R. v. J.F.

R. v. J.F.
Collection
Supreme Court Judgments
Date
2008-10-31
Neutral citation
2008 SCC 60
Report
[2008] 3 SCR 215
Case number
32203
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 32203
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. J.F., [2008] 3 S.C.R. 215, 2008 SCC 60
Date: 20081031
Docket: 32203
Between:
Her Majesty The Queen
Appellant / Respondent on cross‑appeal
and
J.F.
Respondent / Appellant on cross‑appeal
Coram: McLachlin C.J. and Binnie, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 42)
Dissenting Reasons:
(paras. 43 to 101)
Fish J. (McLachlin C.J. and Binnie, Abella, Charron and Rothstein JJ. concurring)
Deschamps J.
______________________________
R. v. J.F., [2008] 3 S.C.R. 215, 2008 SCC 60
Her Majesty The Queen Appellant/Respondent on cross‑appeal
v.
J.F. Respondent/Appellant on cross‑appeal
Indexedas: R. v. J.F.
Neutral citation: 2008 SCC 60.
File No.: 32203.
2008: April 18; 2008: October 31.
Present: McLachlin C.J. and Binnie, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for ontario
Criminal law — Appeals — Unreasonable verdict — Accused convicted by jury of manslaughter by criminal negligence and acquitted of manslaughter by failing to provide necessaries of life — Both offences arising in respect of same act of omission against accused’s foster son — Whether verdicts inconsistent — If so, whether conviction of manslaughter by criminal negligence should be set aside and acquittal entered.
Criminal law — Criminal negligence — Failure to provide necessaries of life — Elements of offences — Relationship between both offences — Accused convicted of manslaughter by criminal negligence and acquitted of manslaughter by failure to provide necessaries of life — Whether verdicts can be explained by differences between offences.
M was four years old when he died in his foster home from multiple blunt traumas to his head. M’s body was extensively bruised. M’s foster mother confessed to beating M and pleaded guilty to manslaughter. The accused, M’s foster father, was charged with manslaughter by criminal negligence and manslaughter by failing to provide the necessaries of life. He was convicted by a jury on the first count, but acquitted on the second. The accused appealed his conviction. A majority of the Court of Appeal overturned the conviction and ordered a new trial on the charge of manslaughter by criminal negligence on the basis that the verdicts were inconsistent. The Crown appealed as of right on the issue of inconsistent verdicts. The accused cross‑appealed the order for a new trial, contending that an acquittal ought to have been entered.
Held (Deschamps J. dissenting): The appeal should be dismissed and the cross‑appeal should be allowed. The order setting aside the conviction on the charge of manslaughter by criminal negligence should be affirmed and an acquittal entered.
Per McLachlin C.J. and Binnie, Fish, Abella, Charron and Rothstein JJ.: The verdicts rendered at trial are inconsistent and the conviction of manslaughter by criminal negligence must be quashed. There was no reasonable basis upon which to convict and acquit the accused at the same trial, of the same offence committed in the same way against the same victim. The accused was tried on two counts of manslaughter by omission. Though each count alleged different “underlying” or “predicate” offences, the accused’s guilt in respect of both counts was made by the Crown to depend on exactly the same failure to perform exactly the same duty: the duty to protect his foster child from foreseeable harm from his spouse. The actus reus, the prosecution theory, and essentially the fault element are common to both offences. The count of failure to provide the necessaries of life required proof of a marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the omission would lead to a risk of danger to M’s life, or a risk of permanent endangerment to his health. Criminal negligence, the more serious offence, required proof that the same omission represented a marked and substantial departure from the conduct of a reasonably prudent parent in circumstances where the accused either recognized and ran an obvious and serious risk to M’s life or gave no thought to that risk. The conviction can only be supported upon a finding that the accused failed in his duty to protect M, the factual foundation and the gravamen of both counts. The verdicts signify that a lesser degree of fault was not established whereas a greater degree of fault was proven beyond a reasonable doubt. Even if the fault requirements were treated as equivalent, the verdicts are incomprehensible. [1‑4] [8‑9] [17] [37] [38] [40]
