R. v. Gardner and Fraser, 2021 NSCA 52

Nova Scotia Court of Appeal Citation: R. v. Gardner and Fraser , 2021 NSCA 52 Date: 20210624 Docket: CAC 495561 CAC 495793 CAC 500442 Registry: Halifax Between: Cheryl Gardner Appellant v. Her Majesty the Queen Respondent Between: Dan Fraser Appellant v. Her Majesty the Queen Respondent Between: Her Majesty the Queen Appellant v. Cheryl Gardner and Dan Fraser Respondents Judge: The Honourable Justice Duncan R. Beveridge Appeal Heard: January 28, 2021, in Halifax, Nova Scotia Subject: Criminal law: adequacy of jury instructions for the offence of criminal negligence causing death

Summary: Three police officers arrested Corey Rogers for public intoxication. On the way to the police station, he threatened and spit at them. When he would not stop, they put a spit hood on him. Mr. Rogers refused to get out of the police car or walk into the station. They carried him inside. The appellants, Special Constables Fraser and Gardner, were on duty in the Prisoner Care Facility. They had previous experience with Mr. Rogers as a prisoner, frequently for public intoxication violations. The arresting officers told the appellants that Mr. Rogers was playing possum and deciding to be uncooperative.

The arresting officers put Mr. Rogers into a “dry cell”, which contained no water facilities or bed. They did not remove the spit hood. Prisoners usually do so themselves once the handcuffs are removed. Mr. Rogers did not. The PCF policy mandated what are referred to as 4R cell checks. The appellants did cell checks, but not to the level set by the policy. Mr. Rogers vomited. The spit hood was impermeable, causing Mr. Rogers to suffocate. The trial judge refused to charge the jury about the appropriate standard of care or the role policies play in determining it.

The jury said they could not decide if the appellants’ conduct amounted to a marked and substantial departure from the requisite standard of care. The trial judge reformulated his jury charge, but again did not relate any of the evidence to the issues the jury had to decide. Issues: Did the trial judge adequately charge the jury?

Result: The trial judge failed to instruct the jury on the issue of what was the standard of care a reasonable Booking Officer owed and how to determine if the identified omissions by the respective appellants not only amounted to a failure to meet that standard of care but amounted to a marked and substantial departure from it. At no time did the trial judge instruct the jury to: consider the appellants’ respective perceptions; were they reasonably held; and, whether a reasonable Booking Officer would have appreciated the risks associated with the acts or omissions said to have caused Mr. Rogers’ death.

Nor did the trial judge ever refer to the evidence that could inform the jury about the standard of care of a reasonable Booking Officer and the appropriate role for the policies relied upon by the Crown. The jury obviously struggled with their decision. They sought help. Unfortunately, the re-charge was not complete, comprehensive, or correct. It failed to review the evidence and relate it to the re-defined issues.

Importantly, it did not provide an instruction on the modified objective test to decide if the conduct of the appellants were a marked and substantial departure from the standard of care of a reasonably prudent Booking Officer in all of the circumstances. The appeals from conviction were allowed and a new trial ordered, at the discretion of the Crown. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 47 pages. Nova Scotia Court of Appeal Citation: R. v.

Gardner and Fraser , 2021 NSCA 52 Date: 20210624 Docket: CAC 495561 CAC 495793 CAC 500442 Registry: Halifax Between: Cheryl Gardner Appellant v. Her Majesty the Queen Respondent Between: Dan Fraser Appellant v. Her Majesty the Queen Respondent Between: Her Majesty the Queen Appellant v. Cheryl Gardner and Dan Fraser Respondents Judges: Beveridge, Farrar and Derrick, JJ.A.

Appeal Heard: January 28, 2021, in Halifax, Nova ScotiaHeld: Appeals from conviction allowed, per reasons for judgment of Beveridge, J.A.; Farrar and Derrick,JJ.A. concurringCounsel: Joel Pink, Q.C., Ronald Pizzo, and George Franklin, for Ms. Gardner David J. Bright, Q.C., for Mr. Fraser Christian Vanderhooft, for Her Majesty the Queen Reasons for judgment: INTRODUCTION [1] Corey Rogers should not have died in police custody. Mr. Rogers suffocated on his own vomit, alone in a cell. SpecialConstables Dan Fraser and Cheryl Gardner were the Booking Officers on duty when he died.

