R. v. Javanmardi

R. v. Javanmardi
Collection
Supreme Court Judgments
Date
2019-11-14
Neutral citation
2019 SCC 54
Report
[2019] 4 SCR 3
Case number
38188
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from
Quebec
Subjects
Criminal law
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Javanmardi, 2019 SCC 54, [2019] 4 S.C.R. 3
Appeal Heard: May 15, 2019 Judgment Rendered: November 14, 2019 Docket: 38188
Between:
Mitra Javanmardi
Appellant
and
Her Majesty The Queen and
Attorney General of Quebec
Respondents
- and -
Association des avocats de la défense de Montréal,
Québec Association of Naturopathic Medicine,
Association des naturopathes agréés du Québec,
Canadian Association of Naturopathic Doctors and
Criminal Lawyers’ Association
Interveners
Official English Translation: Reasons of Wagner C.J.
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown and Rowe JJ.
Reasons for Judgment: (paras. 1 to 46)
Abella J. (Moldaver, Karakatsanis, Côté and Brown JJ. concurring)
Dissenting Reasons: (paras. 47 to 84)
Wagner C.J. (Rowe J. concurring)
r. v. javanmardi
Mitra Javanmardi Appellant
v.
Her Majesty The Queen and
Attorney General of Quebec Respondents
and
Association des avocats de la défense de Montréal,
Québec Association of Naturopathic Medicine,
Association des naturopathes agréés du Québec,
Canadian Association of Naturopathic Doctors and
Criminal Lawyers’ Association Interveners
Indexed as: R. v. Javanmardi
2019 SCC 54
File No.: 38188.
2019: May 15; 2019: November 14.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for quebec
Criminal law — Unlawful act manslaughter — Criminal negligence causing death — Elements of offence — Naturopath charged and acquitted at trial in death of patient — Court of Appeal setting aside acquittals — Whether Crown must prove that underlying unlawful act was objectively dangerous to establish actus reus of unlawful act manslaughter — Whether Court of Appeal erred in intervening — Criminal Code, R.S.C. 1985, c. C‑46, ss. 220 , 222(5) (a).
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 requires 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.
Cases Cited
By Abella J.
Considered: R. v. Creighton, [1993] 3 S.C.R. 3; referred to: R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215; R. v. Tutton, [1989] 1 S.C.R. 1392; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49; R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60; R. v. L. (J.) (2006), 204 C.C.C. (3d) 324; R. v. Al‑Kassem, 2015 ONCA 320, 78 M.V.R. (6th) 183; R. v. Sharp (1984), 12 C.C.C. (3d) 428; R. v. Fontaine, 2017 QCCA 1730, 41 C.R. (7th) 330; R. v. Blostein, 2014 MBCA 39, 306 Man. R. (2d) 15; R. v. DeSousa, [1992] 2 S.C.R. 944; R. v. Plein, 2018 ONCA 748, 50 C.R. (7th) 41; R. v. Kahnapace, 2010 BCCA 227, 76 C.R. (6th) 38; R. v. L.M., 2018 NWTTC 6; R. v. P.S., 2018 ONCJ 274; R. v. Curragh Inc. (1993), 125 N.S.R. (2d) 185; R. v. Fournier, 2016 QCCS 5456; R. v. Gendreau, 2015 QCCA 1910; R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021.
By Wagner C.J. (dissenting)
R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197; Vézeau v. The Queen, [1977] 2 S.C.R. 277; R. v. Morin, [1988] 2 S.C.R. 345; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021; R. v. DeSousa, [1992] 2 S.C.R. 944; R. v. Creighton, [1993] 3 S.C.R. 3; Autorité des marchés financiers v. Patry, 2015 QCCA 1933; R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49; Kienapple v. The Queen, [1975] 1 S.C.R. 729; R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215.
Statutes and Regulations Cited
Criminal Code , R.S.C. 1985, c. C‑46, ss. 219 , 220 , 222(1) , (4) , (5) , 234 , 236 (b).
Medical Act, CQLR, c. M‑9, s. 31.
Authors Cited
Canadian Judicial Council. Model Jury Instructions, last updated July 2012 (online).
Ferguson, Gerry A., and Michael R. Dambrot. CRIMJI: Canadian Criminal Jury Instructions, vol. 2, 4th ed. Vancouver: The Continuing Legal Education Society of British Columbia, 2005 (loose‑leaf updated November 2018).