The verdicts cannot be reconciled retrospectively based on arguments that the offences differ or the trial judge misdirected the jury. Abstract differences between the offences formed no part of the trial and are of no relevance on the facts of the case. Nor is it likely that the jury was misled by the trial judge’s instructions with respect to failure to provide the necessaries of life. Even if the intructions were erroneous, improper instructions do not make improper verdicts proper, nor inconsistent verdicts consistent. [5] [18] [23-24]
Where criminal negligence and failure to provide the necessaries of life are alleged, the jury first should consider whether the accused failed a duty to provide the necessaries of life. If so, the jury is bound to find the accused guilty of that offence. The jury then should consider whether the accused, in failing to provide the necessaries of life, showed a wanton or reckless disregard for the life or safety of the child. If so, the jury is bound to find the accused guilty of criminal negligence. If not, the jury could still find the accused guilty of failure to provide the necessaries of life, but not of criminal negligence. [37]
This is not an appropriate case in which to order a new trial. Rather, an acquittal should be entered on the count of manslaughter by criminal negligence. Since, in this case, the Crown did not appeal the accused’s acquittal on the count of manslaughter by failing to provide the necessaries of life, a new trial would deprive the accused of the benefit of his acquittal and expose him to a finding that he did in fact commit the offence of which he was acquitted. [39] [41]
Per Deschamps J. (dissenting): The accused has not met the onus of proving that the verdicts were inconsistent, and the conviction on the charge of manslaughter by criminal negligence should be restored. When an appellant pleads that two verdicts are inconsistent, a court of appeal must determine whether the verdict appealed from is unreasonable because it tends to indicate that the jury must have been confused as to the evidence or must have reached some sort of unjustifiable compromise. No such demonstration was made in this case. [43] [61] [92]
The essential elements of the offences differ. Both are negligence‑based offences for which fault requires proof of a failure to direct the mind to a risk of harm which the reasonable parent would have appreciated. However, the fault element of each offence is in large part premised on the actus reus of the offence and the actus reus of each offence differ. The actus reus of failing to provide the necessaries of life required proof that the accused was under a legal duty to provide the necessaries of life to M, that he failed, viewed objectively, to perform the duty, and that this failure, assessed objectively, endangered M’s life or caused or was likely to cause M’s health to be endangered permanently. The actus reus of criminal negligence required proof that the accused was under a legal duty to do something, that he failed, viewed objectively, to perform his duty, and that in failing to perform his duty, he showed, assessed objectively, a wanton or reckless disregard for the lives or safety of other persons. While the two offences may involve the same legal duty, each offence sets out a different type of risk of harm and the trial judge’s instructions to the jury were clear on that point. The jury was instructed on both counts to find a marked and substantial departure from what a reasonable parent would do in the circumstances. For the offence of failing to provide the necessaries of life, the jury was further instructed to consider whether the accused endangered M’s life or caused or likely caused his health to be endangered permanently. This harm was described as unique to the offence of failing to provide the necessaries of life. The charge to the jury set out the essential elements of each offence in such a way that the jury did not answer the same question when determining each verdict. [64‑66] [68‑69] [73‑75] [91]
It was open to the jury to find that the accused failed to direct his mind to the health or safety of M, but not that M’s health was endangered permanently. The time line of M’s bruising was a crucial factual issue. A finding that the accused failed to direct his mind to the health or safety of M did not necessarily imply that M’s health was permanently endangered. The jury was clearly instructed that the reasonable doubt standard applied to the harm unique to failing to provide the necessaries of life and would have understood that the two counts had to be distinguished. The verdicts are supportable on the instructions and the theory of the evidence. [77] [81] [84] [86‑88]
Even if the verdict was unreasonable in this case, the just order would have been a new trial on both counts. An appeal from the acquittal was not necessary to order a new trial on both counts in this case because s. 686(8) of the Criminal Code empowers an appeal court to make any order that justice requires, including an order for a new trial where the court finds defects in the instructions on the charge that led to an acquittal. [95]
Cases Cited
By Fish J.