A jury convicted them of criminalnegligence causing Mr. Rogers’ death. [2] Special Csts. Gardner and Fraser appealed from their respective convictions. The sole issue was the adequacy of the trialjudge’s jury instructions. [3] The trial judge, the Honourable Justice Kevin Coady, imposed a three-year suspended sentence on each of the appellants andplaced them on probation with a number of conditions.

The Crown sought leave to appeal from this sentence, and the appellants cross-appealed to challenge the constitutionality of the Criminal Code provisions which denied them the availability of a conditional sentenceorder. [4] At the conclusion of the conviction appeals, the Court announced its unanimous view that the appeals from conviction must beallowed and a new trial ordered. As a consequence, there was no need to address the Crown’s application for leave to appeal nor theappellants’ cross-appeal. Written reasons would follow.

These are they. [5] I will set out the trial evidence, how the trial unfolded, and the trial judge’s jury charge. But first, in order to understand thesignificance of certain evidence (or its absence) and the charge’s deficiencies, I will start with an overview of the appropriate analyticalframework for the offence of criminal negligence causing death. GENERAL ANALYTICAL FRAMEWORK [6] The common law imposes a duty on everyone to use the care of a reasonably prudent individual where a failure to do so willforeseeably cause harm to another.

If that duty is breached and harm results, the person harmed can sue to be put back in the sameposition, as far as money damages can, as they were before the harm. [7] The Criminal Code contains a number of offences that criminalize negligent behaviour. The offences that have generated themost legal debate are dangerous driving and criminal negligence. I will refer to both offences because the law for each has developedhand in hand. Dangerous driving [8]

Section 249 of the Code made it an offence to operate a motor vehicle in a dangerous manner having regard to all of thecircumstances at the time or which might reasonably be expected (s. 249(1)) [now s. 320.13]. Penalties augment if the dangerous drivingcaused bodily harm or death (s. 249(3),(4)). [9] The Supreme Court of Canada, after considerable debate, reserved penal consequences under s. 249 for those whose drivingconduct was objectively dangerous and amounted to a marked departure from the standard of care of a reasonable person. But as theCourt stressed in R. v.

Hundal, (SCC), [1993] 1 S.C.R. 867, the fault element is not an entirely objective question. Instead, the Court endorsed what is known as the modified objective test. [10] Hundal was a case of dangerous driving causing death. Cory J. wrote the majority reasons for judgment. He acknowledgedthe existence of confusing and contradictory cases (paras. 19-21). Negligent driving spans a continuum, from momentary inattention tocarelessness to dangerous driving.

What separates dangerous driving from other wrongs is the requirement for the conduct to be amarked departure from the acceptable standard of care: [35] Thus, it is clear that the basis of liability for dangerous driving is negligence. The question to be asked is not what the accusedsubjectively intended but rather whether, viewed objectively, the accused exercised the appropriate standard of care. It is not overlydifficult to determine when a driver has fallen markedly below the acceptable standard of care.

There can be no doubt that the concept ofnegligence is well understood and readily recognized by most Canadians.

Negligent driving can be thought of as a continuum thatprogresses, or regresses, from momentary lack of attention giving rise to civil responsibility through careless driving under aprovincial Highway Traffic Act to dangerous driving under the Criminal Code. [Emphasis added] [11] Drawing on Supreme Court of Canada jurisprudence on criminal negligence, which I will discuss later, Cory J. proposed amodified objective test: [38] Although an objective test must be applied to the offence of dangerous driving it will remain open to the accused to raise areasonable doubt that a reasonable person would have been aware of the risks in the accused’s conduct.

The test must be applied with

some measure of flexibility. That is to say the objective test should not be applied in a vacuum but rather in the context of the events surrounding the incident . … [40] A modified objective test was aptly described by McIntyre J. in R. v. Tutton , supra , at p. 1413. Although he was dealing with criminal negligence, his words, at p. 1432, are apt in considering the dangerous driving

section which is essentially concerned with negligent driving that constitutes a marked departure from the norm: The application of an objective test under s. 202 of the Code , however, may not be made in a vacuum. Events occur within the framework of other events and actions and when deciding on the nature of the questioned conduct surrounding circumstances must be considered. The decision must be made on a consideration of the facts existing at the time and in relation to the accused’s perception of those facts.

