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CRIMINAL NEGLIGENCE - Causing death by criminal negligence - Homicide - Manslaughter

Thursday, November 14, 2019 @ 2:37 PM  

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Appeal from a judgment of the Quebec Court of Appeal substituting the acquittal of Javanmardi for unlawful act manslaughter with a conviction and ordering a new trial for criminal negligence causing death. Javanmardi, a naturopath, administered nutrients to Matern intravenously. Matern reacted negatively to the injection almost immediately. Throughout Javanmardi’s career, no patient had ever been infected during an intravenous injection. Despite his symptoms, Matern said that he did not want to go to the hospital. His wife and daughter took him home. That night, 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. Matern’s symptoms continued to worsen and he died of endotoxic shock some hours later. Javanmardi was charged with criminal negligence causing death and manslaughter. At trial, the Prosecution pointed to several of 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, was argued before the Court as the basis for both charges. The trial judge was satisfied that 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. Javanmardi was acquitted of both charges. The Court of Appeal set aside both acquittals. It concluded that the trial judge misstated the elements of unlawful act manslaughter and criminal negligence causing death, and further erred by considering the training that 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 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.

HELD: Appeal allowed. 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 with other negligence-based criminal offences, the fault element of criminal negligence causing death was assessed by measuring the degree to which the accused’s conduct departed from that of a reasonable person in the circumstances. In the context of criminal negligence causing death, the requisite degree of departure was an elevated one. The “objective dangerousness” requirement added nothing to the analysis that was not captured within the fault element of unlawful act manslaughter. The actus reus of unlawful act manslaughter was satisfied by proof beyond a reasonable doubt that the accused committed an unlawful act that caused death. There was no independent requirement of objective dangerousness. 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. There was no error in the trial judge’s treatment of this evidence which the Defence adduced to rebut the allegation that Javanmardi was not qualified to administer an intravenous injection. The Court of Appeal erred in overturning Javanmardi’s acquittals on this basis. The Court of Appeal also erred in disturbing Javanmardi’s acquittals based on its conclusion that her conduct markedly departed from that of a reasonable person. This conclusion could not be squared with the trial judge’s findings of fact. Based on these findings, which the Court of Appeal inexplicably replaced with its own, the trial judge concluded that Javanmardi’s conduct did not constitute a marked departure from that of a reasonable person in her circumstances. Nor was the Court of Appeal justified in interfering with the acquittal for criminal negligence causing death. The Court of Appeal erred in substituting its view that an intravenous injection was objectively dangerous regardless of the circumstances in which it was administered. The trial judge erred in her articulation of the fault element for unlawful act manslaughter. The proper test was objective foreseeability of a risk of bodily harm that was neither trivial nor transitory. But this error was immaterial, because even had the trial judge applied the proper test, she would still have acquitted Javanmardi. The appeal should be allowed and the acquittals for both criminal negligence causing death and unlawful act manslaughter should be restored.

R. v. Javanmardi, [2019] S.C.J. No. 54, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown and M. Rowe, November 14, 2019. Digest No. TLD-November112019011SCC