Referred to: R. v. Naglik, [1993] 3 S.C.R. 122; R. v. Tutton, [1989] 1 S.C.R. 1392; R. v. Sharp (1984), 12 C.C.C. (3d) 428; R. v. Willock (2006), 210 C.C.C. (3d) 60; R. v. L. (J.) (2006), 204 C.C.C. (3d) 324; R. v. Palin (1999), 41 M.V.R. (3d) 11, 135 C.C.C. (3d) 119; R. v. Fortier (1998), 41 M.V.R. (3d) 221, 127 C.C.C. (3d) 217; R. v. Brown (2000), 134 O.A.C. 151; R. v. Baker (2006), 209 C.C.C. (3d) 508; R. v. E. (A.) (2000), 146 C.C.C. (3d) 449; Kienapple v. The Queen, [1975] 1 S.C.R. 729; R. v. Provo, [1989] 2 S.C.R. 3; R. v. Johnson, 2007 CarswellOnt 7765; R. v. J.R.B., [2002] N.J. No. 296 (QL); R. v. Fitze (2000), 35 C.R. (5th) 114; R. v. Pittiman, [2006] 1 S.C.R. 381, 2006 SCC 9.
By Deschamps J. (dissenting)
R. v. McShannock (1980), 55 C.C.C. (2d) 53; R. v. Pittiman, [2006] 1 S.C.R. 381, 2006 SCC 9; R. v. Creighton, [1993] 3 S.C.R. 3; R. v. Beatty, [2008] 1 S.C.R. 49, 2008 SCC 5; R. v. Gosset, [1993] 3 S.C.R. 76; R. v. Naglik, [1993] 3 S.C.R. 122; Corbett v. The Queen, [1975] 2 S.C.R. 275; R. v. François, [1994] 2 S.C.R. 827; Kienapple v. The Queen, [1975] 1 S.C.R. 729; R. v. Prince, [1986] 2 S.C.R. 480; Krug v. The Queen, [1985] 2 S.C.R. 255; R. v. Andrew (1990), 57 C.C.C. (3d) 301; R. v. Switzer (1987), 32 C.C.C. (3d) 303; R. v. Provo, [1989] 2 S.C.R. 3; R. v. Couture (1988), 27 Q.A.C. 205.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C‑46, ss. 86(1) , 215 , 219 , 222(5) (a), (b), 234 , 236 (b), 249(1) (a), 686(1) (a)(i), (8) .
Authors Cited
Parent, Hugues. Traité de droit criminel, t. 2, 2e éd. Montréal: Thémis, 2007.
APPEAL and CROSS‑APPEAL from a judgment of the Ontario Court of Appeal (Laskin, Lang and MacFarland JJ.A.) (2007), 226 O.A.C. 119, 222 C.C.C. (3d) 474, 51 C.R. (6th) 386, [2007] O.J. No. 2632 (QL), 2007 CarswellOnt 4238, 2007 ONCA 500, setting aside the accused’s conviction and ordering a new trial on a charge of manslaughter by criminal negligence. Appeal dismissed and cross‑appeal allowed, Deschamps J. dissenting.
Kimberley Crosbie, for the appellant/respondent on cross‑appeal.
Greg Brodsky, Q.C., and Ryan Amy, for the respondent/appellant on cross‑appeal.
The judgment of McLachlin C.J. and Binnie, Fish, Abella, Charron and Rothstein JJ. was delivered by
Fish J. —
I
[1] The respondent in this case was acquitted and convicted by the same jury at the same trial of the same offence committed in the same way against the same victim.
[2] He was tried on a single indictment containing two counts of manslaughter by omission. Though each count alleged different “underlying” or “predicate” offences, the respondent’s guilt in respect of both counts was made by the Crown to depend on exactly the same failure to perform exactly the same duty. Toward the end of his charge, the trial judge made this clear to the jury in these terms:
The Crown alleges that by criminal negligence (count 1) and by a failure to provide the necessaries of life (count 2), [J.F.] failed in his legal duty to protect his foster child, [K.M.], from foreseeable harm from his spouse; and, by his failure, contributed (that is to say caused) the death of [K.M.]. [Emphasis added; A.R., at p. 609.]
The same prohibited conduct, or actus reus, was thus common to both counts.
[3] The fault element, though not identical, was essentially common to both counts as well. So, too, was the theory of the prosecution, explained in these terms by the Crown in this Court:
The respondent was charged with two counts of manslaughter by unlawful act [more accurately, by unlawful omission] — the first by criminal negligence, and the second by failing to provide the necessaries of life. The theory of the Crown, in essence, was that the respondent had failed to fulfill his legal duty to protect [K.M.] and that failure was a contributing cause of his death. There was no allegation that the respondent himself inflicted any direct physical injury against [K.M.]. [Emphasis added; A.F., at para. 2.]