Since the test is objective, the accused’s perception of the facts is not to be considered for the purpose of assessing malice or intention on the accused’s part but only to form a basis for a conclusion as to whether or not the accused’s conduct, in view of his perception of those facts, was reasonable. . . . If an accused under s. 202 has an honest and reasonably held belief in the existence of certain facts, it may be a relevant consideration in assessing the reasonableness of his conduct.

For example, a welder, who is engaged to work in a confined space believing on the assurance of the owner of the premises that no combustible or explosive material is stored nearby, should be entitled to have his perception, as to the presence or absence of dangerous materials, before the jury on a charge of manslaughter when his welding torch causes an explosion and a consequent death. [41] In

summary, the mens rea for the offence of dangerous driving should be assessed objectively but in the context of all the events surrounding the incident. […] [Emphasis added] [ 12 ] Despite the seeming clarity provided by the Court in Hundal , the Supreme Court has had to twice revisit and rearticulate the analytical framework for juries and trial judges. The first was R. v. Beatty , 2008 SCC 5 , the second, R. v. Roy , 2012 SCC 26 . [ 13 ] In Beatty , Charron J., for the majority, emphasized how the modified objective test serves to punish only the morally blameworthy.

It requires not just proof of the actus reus of dangerous driving but also the attendant mens rea . She explained how the modified objective test distinguishes criminal from civil liability: [7 ] The modified objective test established by this Court’s jurisprudence remains the appropriate test to determine the requisite mens rea for negligence-based criminal offences. As the label suggests, this test for penal negligence “modifies” the purely objective norm for determining civil negligence. It does so in two important respects.

First, there must be a “marked departure” from the civil norm in the circumstances of the case. A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence, but will not suffice to ground liability for penal negligence. The distinction between a mere departure and a marked departure from the norm is a question of degree.

It is only when the conduct meets the higher threshold that the court may find, on the basis of that conduct alone, a blameworthy state of mind. [8 ] Second, unlike the test for civil negligence which does not concern itself with the mental state of the driver, the modified objective test for penal negligence cannot ignore the actual mental state of the accused . Objective mens rea is based on the premise that a reasonable person in the accused’s position would have been aware of the risks arising from the conduct. The fault lies in the absence of the requisite mental state of care.

Hence, the accused cannot avoid a conviction by simply stating that he or she was not thinking about the manner of driving. However, where the accused raises a reasonable doubt whether a reasonable person in his or her position would have been aware of the risks arising from the conduct, the premise for finding objective fault is no longer sound and there must be an acquittal. The analysis is thus contextualized, and allowances are made for defences such as incapacity and mistake of fact.

This is necessary to ensure compliance with the fundamental principle of criminal justice that the innocent not be punished. [Bold emphasis added] [ 14 ] Charron J. noted confusion in cases about the modified objective test that required a trier of fact to be satisfied the accused’s conduct amounted to a marked departure from the standard of care of a reasonable person in their situation (para. 42).

This led her to restate both the actus reus and mens rea as follows: [43] As we have seen, the requisite mens rea for the offence of dangerous driving was the sole issue before the Court in Hundal , and the test was expressed accordingly. In order to clarify the uncertainties I have mentioned, it may assist to restate the

summary of the test in terms of both the actus reus and the mens rea of the offence . I respectfully disagree with the Chief Justice that the test for the actus reus is defined in terms of a marked departure from the normal manner of driving (para. 67). The actus reus must be defined, rather, by the words of the enactment. Of course, conduct that is found to depart markedly from the norm remains necessary to make out the offence because nothing less will support the conclusion that the accused acted with sufficient blameworthiness, in other words with the requisite mens rea , to warrant conviction .

In addition, it may be useful to keep in mind that while the modified objective test calls for an objective assessment of the accused’s manner of driving, evidence about the accused’s actual state of mind, if any, may also be relevant in determining the presence of sufficient mens rea . I would therefore restate the test reproduced above as follows: (

a) The Actus Reus The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place”. (

b) The Mens Rea

The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied bythe required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, includingevidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care thata reasonable person would observe in the accused’s circumstances.

Moreover, if an explanation is offered by the accused, then in orderto convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and ofthe danger involved in the conduct manifested by the accused. [Emphasis added] [15] Beatty was a case of a momentary lapse of attention with tragic consequences. Mens rea was not made out and the acquittalswere reinstated. [16] Roy, supra, was also a case of a lapse of judgment.

