relevant considerations in assessing whether the conduct of an accused departed from that of a reasonable person in similar circumstances.
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