[4] In short, the jury in this case acquitted the respondent on one count of manslaughter by omission and convicted him on another count of manslaughter alleging the same omission. Both counts involved similar fault requirements. To the extent that they differed, the count on which the respondent was convicted (criminal negligence), was more serious than the count upon which he was acquitted (failure to provide the necessaries of life). Moreover, as the judge’s charge made plain, the jury was required to answer essentially the same question in determining whether the respondent was guilty of manslaughter under either count. In the circumstances of this case — bearing in mind, especially, the nature and evident gravity of the injuries inflicted — there was thus no reasonable basis upon which the jury could acquit the respondent on count 2 and convict him on count 1. It was not open to the jury to say “yes” and “no” to substantially the same question, as in fact it did.
[5] That is the unvarnished significance of the verdicts rendered at trial. And we must not obscure that reality beneath an intellectualized gloss, however attractive, on appeal. More particularly, we cannot reconcile the verdicts retrospectively on the basis of abstract differences between the underlying offences — differences of little relevance on the facts of this case and, evidently for that reason, neither relied on by the Crown at trial nor specifically explained by the judge in his charge to the jury.
[6] With respect for those who are of a different view, I would dismiss the appeal and allow the cross-appeal. Elementary fairness and legal principle both command that result. The rest is commentary.
II
[7] The fault element required for conviction at trial was essentially common to both counts of manslaughter. On count 1, the requisite fault element was that of the underlying offence of criminal negligence; on count 2, the requisite fault element was that of failure to provide the necessaries of life. Neither criminal negligence nor failure to provide the necessaries of life requires proof of intention or actual foresight of a prohibited consequence. Under both counts, the jury was required to determine not what the respondent knew or intended, but what he ought to have foreseen.
[8] On the count alleging failure to provide necessaries, the Crown was bound to establish that the respondent’s failure to protect his foster child represented “a marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanent endangerment to the health, of the child”: R. v. Naglik, [1993] 3 S.C.R. 122, at p. 143 (emphasis added). It will later become apparent why I have emphasized the word “risk” in this description of the offence by the Chief Justice, speaking for the Court on this point.
[9] On the count alleging criminal negligence, the Crown was bound to show that the respondent’s very same omission represented a marked and substantial departure (as opposed to a marked departure) from the conduct of a reasonably prudent parent in circumstances where the accused either recognized and ran an obvious and serious risk to the life of his child or, alternatively, gave no thought to that risk: R. v. Tutton, [1989] 1 S.C.R. 1392, at pp. 1430-31; R. v. Sharp (1984), 12 C.C.C. (3d) 428 (Ont. C.A.).
[10] The difference between a marked departure and a marked and substantial departure has been considered in several appellate decisions since Naglik and Tutton, mainly but not exclusively in the context of driving offences: See, for example, R. v. Willock (2006), 210 C.C.C. (3d) 60 (Ont. C.A.); R. v. L. (J.) (2006), 204 C.C.C. (3d) 324 (Ont. C.A.); R. v. Palin (1999), 41 M.V.R. (3d) 11, 135 C.C.C. (3d) 119 (Que. C.A.); R. v. Fortier (1998), 41 M.V.R. (3d) 221, 127 C.C.C. (3d) 217 (Que. C.A.); R. v. Brown (2000), 134 O.A.C. 151; R. v. Baker (2006), 209 C.C.C. (3d) 508 (Ont. C.A.); R. v. E. (A.) (2000), 146 C.C.C. (3d) 449 (Ont. C.A.). This case does not turn on the nature or extent of the difference between the two standards.
[11] A brief comment on this branch of the matter will therefore suffice. If the fault element under both counts was the same — if a marked departure was sufficient in both instances — an acquittal on one and a conviction on the other would be plainly inconsistent because both counts alleged the identical actus reus as well. It is undisputed, however, that criminal negligence, unlike failure to provide the necessaries of life, involves a marked and substantial departure from the norm of a reasonable person. In this light, the verdicts at trial — not guilty of failing to provide necessaries, yet guilty of criminal negligence — are not only inconsistent, but incomprehensible as well.