The appellant committed a dangerous act by pulling out onto a highway ata difficult intersection into the path of an oncoming tractor-trailer. A passenger died. The trial judge convicted the appellant ofdangerous driving causing death. [17] Cromwell J., for the unanimous Court, allowed the appeal and entered an acquittal. He stressed that dangerous driving causingdeath is a serious criminal offence.

It consists of two components: the prohibited conduct of operation of a motor vehicle in a dangerousmanner causing death; and, a marked departure from the standard of care that a reasonable person would observe in all the circumstances(para. 1). [18] What differentiates civil and criminal fault is the degree of the departure from the requisite standard of care: [30] A fundamental point in Beatty is that dangerous driving is a serious criminal offence. It is, therefore, critically important toensure that the fault requirement for dangerous driving has been established.

Failing to do so unduly extends the reach of the criminallaw and wrongly brands as criminals those who are not morally blameworthy. The distinction between a mere departure, which maysupport civil liability, and the marked departure required for criminal fault is a matter of degree. The trier of fact must identify how andin what way the departure from the standard goes markedly beyond mere carelessness. [Emphasis in original] [19] As mentioned above, the analytical framework for the offence of criminal negligence causing death or bodily harm developedhand in hand with that of dangerous driving.

I will now turn to the offence of criminal negligence causing death. Criminal negligence [20] Cromwell J. observed in R. v. Roy, dangerous driving causing death is a serious criminal offence. Criminal negligence causingdeath is decidedly more so. Historically, the potential penalty was higher—life imprisonment for criminal negligence as opposed to 14years for dangerous driving causing death[1].

This is also borne out by the fact that if the alleged criminal negligence involved aconveyance, dangerous driving is by statute a lesser and included offence (s. 662(5) of the Criminal Code). [21] The offence is committed where an accused does anything, or omits to do anything it is their duty to do, which causes bodilyharm or death if the conduct was so egregious as to demonstrate wanton or reckless disregard for the lives or safety of others. Theseelements are found in ss. 219 and 220 of the Criminal Code: 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 is liable (

a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment fora term of four years; and (

b) in any other case, to imprisonment for life. [22] Cory J.A., as he then was, set out the history of the offence in R. v. Waite (1986), (ON CA), 15 O.A.C. 215,and the jurisprudential debate whether culpability could rest solely on an objective standard. For allegations of driving misconduct, anobjective test governs, as well as for acts of commission. But, based on R. v. Tutton (1985), (ON CA), 6 O.A.C. 367,where the allegation of criminal negligence is based on omission (a failure to act), a subjective test governs. Cory J.A., in R. v.

Waite,supra, summarized the law as follows: [55] From these cases it is possible to set out the current position in this province. In cases where allegations of criminal negligenceare based upon the manner of driving or some other act of commission by the accused, an objective test should be applied todetermine whether the requisite mens rea has been established. That is to say, the mens rea or requisite intent can be inferred fromthe driving or act of commission itself.

If the driving or the act of commission constitutes a marked and substantial departure from theconduct that could be expected of a reasonable man in the same circumstances, then, in the absence of some explanation, the act itselfmay determine culpability.

[56] If, on the other hand, an omission or failure to act is the basis of the charge of criminal negligence, then an objective testwill not suffice. Rather, a subjective test must be applied to determine whether the accused displayed a wanton and recklessdisregard for the life and safety of others. [Emphasis added] [23] The Supreme Court of Canada heard Tutton and Waite[2] together. Although the full Court sat, only six judges took

part in theCourt’s judgments. Unfortunately, the Court divided evenly on whether a subjective or objective test should govern. [24] Tutton involved parents who deliberately withheld insulin from their young child because of their sincere belief faith had curedhis diabetes. The jury convicted them of manslaughter by criminal negligence. The Ontario Court of Appeal ordered a new trial as thejury were improperly instructed on the Crown’s burden.

Dubin J.A., as he then was, for the Court, accepted that the objective testapplied generally, but if the conduct were acts of omission, a subjective test applied. [25] The Supreme Court unanimously agreed with the Ontario Court of Appeal’s new trial order.