Grant, Isabel, Dorothy Chunn and Christine Boyle. The Law of Homicide. Scarborough, Ont.: Carswell, 1994 (loose‑leaf updated 1999, release 1).
Healy, Patrick. “The Creighton Quartet: Enigma Variations in a Lower Key” (1993), 23 C.R. (4th) 265.
Roach, Kent. Criminal Law, 7th ed. Toronto: Irwin Law, 2018.
Stewart, Hamish. “F. (J.): The Continued Evolution of the Law of Penal Negligence” (2008), 60 C.R. (6th) 243.
Watt, David. Watt’s Manual of Criminal Jury Instructions, 2nd ed. Toronto: Thomson/Carswell, 2015.
Wilson, Larry C. “Beatty, J.F., and the Law of Manslaughter” (2010), 47 Alta. L. Rev. 651.
Wilson, Larry C. “Too Many Manslaughters” (2007), 52 Crim. L.Q. 433.
Yeo, Stanley. “The Fault Elements for Involuntary Manslaughter: Some Lessons from Downunder” (2000), 43 Crim. L.Q. 291.
APPEAL from a judgment of the Quebec Court of Appeal (Hilton, Gagnon and Marcotte JJ.A.), 2018 QCCA 856, 47 C.R. (7th) 296, [2018] AZ‑51499093, [2018] J.Q. no 4661 (QL), 2018 CarswellQue 4498 (WL Can.), substituting the acquittal for unlawful act manslaughter entered by Villemure Prov. Ct. J., C.Q., No. 500‑01‑013474‑082, April 8, 2015, with a conviction, and ordering a new trial for criminal negligence causing death. Appeal allowed, Wagner C.J. and Rowe J. dissenting.
Isabel J. Schurman, Julius Grey, Francis Villeneuve Ménard and Rose‑Mélanie Drivod, for the appellant.
Christian Jarry, for the respondent Her Majesty The Queen.
Julien Bernard, Jean‑Vincent Lacroix and Alexandre Duval, for the respondent the Attorney General of Quebec.
Michel Marchand and Christian Desrosiers, for the intervener Association des avocats de la défense de Montréal.
Giuseppe Battista, for the interveners the Québec Association of Naturopathic Medicine and Association des naturopathes agréés du Québec.
Benjamin Grant, Marion Sandilands and David Wilson, for the intervener the Canadian Association of Naturopathic Doctors.
Anil K. Kapoor and Dana C. Achtemichuk, for the intervener the Criminal Lawyers’ Association.
The judgment of Abella, Moldaver, Karakatsanis, Côté and Brown JJ. was delivered by
[1] Abella J. — Mitra Javanmardi opened a naturopathic clinic in Quebec in 1985. She has a degree in science from McGill University, a doctorate in naturopathic medicine from the National College of Naturopathic Medicine in Portland, Oregon, and a related diploma which involved 500 hours of further courses. Ms. Javanmardi’s education included classes and clinical training about intravenous injection techniques. She has treated between 4,000 and 5,000 patients at her clinic since it opened and, starting in 1992, has administered nutrients to approximately ten patients per week by way of intravenous injection. Intravenous administration of nutrients by naturopaths is not legal in Quebec but is lawful in most provinces.
[2] On June 12, 2008, Roger Matern and his wife visited Ms. Javanmardi’s clinic. Mr. Matern was 84 years old and had heart disease. He was frustrated with the treatment he had received at conventional medical clinics and hoped that naturopathy would improve his quality of life. After an hour-long consultation, Ms. Javanmardi recommended intravenously administered nutrients. Despite Ms. Javanmardi’s telling him that she did not normally administer intravenous injections on a first visit, Mr. Matern insisted on having an intravenous treatment that day.
[3] Ms. Javanmardi prepared the nutrient solution for Mr. Matern’s intravenous injection. It contained magnesium chloride, manganese chloride, potassium chloride, L-Taurine, L-Carnitine, and sterile water. To create the solution, Ms. Javanmardi combined nutrients from separate vials. One vial contained L-Carnitine. Mr. Matern was the third patient to whom L-Carnitine from the same vial had been administered that day. The other two patients did not have adverse reactions to their injections. The vial turned out to be contaminated.