[12] Moreover, Parliament has made it clear not only in the relevant procedural provisions of the Criminal Code, R.S.C. 1985, c. C-46 , but also in the sentencing provisions that criminal negligence is the more serious of the two offences. Criminal negligence causing bodily harm must be prosecuted by indictment; failure to provide the necessaries of life, a hybrid offence, can be prosecuted either by indictment or on summary conviction. Criminal negligence is punishable by a maximum of 10 years’ imprisonment; failure to provide the necessaries of life is punishable, on indictment, by a maximum of 5 years (at the time of trial, 2 years) and, on summary conviction, by 18 months (at the time of trial, 6 months).
[13] That criminal negligence is a more serious offence, signifying more blameworthy conduct, has been recognized by the courts as well. This is reflected in cases where the accused has been found guilty of both offences: Applying the rule against multiple convictions in accordance with Kienapple v. The Queen, [1975] 1 S.C.R. 729, and R. v. Provo, [1989] 2 S.C.R. 3, courts have systematically recorded a conviction of criminal negligence, as the more serious of the two offences, and entered a stay on the charge of failure to provide the necessaries of life (see, for example, R. v. Johnson, 2007 CarswellOnt 7765 (Ct. J.)). And in the few reported cases where the accused was finally acquitted of one of these offences and convicted of the other, the conviction was for failure to provide the necessaries of life and the acquittal for criminal negligence (see, for example, R. v. J.R.B., [2002] N.J. No. 296 (QL) (Prov. Ct.); R. v. Fitze (2000), 35 C.R. (5th) 114 (Alta. Q.B.)). I am not aware of a single case in which a conviction has been recorded for failing to provide the necessaries of life and a stay entered for criminal negligence pursuant to the rule against multiple convictions.
[14] Needless to say, I refer here to the rule against multiple convictions for the sole purpose of demonstrating that courts have generally treated criminal negligence as a more serious offence than failure to provide the necessaries of life. The rule against multiple convictions applies, of course, only to multiple convictions — which is not our case. Our concern, rather, is with the rule against inconsistent verdicts, a conceptually distinct rule that precludes a conviction on one charge which cannot be reasonably reconciled with an acquittal on the other. More specifically, our concern is with the application of the rule against inconsistent verdicts to the facts and circumstances of this case. Nothing in these reasons is meant to modify in any way either the rule against multiple convictions or the rule against inconsistent verdicts.
[15] Thus, in Provo the accused — unlike the appellant in this case — was found guilty on two counts. Applying the rule against multiple convictions, the trial judge mistakenly entered an acquittal on the less serious charge. This Court held that the judge was bound instead to have entered a conditional stay, permitting the Court of Appeal, after quashing the conviction for the more serious charge, to substitute a conviction on the less serious charge upon which the accused had been found guilty at trial but erroneously “acquitted”.
[16] The relative seriousness of the two offences explains as well why criminal negligence has generally been held to require a marked and substantial departure from the norm (see, for example, Palin; Fortier; L. (J.); Willock; Brown; Baker; E. (A.)), while failure to provide the necessaries of life has been held to require only a marked departure from the norm (see, for example, Naglik, at p. 143).
[17] As I have already mentioned, the verdicts at trial signify that a lesser degree of fault was not established, while a greater degree of fault was proven beyond a reasonable doubt. Even if the jury treated the fault requirements as equivalent, the verdicts would remain inconsistent because, as we have seen, the actus reus for both offences was, on the facts of this case, identical. In either case, the respondent’s conviction cannot stand.
III
[18] The Crown submits that the verdicts at trial are not inconsistent in view of the “operative statutory distinctions” between criminal negligence and failure to provide the necessaries of life. The Crown relies as well on an instruction of the trial judge that it characterizes as erroneous in law.
[19] I shall deal more fully with each of these grounds in turn, but find it helpful to explain immediately, briefly and respectfully, why I disagree with them both.
[20] First, for the reasons already given, I think it unfair in principle and wrong in law to reconcile the respondent’s conviction and acquittal by the jury on the basis of theoretical considerations that formed no part of the case against the accused at trial. Even if they had been raised at trial, which they were not, the distinctions raised by the Crown (and by Justice Deschamps) would not render consistent the respondent’s acquittal and conviction on the facts of this case.