However, the Court divided onthe issue of the exact nature of the test to determine liability for criminal negligence. [26] Wilson J., for herself, Dickson C.J. and La Forest J. insisted the offence of criminal negligence required “advertent” negligence—that is a conscious awareness or wilful blindness to the risk to the lives or safety of others posed by their conduct. In other words, asubjective test.

Her approach is best summed up by the following: [15] … Conduct that displays a wanton or reckless disregard for the lives or safety of others will constitute the actus reus of theoffence under s. 202 [now 219] and be prima facie evidence of the accused’s blameworthy state of mind. It can be assumed that a personfunctioning with normal faculties of awareness and engaging in conduct which represents such a grave departure from the norm is eitheraware of the risk or is wilfully blind to the risk.

Proof of the conduct will, in other words, cast an evidential burden on the accused toexplain why the normal inference of conscious awareness or wilful blindness should not be drawn. The inference will arise in most casesbecause the intent requirement under s. 202 is the minimal intent requirement of awareness or advertence or wilful blindness to theprohibited risk. […] [27] McIntyre J. for himself and L’Heureux-Dubé J. opted for an objective test as described by Cory J.A. in R. v. Waite, supra,without any distinction between acts of omission and those of commission (para. 42).

However, Justice McIntyre cautioned theobjective test must not be applied in a vacuum. All of the circumstances surrounding the conduct must be considered, including theaccused’s perception of those facts: [45] The application of an objective test under s. 202 [219] of the Code, however, may not be made in a vacuum. Events occur withinthe framework of other events and actions and when deciding on the nature of the questioned conduct surrounding circumstances mustbe considered. The decision must be made on a consideration of the facts existing at the time and in relation to the accused’s perceptionof those facts.

Since the test is objective, the accused’s perception of the facts is not to be considered for the purpose of assessing maliceor intention on the accused’s part but only to form a basis for a conclusion as to whether or not the accused’s conduct, in view of hisperception of the facts, was reasonable. This is particularly true where, as here, the accused have raised the defence of mistake of fact. Ifan accused under s. 202 [219] has an honest and reasonably held belief in the existence of certain facts, it may be a relevant considerationin assessing the reasonableness of his conduct.

For example, a welder, who is engaged to work in a confined space believing on theassurance of the owner of the premises that no combustible or explosive material is stored nearby, should be entitled to have hisperception, as to the presence or absence of dangerous materials, before the jury on a charge of manslaughter when his welding torchcauses an explosion and a consequent death. [28] Although Justice McIntyre did not call his description of the test a “modified objective test,” that is the label by which it isknown. [29] Lamer J., as he then was, agreed with McIntyre J., subject to the caveat of a generous allowance for factors particular to anaccused, such as youth, mental development and education. [30] The same members of the Court in R. v.

Waite were also unanimous in result, but demonstrated the same philosophical divide. [31] The Supreme Court of Canada seems to have been content to ignore the stalemate. Eventually, it has become accepted that themodified objective test is the law. [32] In R. v. Anderson, (SCC), [1990] 1 S.C.R. 265, the appellant had a blood alcohol concentration of 200 mg per100 ml of blood. For no apparent reason, he drove through a red light, collided with another vehicle, and killed a passenger. The trialjudge acquitted the appellant of criminal negligence causing death.

The Manitoba Court of Appeal discerned legal error and ordered anew trial. Sopinka J., for the unanimous Court, allowed the appeal and reinstated the acquittal. [33] Sopinka J., acknowledged the existence of the subjective/objective test dichotomy, but declined to resolve it. After reference tothe difficult and uncertain nature of the law of criminal negligence, he commented: [11] The use of the word “negligence” suggests that the impugned conduct must depart from a standard objectively determined.

Onthe other hand, the use of the words “wanton and reckless disregard” suggests that an ingredient of the offence includes a state of mind orsome moral quality to the conduct which attracts the sanctions of the criminal law. The

section makes it clear that the conclusion thatthere is a wanton or reckless disregard is to be drawn from the conduct which falls below the standard. The major disagreement in thecases centers around the manner in which this conclusion is to be drawn. [12] On the one hand, there are the cases that hold that it is to be done on an objective basis. If the conduct is a marked departurefrom the norm, then, based on the standard of an ordinary prudent individual, the accused ought to have known that his actions couldendanger the lives or safety of others. On the other hand, there are cases that apply a subjective standard and require some degree of