[4] Mr. Matern reacted negatively to the injection almost immediately. He complained of being hot and nauseous. Ms. Javanmardi stopped the intravenous injection and checked Mr. Matern’s vital signs, which were stable. Mr. Matern had no fever, was not experiencing confusion, and there was no sign of infection on the site of the injection.
[5] Throughout Ms. Javanmardi’s career, no patient had ever been infected during an intravenous injection. She thought that Mr. Matern could be having a hypoglycaemic reaction and suggested he eat some sugar. Mr. Matern consumed a spoonful of honey and orange juice.
[6] Despite his symptoms, Mr. Matern said that he did not want to go to the hospital. His wife and daughter took him home. In a call later that day with Mr. Matern’s daughter, Ms. Javanmardi explained that Mr. Matern needed to stay hydrated and advised his daughter to take him to the hospital if she was unable to keep him hydrated.
[7] That night, Mr. Matern’s daughter called an ambulance because she was concerned that her father’s condition was worsening. Doctors at the hospital noted signs of endotoxic shock. Mr. Matern’s symptoms continued to worsen and he died of endotoxic shock some hours later.
[8] Ms. Javanmardi was charged with criminal negligence causing death contrary to s. 220 (b) of the Criminal Code , R.S.C. 1985, c. C-46 , and manslaughter, contrary to ss. 234 and 236 (b) of the Criminal Code .
[9] At trial, the Crown identified several of Ms. Javanmardi’s acts or omissions as the bases for criminal negligence causing death and as predicate offences for unlawful act manslaughter. Of these, only one act, the intravenous injection administered contrary to s. 31 of Quebec’s Medical Act, CQLR, c. M-9, was argued before this Court as the basis for both charges.[1]
[10] The trial lasted for 39 days. In a 50-page, 453-paragraph judgment which thoroughly and carefully canvassed the evidence, Villemure J. made the following findings of fact:
• According to the expert evidence, the nutrients Ms. Javanmardi selected for Mr. Matern’s intravenous injection were “benign” and “potentially helpful”;
• Ms. Javanmardi had the required skills to administer intravenous injections. She has a degree in science from McGill University and a doctorate in naturopathic medicine from the National College of Naturopathic Medicine. This university is recognized in its field. Her four-year education there included one year of courses based on traditional medicine. She was also trained in the administration of intravenous injections, pharmacology, and the interaction of nutrients with other medications. In addition, she got a diploma from the Homeopathic Academy of Naturopathic Physicians, which involved 500 hours of courses. Ms. Javanmardi acquired further skills by practicing naturopathy at her clinic since 1985, and she had almost two decades of experience in administering intravenous injections to patients;
• While Quebec does not regulate naturopathy, Ms. Javanmardi aligned her professional standards with the regulations in other provinces;
• Ms. Javanmardi purchased her nutrients from a reputable Ontario pharmacy that complied with provincial health and safety regulations. As a naturopath, Ms. Javanmardi was authorized to purchase those nutrients in Ontario;
• Ms. Javanmardi was knowledgeable about nutrients. This enabled her to identify which ones correspond to the specific needs of different patients. The information Mr. Matern gave to Ms. Javanmardi about his medical condition was sufficient for Ms. Javanmardi to determine which nutrients could ameliorate his condition;
• Ms. Javanmardi was alive to the need to observe sterilization protocols for administering intravenous injections and had taken sufficient precautionary measures to prevent contamination. The way she stored and preserved the vials used for intravenous injections, including in this case, aligned with the specific properties of each vial and with the instructions of the pharmacist who supplied them;
• Mr. Matern knew that Ms. Javanmardi was not a physician. Mr. Matern immediately wanted an intravenous injection of nutrients and validly consented to the procedure; and
• Mr. Matern died of endotoxic shock attributable to the presence of bacteria in the L-Carnitine vial from which Ms. Javanmardi drew nutrients for his injection. Due to the high concentration of bacteria in the injected solution, Mr. Matern’s death was inevitable from the moment he was given the intravenous injection.
[11] Villemure J. was satisfied that Ms. Javanmardi had the necessary skills to administer intravenous injections, had observed the required protocols and had taken sufficient precautions at every stage of the process.