[21] Second, reading the judge’s charge as a whole, I am not persuaded that he misdirected the jury with respect to the count on which the respondent was acquitted. In any event, as a matter of legal process and the legitimacy of verdicts, I would decline to uphold the respondent’s conviction on the ground that it can be reconciled with his acquittal on another count of the same indictment on the basis of a legal error at trial.
IV
[22] Essentially then, the Crown argues that the respondent’s conviction of manslaughter by criminal negligence is consistent, for two reasons, with his acquittal of manslaughter by failing to provide the necessaries of life: The first relates to “operative statutory distinctions” between the two predicate offences; the second, to an instruction by the trial judge now said to be erroneous but explicitly acquiesced in by the Crown at trial. The Crown recognizes that a risk of harm was the governing test under both counts. But the jury was directed — erroneously, in the Crown’s view — to apply a test of likelihood — not risk — on the count alleging failure to provide the necessaries of life. On the basis of this impugned instruction by the trial judge, the Crown now argues that the jury could reasonably, though wrongly as a matter of law, find the respondent not guilty of failing to provide the necessaries of life in omitting to protect his child from the violence of his spouse — but nonetheless guilty of criminal negligence because of the very same omission.
[23] As I have already made plain, I would not allow the appeal on the basis of what the Crown characterizes as an erroneous instruction in law. On an allegation by the Crown that the trial judge erred in this regard, the appropriate recourse would have been for the Crown to appeal the acquittal and not for this Court to uphold the conviction on another count. This is particularly true where, as mentioned earlier, Crown counsel expressly acquiesced in the instruction now said to be erroneous. Finally, verdicts are deemed inconsistent — and therefore unreasonable as a matter of law — if no properly instructed jury could reasonably have returned them both: R. v. Pittiman, [2006] 1 S.C.R. 381, 2006 SCC 9. Improper instructions do not make improper verdicts proper. Nor do they make inconsistent verdicts consistent.
[24] In fairness to the trial judge, I think it important to add that his recharge was in full conformity with the submissions of counsel. It related what he had earlier said to the express terms of s. 215(2) (a)(ii) of the Criminal Code . I agree that the relationship between “risk”, “endangers”, and “is likely to” in the context of that provision could have been more felicitously explained; I am satisfied, however, that the jury is unlikely to have been misled by the trial judge’s recharge with respect to the Crown’s burden of proof under count 2.
[25] The respondent was charged in that count with manslaughter for failing to provide his foster child, K.M., with one of the necessaries of life — protection from the injuries inflicted on K.M. by the respondent’s spouse. Reading the judge’s recharge in the context of his instructions as a whole, the jury may safely be thought to have understood that the respondent was guilty under count 2 if (1) his failure to protect the child contributed to the child’s death and (2) a reasonable parent in the same circumstances would have foreseen that failing to protect K.M. would cause the child’s health to be endangered permanently. Bearing in mind the severe injuries suffered by K.M. and the duration of the violence to which he was subjected, no reasonable parent could have foreseen the inevitable and real risk of permanent harm but nonetheless found that harm to be “unlikely”.
[26] I turn in this context to the second ground upon which the Crown urges us to find that the verdicts are not inconsistent. This ground is advanced in the following terms:
To prove criminal negligence, the Crown must establish that the accused showed a wanton disregard for the life or safety of a person that he or she was legally bound to protect. To found a conviction on failing to provide the necessaries of life however, the accused must be proven to have shown such a disregard that the person’s life is endangered or their health is permanently endangered. To be certain, there is some overlap between the types of harm that children are to be protected against and both offences require an objective foreseeability of some type of harm. However, there is a critical difference in the gravity of harm that needs to be foreseen between “safety” and permanent endangerment to health. [Emphasis deleted; A.F., at para. 38.]
[27] This abstract distinction between the two offences, like the first, is of little relevance on the facts of this case. Evidently for that reason, as I suggested earlier, neither distinction was relied on by the Crown at trial nor specifically explained by the judge in his charge to the jury. Indeed, the distinction between safety and permanent endangerment to health — the principal ground advanced by the Crown and relied upon by Justice Deschamps — was at no time raised by either side throughout the entire course of the trial.
[28] Nor was it mentioned by the trial judge in his charge to the jury. At the hearing of the appeal, Crown counsel was invited to “tell us where in the charge to the jury the judge explained that they could find a risk to safety without finding a risk to the [child’s] permanent endangerment to health”. She was, of course, unable to do so. Crown counsel was then asked whether the trial judge “[d]id . . . actually draw that distinction between the two [underlying offences]”. Quite properly, Crown counsel acknowledged that she “didn’t see where there was that directive in the charge” (transcript, at p. 18).