advertence to the risk to be proved. This may be done by inferring advertence from the nature of the conduct in the context of thesurrounding circumstances. A refinement on the latter view is that a marked departure constitutes a prima facie case of negligence. Thetrier of fact may but is not obliged to infer the necessary mental element from the conduct which is found to depart substantially from thenorm. [34] However, the dichotomy did not need to be resolved because the trial judge found the appellant’s conduct did not amount to awanton or reckless disregard for the lives or safety of others. Sopinka J. explained: [17] The conduct relied on in this case is (

a) the combination of drinking and driving, and (

b) the breach of a traffic light regulation.Clearly the trial judge considered both. He concluded that the conduct was not a marked departure from the norm. That being the case,a conclusion that the appellant had a wanton or reckless disregard for the lives and safety of others could not be drawn on eithera subjective or objective basis. [Emphasis added] [35] The Court has since confirmed that objective assessment of criminal conduct for unlawful act manslaughter and a failure toprovide necessities survives constitutional challenge (see: R. v. Creighton, (SCC), [1993] 3 S.C.R. 3; R. v.

Naglik, (SCC), [1993] 3 S.C.R. 122). However, the Court declined to deal with the offence of criminal negligence. [36] Although perhaps it could be said it was not directly in issue, the Supreme Court in R. v. J.F., 2008 SCC 60, appeared to haveendorsed the modified objective test for all allegations of criminal negligence. A jury acquitted the appellant of manslaughter for hisfailure to provide necessaries of life, but convicted him of manslaughter by criminal negligence for the very same omission.

As Fish J.,for the majority explained, the verdicts were not only inconsistent, but incomprehensible because criminal negligence requires a higherfault element—a marked and substantial departure from the norm of a reasonable person versus simply a marked departure for the failureto provide necessities of life (para. 11). [37] Justice Fish explained the different fault elements for the two offences as follows, both to be assessed from an objective pointof view: [7] The fault element required for conviction at trial was essentially common to both counts of manslaughter.

On count 1, therequisite fault element was that of the underlying offence of criminal negligence; on count 2, the requisite fault element was that offailure to provide the necessaries of life. Neither criminal negligence nor failure to provide the necessaries of life requires proof ofintention or actual foresight of a prohibited consequence.

Under both counts, the jury was required to determine not what the respondentknew 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 hisfoster child represented “a marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectivelyforeseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanentendangerment to the health, of the child”: R. v.

Naglik, (SCC), [1993] 3 S.C.R. 122, at p. 143 (emphasis added).

It willlater become apparent why I have emphasized the word “risk” in this description of the offence by the Chief Justice, speaking for theCourt on this point. [9] On the count alleging criminal negligence, the Crown was bound to show that the respondent’s very same omission representeda marked and substantial departure (as opposed to a marked departure) from the conduct of a reasonably prudent parent incircumstances where the accused either recognized and ran an obvious and serious risk to the life of his child or, alternatively, gave nothought to that risk: R. v.

Tutton, (SCC), [1989] 1 S.C.R. 1392, at pp. 1430-31; R. v. Sharp (1984), (ON CA), 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 appellatedecisions since Naglik and Tutton, mainly but not exclusively in the context of driving offences: See, for example, R. v. Willock (2006), (ON CA), 210 C.C.C. (3d) 60 (Ont. C.A.); R. v. L. (J.) (2006), (ON CA), 204 C.C.C. (3d) 324(Ont. C.A.); R. v. Palin (1999), (QC CA), 41 M.V.R. (3d) 11, 135 C.C.C. (3d) 119 (Que. C.A.); R. v.

Fortier (1998), (QC CA), 41 M.V.R. (3d) 221, 127 C.C.C. (3d) 217 (Que. C.A.); R. v. Brown (2000), (ON CA),134 O.A.C. 151; R. v. Baker (2006), (ON CA), 209 C.C.C. (3d) 508 (Ont. C.A.); R. v. E. (A.) (2000), (ON CA), 146 C.C.C. (3d) 449 (Ont. C.A.). This case does not turn on the nature or extent of the difference between the twostandards. [38] Also relevant to the appropriate analytical framework is R. v. Javanmardi, 2019 SCC 54. The appellant in that case was anaturopath. She had extensive training and experience. One of her treatments involved intravenous injection of nutrients.