[12] Based on these findings, Villemure J. acquitted Ms. Javanmardi of both charges. As to the charge of criminal negligence causing death, Villemure J. concluded that Ms. Javanmardi’s conduct did not show a marked departure from the standard of care that a reasonable person in her circumstances would have exercised. Villemure J. was not satisfied that a reasonable person would have been aware of any risk inherent in Ms. Javanmardi’s conduct and therefore concluded that the Crown had not proved beyond a reasonable doubt that Ms. Javanmardi’s conduct showed wanton or reckless disregard for Mr. Matern’s life or safety.
[13] In dealing with the unlawful act manslaughter charge, and focusing on the “unlawful act” of administering an intravenous injection contrary to Quebec’s Medical Act, Villemure J. concluded that the intravenous injection was not objectively dangerous. A reasonable person in Ms. Javanmardi’s circumstances would not have foreseen that intravenously administering a benign solution, in accordance with proper procedures, would create a risk of harm.
[14] Having acquitted Ms. Javanmardi, Villemure J. declined to consider supplementary arguments made by Ms. Javanmardi’s counsel about the constitutionality of the offences under which she had been charged.
[15] The Court of Appeal set aside both acquittals. It concluded that Villemure J. misstated the elements of unlawful act manslaughter and criminal negligence causing death, and further erred by considering the training that Ms. Javanmardi had received in the course of her education to become a naturopath. In the Court of Appeal’s view, the intravenous injection was objectively dangerous and Ms. Javanmardi’s conduct constituted a marked departure from the reasonable person standard. The Court of Appeal substituted a conviction on the charge of unlawful act manslaughter and ordered a new trial on the criminal negligence charge.[2] The Court of Appeal briefly considered — and rejected — Ms. Javanmardi’s arguments that the provisions under which she was charged were unconstitutional.
[16] For the following reasons, I would allow Ms. Javanmardi’s appeal on both charges and restore the acquittals.
Analysis
[17] The charges for both criminal negligence causing death and unlawful act manslaughter were based on the same conduct: administering an intravenous injection contrary to Quebec’s Medical Act. As the facts of this case demonstrate, there is a great deal of overlap between unlawful act manslaughter and criminal negligence causing death. Nonetheless, to begin the analysis, the offences must be approached separately.
[18] The relevant Criminal Code provisions dealing with criminal negligence are:
219 (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it 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 a 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.
[19] 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.
[20] 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).
[21] 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.[3] 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.)).
[22] 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), 41 C.R. (7th) 330, at para. 27; R. v. Blostein (2014), 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]
[23] 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).
[24] Turning to unlawful act manslaughter, the following Criminal Code provisions apply:
222 (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
. . .
(4) Culpable homicide is murder or manslaughter or infanticide.
(5) A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act;
(b) by criminal negligence;
(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or
(d) by wilfully frightening that human being, in the case of a child or sick person.
. . .
234 Culpable homicide that is not murder or infanticide is manslaughter.
[25] The actus reus of unlawful act manslaughter under s. 222(5) (a) requires the Crown to prove that the accused committed an unlawful act and that the unlawful act caused death (R. v. Creighton, [1993] 3 S.C.R. 3, at pp. 42-43; R. v. DeSousa, [1992] 2 S.C.R. 944, at pp. 959 and 961-62). The underlying unlawful act is described as the “predicate” offence (DeSousa, at p. 956; Creighton, at p. 42). The predicate offence in Ms. Javanmardi’s case is administering the intravenous injection contrary to s. 31 of Quebec’s Medical Act, a strict liability offence.
[26] There has been some uncertainty around whether the Crown must prove that the predicate offence was “objectively dangerous” (see Larry C. Wilson, “Too Many Manslaughters” (2007), 52 Crim. L.Q. 433, at p. 459, citing Isabel Grant, Dorothy Chunn and Christine Boyle, The Law of Homicide (loose-leaf), at pp. 4-15, 4-16 and 4-20; Stanley Yeo, “The Fault Elements for Involuntary Manslaughter: Some Lessons from Downunder” (2000), 43 Crim. L.Q. 291, at p. 293). In my view, the “objective dangerousness” requirement adds nothing to the analysis that is not captured within the fault element of unlawful act manslaughter — objective foreseeability of the risk of bodily harm that is neither trivial nor transitory (Creighton, at pp. 44-45). An unlawful act, accompanied by objective foreseeability of the risk of bodily harm that is neither trivial nor transitory, is an objectively dangerous act.
