R. v. Javanmardi, 2019 SCC 54
UNLAWFUL ACT MANSLAUGHTER - CRIMINAL NEGLIGENCE CAUSING DEATH - FAULT ELEMENT
Facts
Mitra Javanmardi operates a naturopathy clinic in Quebec. While Quebec does not regulate naturopathy, she meets the professional standard requirements of other provinces. Javanmardi has significant experience administering intravenous injections. Although legal in most provinces, intravenous administration of nutrients by naturopaths is not legal in Quebec. In June 2008, Roger Matern and his wife visited Javanmardi’s clinic due to his issues with heart disease. Javanmardi suggested the use of intravenously administered nutrients. The nutrients were purchased from a reputable pharmacy; Javamardi had the authority to purchase such nutrients. Matern insisted on receiving treatment that day. Matern reacted negatively to the injection immediately. Javanmardi stopped the injection, checked his vital signs (which were stable) and confirmed there was no infection on the site of injection. Matern did not want to go to the hospital, his wife and daughter took him home. Javanmardi explained that he needed to stay hydrated and that he should be taken to the hospital if the symptoms worsened. Later that night, Matern’s daughter called an ambulance. Doctors confirmed he exhibited signs of endotoxic shock. He died a few hours later attributable to the presence of bacteria in one of the vials from which Javanmardi drew the nutrients from.
Procedural Background
Javanmardi was charged with criminal negligence causing death contrary to section 220(b) of the Criminal Code, and manslaughter contrary to sections 234 and 236(b). At trial, Villemure J acquitted Javanmardi of both charges on the basis that she had the necessary skills to administer these injections, and had taken sufficient precautions at every stage. The trial judge declined to consider the constitutionality of the offences under which she had been charged. The Quebec Court of Appeal set aside both acquittals, and substituted a conviction on the charge of unlawful act manslaughter and ordered a new trial on the criminal negligence charge. The QCCA rejected Javanmardi’s arguments that the provisions were unconstitutional.
The Majority’s Analysis
Both charges are premised on the same unlawful act: administering an intravenous injection contrary to the Medical Act.
Criminal Negligence Causing Death
The actus reus requires (1) that the accused undertook an act or omitted to do anything that was their legal act to do and (2) that the act or omission caused someone’s death.
The mens rea requires that the act or omission show “wanton or reckless disregard for the lives or safety of other persons”. R v JF, 2008 SCC 60 confirmed that the fault element is assessed on a modified objective standard. The accused’s conduct must represent a marked and substantial departure from that of a reasonable person in the circumstances.
Unlawful Act Manslaughter
The actus reus under s. 222(5) requires (1) that the accused committed an unlawful act and (2) that the unlawful act caused death. The fault element requires objective foreseeability of the risk of bodily harm that is neither trivial nor transitory coupled with the fault element of the predicate unlawful act. For predicate offences involving carelessness or negligence the fault element requires a marked departure from the standard of the reasonable person.
There is no independent actus reus requirement of objective dangerousness. An unlawful act, accompanied by objective foreseeability of the risk of bodily harm, is an objectively dangerous act.
The Court of Appeal overturned the trial judge’s acquittals on the basis that Javanmardi’s academic training was irrelevant in assessing whether her conduct amounted to a marked departure from that of a reasonable person.
While the modified objective 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. The trial judge was therefore entitled, but also obligated to consider Javanmardi’s extensive training, experience and qualifications as a naturopath.
Additionally, the Court of Appeal’s conclusion that Javanmardi’s conduct markedly departed from that of a reasonable person is incompatible with the trial judge’s findings of fact (see above). Appellate courts must be careful not to reweigh the evidence or substitute its own findings for that of the trial judge.
Abella J, writing for the court, allows the appeal and restores both acquittals.
The Dissent’s Analysis
Wagner CJ and Rowe J find that unlawful act manslaughter has three actus reus elements: (1) an underlying unlawful act, (2) the objective dangerousness of that act, and (3) a causal connection between the act and the death. This second element requires that the impugned act be an act that a reasonable person would know is likely to subject another person to a risk of bodily harm. Unlike the majority, Wagner and Rowe do not find this element to be redundant in light of the mens rea requirements for unlawful act manslaughter. In their view, “objective dangerousness” does not require the court to assess the extent to which the accused’s conduct departed from the standard of care. Rather, this actus reus element acts as an evidentiary threshold in determining whether the accused did something that a reasonable person would have known was dangerous. This element is assessed without reference to the accused’s personal characteristics. Unlawful act manslaughter has two cumulative mens rea elements: the fault element of the predicate offence and the fault element specific to manslaughter. Injecting substances intravenously is inherently dangerous. Javanmardi’s experience does not negate this. The trial judge’s failure to find Javanmardi’s action inherently dangerous was an error of law that requires a new trial.