Shepurchased nutrients from a reputable supplier in Ontario. [39] Although intravenous administration of nutrients by a naturopath in Quebec was illegal, the appellant had almost twenty years’experience doing so. One day she administered intravenous nutrient injections to three patients. Unbeknownst to her, one of the vialsshe had used to prepare the nutrient injections was contaminated. Two of the three patients had no adverse reaction.

The third died ofendotoxic shock. [40] The police charged the appellant with manslaughter by criminal negligence and manslaughter by means of her unlawful act ofintravenous injection. The trial judge found: the appellant was qualified to perform intravenous injections; the contents were benign butpotentially helpful; the appellant had observed the required protocols; and, she had taken sufficient precaution at every stage of theprocess. [41] The trial judge concluded the appellant’s conduct did not show a marked departure from the standard of care a reasonableperson in her circumstances would have exercised.

She was not satisfied a reasonable person would have been aware of any risk inherentin the appellant’s conduct and therefore concluded the Crown had not proved beyond a reasonable doubt that the appellant’s conduct

showed wanton or reckless disregard for the victim’s life or safety. [42] The trial judge also acquitted the appellant of unlawful act manslaughter because she found a reasonable person in theappellant’s circumstances would not have foreseen administration of a benign solution with proper procedure would create a risk of harm—hence the act was not objectively dangerous. [43] The Quebec Court of Appeal reversed.

It ordered a new trial on the criminal negligence charge on the basis that the trial judgehad misapplied the “reasonable person” standard by referring to the appellant’s training and experience with intravenous injections. TheAppeal Court also entered a conviction on the charge of unlawful act manslaughter on the basis that intravenous injection wasobjectively dangerous. [44] Abella J., for the majority, reinstated the acquittals. It is only necessary to discuss her reasons in relation to criminal negligencecausing death.

After quoting the words of the relevant sections, she wrote: [19] The actus reus of criminal negligence causing death requires that the accused undertook

an act – or omitted to do anything that itwas 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 otherpersons”. Neither “wanton” nor “reckless” is defined in the Criminal Code, but in R. v. J.F., 2008 SCC 60 , [2008] 3 S.C.R.215, this Court confirmed that the offence of criminal negligence causing death imposes a modified objective standard of fault – theobjective “reasonable person” standard (paras. 7-9; see also R. v.

Tutton, (SCC), [1989] 1 S.C.R. 1392, at pp. 1429-31;R. v. Morrisey, 2000 SCC 39 , [2000] 2 S.C.R. 90, at para. 19; R. v. Beatty, 2008 SCC 5 , [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 bymeasuring the degree to which the accused’s conduct departed from that of a reasonable person in the circumstances. For somenegligence-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 SCC 26 , [2012] 2 S.C.R. 60, at para. 30; R. v. L. (J.) (2006), (ON CA), 204C.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 criminalnegligence 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), (ON CA), 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 “areasonable person would have foreseen the risk and taken steps to avoid it if possible” (see Roy, at para. 36; Stewart, at p. 248). Thedistinction between them has been described as a matter of degree (see R. v. Fontaine, 2017 QCCA 1730, 41 C.R. (7th) 330, at para. 27;R. v. Blostein, 2014 MBCA 39, 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 theCode but they do not, and cannot, indicate any objective and fixed order of magnitude that would have prescriptive value from one caseto another. As with the assessment of conduct in cases of criminal negligence, the assessment of fault by the trier of fact is entirelycontextual. [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 casedid not “turn on the nature or extent of the difference between the two standards” (paras. 10-11).

In this appeal, as well, the differences inetymology are not dispositive and need not be resolved. In any event, the parties argued on the basis that the proper threshold forcriminal negligence causing death is a “marked and substantial” departure, and that is the basis on which these reasons approach theissue. A conviction for criminal negligence causing death therefore requires the Crown to prove that the accused undertook anact, 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 substantialdeparture from the conduct of a reasonable person in the accused’s circumstances (the fault element). [Emphasis added] [45] Abella J. found no miscue by the trial judge’s reference to the appellant’s training and experience at the time she performed theallegedly negligent act or omission.