[29] This, too, was perfectly understandable in light of the facts of the case, notably the nature and extent of the injuries suffered by the victim. Understandably as well, the trial judge used the terms “health” and “safety” interchangeably in his instructions to the jury.
[30] In his instructions on criminal negligence, the trial judge stated:
Your approach to assessing the foreseeability of illegal violence here must proceed, not from the standpoint of what [J.F.] foresaw but, objectively, from the perspective of what a reasonable parent in identical circumstances could foresee. . . . Rather, you must consider whether there was a discernible risk of more than trifling or short-lived bodily harm to the child which a reasonable parent in the like circumstances would have appreciated and taken steps to prevent. [Emphasis added; A.R., at p. 543.]
[31] And, shortly afterward:
If you are satisfied beyond a reasonable doubt that [J.F.] had a duty to protect [K.M.] and that he failed to do it, you must go on to the next question.
Did [J.F.] show a wanton or reckless disregard for the health or safety of [K.M.]?
Crown counsel has to prove beyond a reasonable doubt that the failure of [J.F.] to protect [K.M.] from harm at the hands of [his wife] showed a wanton or reckless disregard for the health or safety of [K.M.].
. . .
Criminal negligence requires more than just carelessness. For [J.F.] to be found criminally negligent, his failure to take protective steps on [K.M.’s] behalf must constitute a marked and substantial departure from what a reasonably prudent parent would do in the same circumstances. Crown counsel may prove this in either of two ways: by proving that [J.F.] was aware of a danger or risk to the health or safety of [K.M.] but ignored that risk; or by proving that [J.F.] failed to direct his mind to the risk to the health or safety of [K.M.] which a reasonable parent would have understood.
. . .
Crown counsel does not have to prove that [J.F.] knew or foresaw that his failure to take protective steps would result in the death of [K.M.]. If [J.F.]’s failure to act, viewed objectively, constitutes a marked and substantial departure from what we expect of a reasonably prudent parent in the same circumstances, criminal negligence has been established whether or not [J.F.] recognized the risk to the health or safety of [K.M.]. [Emphasis added; A.R., at pp. 545-46.]
[32] In his instructions on failing to provide the necessaries of life, the trial judge instructed the jury that the Crown is required to prove that the failure of the accused to provide the necessaries of life was a marked departure from what a reasonable parent would do in the same circumstances. He proceeded to explain that the Crown could do so in either of two ways: “by proving that [J.F.] was aware of a danger or risk to the health or safety of [K.M.] but ignored that risk; or by proving that [J.F.] failed to direct his mind to the risk to the health or safety of [K.M.] which a reasonable parent would have understood” (A.R., at p. 603 (emphasis added)).
[33] Neither counsel objected to these instructions.
[34] Finally, in imposing sentence, the trial judge observed that the jury necessarily found that the accused “was aware of the risk to the health or safety of [K.M.] from his wife’s conduct but ignored that risk, or alternatively, he failed to direct his mind to the risk to the health or safety of the child that a reasonable parent would have understood” (A.R., at p. 641 (emphasis added)).
[35] In these circumstances, I am persuaded that the “operative statutory distinctions” advanced by the Crown on this appeal were hardly “operative” at all. Neither explains satisfactorily the inconsistent verdicts at trial.