[27] Support for this position is found in DeSousa, which has been cited as the definitive statement of the fault element of unlawful act manslaughter (Creighton, at pp. 44-45). In DeSousa, Sopinka J. considered the meaning of “unlawful act” for the purposes of the offence of unlawfully causing bodily harm, concluding that the unlawful act must be objectively dangerous in the sense that there is objective foreseeability of bodily harm:
English authority has consistently held that the underlying unlawful act required by its manslaughter offence requires proof that the unlawful act was “likely to injure another person” or in other words put the bodily integrity of others at risk (see also R. v. Hall (1961), 45 Cr. App. R. 366 (C.C.A.); R. v. Church (1965), 49 Cr. App. R. 206 (C.C.A.); Director of Public Prosecutions v. Newbury (1976), 62 Cr. App. R. 291 (H.L.), and Director of Public Prosecutions v. Daley (1978), 69 Cr. App. R. 39 (P.C.)). This position has also been adopted by most Canadian courts. [p. 959]
[28] Subsequent cases and academic writing confirm that there is no independent actus reus requirement of objective dangerousness. As Patrick Healy observed, this Court in Creighton agreed that the element of dangerousness connotes an element of fault (“The Creighton Quartet: Enigma Variations in a Lower Key” (1993), 23 C.R. (4th) 265, at pp. 271-73). Others too have suggested that “dangerousness can be seen as entirely subsumed within the concept of foreseeability of harm, and should be discarded as unnecessarily complicated” (Grant et al., at pp. 4-15 to 4-16; see also R. v. Plein (2018), 50 C.R. (7th) 41, at para. 30; R. v. Kahnapace (2010), 76 C.R. (6th) 38, at para. 28; R. v. L.M., 2018 NWTTC 6, at para. 31 (CanLII); R. v. P.S., 2018 ONCJ 274, at paras. 205-6 (CanLII)).
[29] There is little benefit, in my view, to inviting judges or juries to first consider the objective “dangerousness” of the accused’s actions in a vacuum, and then duplicate that exercise with the benefit of context when they reach the fault element of the offence. Model jury instructions already avoid this repetition, which introduces unnecessary complexity into the offence of unlawful act manslaughter, increasing the risk of confusion and legal error (the Hon. Justice David Watt, Watt’s Manual of Criminal Jury Instructions (2nd ed. 2015), at p. 739; Gerry A. Ferguson and the Hon. Justice Michael R. Dambrot, CRIMJI: Canadian Criminal Jury Instructions (4th ed. (loose-leaf)), vol. 2, at p. 6.39-6; National Judicial Institute, Model Jury Instructions (online, at D.6)).
[30] 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.
[31] 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 to 4-15; Larry C. Wilson, “Beatty, J.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. v. 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).
[32] Both charges against Ms. Javanmardi, therefore, required her conduct to be measured against the standard of a reasonable person in her circumstances — as part of the fault element of both criminal negligence and the predicate offence for unlawful act manslaughter.
[33] This leads me to the Court of Appeal’s reasons for overturning Ms. Javanmardi’s acquittals.
[34] The Court of Appeal held that in acquitting Ms. Javanmardi of both charges, Villemure J. misapplied the “reasonable person” standard. According to the Court of Appeal, Villemure J. erred by referring to Ms. Javanmardi’s training and experience in intravenous injections when deciding whether her conduct constituted a marked departure from that of a reasonable person. In the Court of Appeal’s view, evidence of Ms. Javanmardi’s academic training was not relevant to the nature and circumstances of the activity.
[35] With respect, I see no error in how Villemure J. assessed the reasonableness of Ms. Javanmardi’s conduct.
[36] This Court most comprehensively considered how to assess and apply the reasonable person standard in Creighton. In that case, a woman died as a result of a cocaine injection given to her by Marc Creighton, a drug dealer. McLachlin J. clarified that the modified objective standard is “that of the reasonable person in all the circumstances of the case” (p. 41). She endorsed the “reasonable person” standard in order to maintain “a uniform standard for all persons . . . regardless of their background, education or psychological disposition” (p. 60). In her view, “[w]ithout a constant minimum standard, the duty imposed by the law would be eroded and the criminal sanction trivialized” (p. 70). She concluded that Mr. Creighton’s habitual drug use was not to be considered in setting the “reasonable person” standard.