V
[36] In Tutton, speaking for the Court on the relationship between criminal negligence and failure to provide necessaries, McIntyre J. explained the appropriate analytical framework in the clearest of terms. Justice McIntyre’s reasons, framed in accordance with the wording of the indictment in that case, are nonetheless applicable to the present appeal:
The task of a trial judge charging a jury in these circumstances would be difficult and, in my view, it would be necessary to keep clearly separate the two offences or the elements of the two offences which must be dealt with. This could be achieved by approaching the charge in two steps. The first step, I suggest, would be to deal with the underlying offence in s. 197(2) [now s. 215 ] of the Code, for under this indictment until this question is settled no approach can be made to the crime of manslaughter actually charged. The jury should be instructed on the elements of the offence under s. 197 and told that for a conviction under that section they must be satisfied beyond a reasonable doubt that the appellants were under a duty to provide necessaries of life to their son, and that they failed to do so without lawful excuse. If they were not so satisfied, they would acquit the accused and go no further, for the sole basis of the manslaughter allegation would be gone. If, however, they were to find that the accused had failed to provide the necessaries without lawful excuse, then it would be necessary for them to go further and consider whether in such failure they had shown a wanton and reckless disregard for the life and safety of their son. If the jury were satisfied beyond a reasonable doubt that such conduct had been shown and that it had caused the death of the child, they would be obligated to convict of manslaughter, and on this indictment that is the only way a conviction of manslaughter could be reached. If, on the other hand, the jury were not so satisfied, they would be required to acquit the accused of the crime of manslaughter. If, however, they were satisfied that the necessaries of life had been withheld but in doubt as to whether the deprivation was the cause of the son’s death, they could in that case convict of the included offence under s. 197 . . . . [Emphasis added; pp. 1427-28.]
[37] I agree with McIntyre J. that where criminal negligence is “piggy-backed” onto an alleged failure to provide the necessaries of life — as it was explicitly in Tutton and, in effect, here as well — the analysis may be expected to proceed in two stages. The jury would then consider whether the accused had a duty to protect the child — that is, to provide the necessaries of life — and whether the accused failed in that duty. If so, the jury would be entitled to find that the accused committed an offence under s. 215(2) (a)(ii). The jury would then be required to decide whether the accused, in failing to provide the necessaries of life, showed a wanton or reckless disregard for the life or safety of the child. If so, the jury would be bound to find the accused guilty of criminal negligence. If not, the jury could still find the accused guilty of failure to provide the necessaries of life, but not of criminal negligence.
VI
[38] For all of these reasons, I agree with the majority in the Court of Appeal that the verdicts rendered at trial are inconsistent and that the respondent’s conviction of manslaughter by criminal negligence must therefore be quashed.
[39] Unlike the Court of Appeal, however, I would not order a new trial. In an appropriate case, of which this is not one, a new trial may well be ordered where the verdicts at first instance are found to be inconsistent.
[40] Here, the respondent was found not to have committed manslaughter by failing to provide the necessaries of life. His conviction of manslaughter by criminal negligence could only be supported on a new trial upon a finding, contrary to the jury’s conclusion in this case, that the respondent did in fact fail in his duty to protect his child, the “necessar[y] of life” that was the factual foundation and the gravamen of both counts.
[41] The respondent’s acquittal was not appealed. To order a new trial in these circumstances would deprive the respondent of the benefit of that acquittal, now final, and expose him on the new trial to a finding that he did in fact commit the offence of which he was acquitted, definitively, by the jury in this case.
[42] In the result, I would affirm the order of the Court of Appeal setting aside the respondent’s conviction; dismiss the Crown’s appeal against that order; and allow the respondent’s cross-appeal against the subsidiary order of the Court of Appeal directing a new trial on the charge of manslaughter by criminal negligence and order that an acquittal be entered instead.
The following are the reasons delivered by
[43] Deschamps J. (dissenting) — This appeal raises questions about the nature of the enquiry a court of appeal should conduct when an appellant contends that two verdicts are inconsistent. In considering such an argument, the court of appeal must determine whether the verdict appealed from is “unreasonable” (s. 686(1) (a)(i) of the Criminal Code, R.S.C. 1985, c. C-46 ) because it “tends to indicate that the jury must have been confused as to the evidence or must have reached some sort of unjustifiable compromise” (R. v. McShannock (1980), 55 C.C.C. (2d) 53 (Ont. C.A.), at p. 56, approved in R. v. Pittiman, [2006] 1 S.C.R. 381, 2006 SCC 9, at para. 7). I have read the reasons of my colleague Fish J. and, with respect, I cannot agree with his approach, which broadens the rule and creates a new but ill‑defined notion of inconsistent verdicts. I would allow the appeal and restore the conviction.
[44] K.M. was four years old when he died of injuries suffered in the foster home he had been living in for two months. His foster parents were charged. The foster mother, V.F., pleaded guilty to manslaughter. J.F., her husband, was charged with manslaughter by criminal negligence and manslaughter by failing to provide the necessaries of life. He was convicted on the count of criminal negligence and acquitted of the one of failing to provide the necessaries of life