[37] McLachlin J. explained, however, that greater care may be expected of the “reasonable person” on the basis of the nature and circumstances of the activity (p. 72). Certain activities, for example, require special attention and skill. An accused undertaking such an activity may be found to have breached the reasonable person standard if he or she is not qualified to provide the special care that the activity requires, or negligently failed to exercise such care while engaged in the activity. In this way, the law maintains a “constant minimum standard” for every person who engages in an activity requiring special care and skill: they must be both qualified and exercise the special care that the activity requires.
[38] Creighton’s activity-sensitive approach to the modified objective standard has been applied in a variety of contexts, including in cases involving driving, hunting and parenting (Beatty, at para. 40; R. v. Gendreau, 2015 QCCA 1910, at para. 30 (CanLII); J.F., at paras. 8-9). These decisions confirm that while the standard is not determined by the accused’s personal characteristics, it is informed by the activity. In this case, the activity is administering an intravenous injection, and the standard to be applied is that of the reasonably prudent naturopath in the circumstances.
[39] In measuring Ms. Javanmardi’s conduct against this standard, Villemure J. was not only entitled, she was obliged to consider her prior training, experience and qualifications as a naturopath. Where the Crown’s theory is, as it is in this case, that the accused engaged in an activity without the requisite training and knowledge, the accused’s activity-specific knowledge and experience are clearly relevant to determining whether the applicable standard of care was met. An accused’s training and experience may, for example, be used to rebut an allegation of being unqualified to engage in an activity. Evidence of training and experience may also be used to show how a reasonable person would have performed the activity in the circumstances.
[40] In this case, Ms. Javanmardi’s professional experience and her education were relevant in determining whether she was qualified for the activity in which she was engaged and were, as a result, relevant in determining whether she met the applicable standard of care. I see no error in Villemure J.’s treatment of this evidence, which the defence adduced to rebut the allegation that Ms. Javanmardi was not qualified to administer an intravenous injection. The Court of Appeal, with respect, erred in overturning Ms. Javanmardi’s acquittals on this basis.
[41] The Court of Appeal also erred in disturbing Ms. Javanmardi’s acquittals based on its conclusion that her conduct markedly departed from that of a reasonable person. This conclusion, with respect, cannot be squared with Villemure J.’s findings of fact. Based on these findings, which the Court of Appeal inexplicably replaced with its own, Villemure J. concluded that Ms. Javanmardi’s conduct did not constitute a marked departure from that of a reasonable person in her circumstances. As explained above, Villemure J. found that Ms. Javanmardi was properly qualified to administer intravenous injections; aligned her practice with established professional standards in other jurisdictions; purchased nutrients from a reputable Ontario pharmacy; chose nutrients that were appropriate for Mr. Matern’s condition; stored and preserved the vial used for the intravenous injection in a manner consistent with the properties of the vial and the instructions of the supplying pharmacist; and took the necessary precautions at every stage of administering the intravenous injection, including observing sufficient protocols to prevent sepsis.
[42] This Court has frequently cautioned against appellate courts transforming their opposition to a trial judge’s factual findings and inferences into attributed legal errors (R. v. George, [2017] 1 S.C.R. 1021, at para. 17). There is no basis for overturning Villemure J.’s findings or her conclusion that the marked departure threshold was not met. It was not open to the Court of Appeal, with respect, to reweigh the evidence or substitute its own factual findings on this critical issue.
[43] Nor was the Court of Appeal justified in interfering with the acquittal for criminal negligence causing death because Villemure J. had misstated the applicable legal standard. The Court of Appeal concluded that by applying the marked departure instead of the marked and substantial departure standard, Villemure J. erred. She did, but since Villemure J. found that Ms. Javanmardi’s conduct did not meet the lower threshold of a marked departure from the reasonable person standard, she would not have found that the conduct satisfied the higher standard of a marked and substantial departure. The erroneous articulation of the fault element for criminal negligence causing death was therefore irrelevant to the outcome.
[44] With respect to the acquittal for unlawful act manslaughter, the Court of Appeal held that Villemure J. erred in law by failing to recognize that intravenous injections are objectively dangerous. As I have explained, objective dangerousness is no longer an independent requirement of unlawful act manslaughter — it has been subsumed in the fault element of whether there was an objectively foreseeable risk of bodily harm. All of Villemure J.’s factual findings, which were based on the evidence, amply support the conclusion that an intravenous injec