This is because a court must take into account the activity in question and the standard of careassociated with that activity: [38] Creighton’s activity-sensitive approach to the modified objective standard has been applied in a variety of contexts, including incases involving driving, hunting and parenting (Beatty, at para. 40; R. v. Gendreau, 2015 QCCA 1910, at para. 30 ; J.F., atparas. 8-9). These decisions confirm that while the standard is not determined by the accused’s personal characteristics, it is informed bythe activity.

In this case, the activity is administering an intravenous injection, and the standard to be applied is that of the reasonablyprudent naturopath in the circumstances. [46] A common framework for analysis of criminal negligence allegations is to require the Crown to prove beyond a reasonabledoubt the actus reus of the offence and then consider the fault element—the mens rea (see for example: R. v. Tayfel, 2009 MBCA 124;R. v. Harshbarger, 2010 NLTD(G) 152; R. v. Wood, 2017 ONSC 3239; and, R. v. Doering, 2019 ONSC 6360). This approach definesthe actus reus as: 1.

The act or an omission to do something that it was their duty to do; 2. The act or omission demonstrated a wanton or reckless disregard for the lives or safety of other persons; and, 3. The act or omission caused death or bodily harm to someone.

[47] The mens rea or fault element requires proof that the accused’s conduct was a marked and substantial departure from therequisite standard of care. [48] This approach enjoys ample jurisprudential support from the judgment of Charron J. in R. v. Beatty. Although Beatty was acase about dangerous driving, the difference between dangerous driving and criminal negligence is only one of degree—a markeddeparture is required for the former, while a marked and substantial departure from that of a reasonable and prudent driver for the latter. For convenience, I will repeat what she wrote about how to approach the elements of the offence of dangerous driving: (

a) The Actus Reus The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section,driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use ofthe place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to beat that place”. (

b) The Mens Rea The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied bythe required mens rea.

In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, includingevidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care thata reasonable person would observe in the accused’s circumstances. […] [49] As noted above, many courts have endorsed this framework for criminal negligence: the actus reus is found in the words of thesection and the mens rea is assessed on whether the conduct amounted to a marked and substantial departure from the normal standard ofcare. In R. v.

Doering, supra, Pomerance J. summarized it this way: [91] Criminal negligence is a more serious offence than failing to provide necessaries of life. It is at the “high end of a continuum ofmoral blameworthiness” and “punishes, not a state of mind, but the conduct of the accused... Thus the physical action of the ... [accused]... is as critical to the determination of wanton or reckless conduct as the mental element.” See R. v. L. (J.), (ON CA),[2006] O.J. No. 131 (C.A.), at paras. 14 and 18. The actus reus of the offence of criminal negligence is found in the language of theprovision.

It requires proof that the accused did something or failed to do something that was his legal duty to do thatdemonstrates a wanton and reckless disregard for the lives and safety of others: see R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, atpara. 43. The mens rea requires proof that the accused’s conduct was a marked and substantial departure from the standard ofcare that a reasonably prudent person would observe in the circumstances.

The circumstances are those in which the accusedeither recognized and ran an obvious and serious risk to the life or safety of the victim or, alternatively, gave no thought to therisk. [Emphasis added] [50] This was the same approach laid out by Hamilton J.A., writing for the unanimous Court, in R. v. Tayfel: [80] As we know from Beatty, the actus reus of negligence-based offences is defined solely by the words of the applicable

section ofthe Code. For criminal negligence it is s. 219(1), which I repeat for ease of reference: 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. [81] Thus, to prove the actus reus of criminal negligence the Crown had to prove beyond a reasonable doubt that: 1) the accused wasunder a legal duty to do something; 2) he failed to fulfil that duty by his omissions, and 3) in failing to fulfil the duty he showed a wantonor reckless disregard for the lives or safety of other persons. [51] I respectfully agree with Hamilton J.A. where she reasons that at this stage of the analysis, the mens rea or fault element(whether the conduct was a marked and substantial departure) is not relevant (para. 82). [52] I say this despite the suggestion by Abella J. in R. v.

Javanmardi, supra, that the actus reus only requires an accused commit anact—or omit to do anything it was their legal duty to do—and the act or omission caused someone’s death (para. 19). This is because thesuggestion by Abella J., with all due respect, is obiter, and contrary to the analytical framework for penal negligence offences establishedby the Supreme Court of Canada in its considered analysis in R. v. Beatty, supra, and consistently approved since (see: R. v. Roy, supraand R. v.

J.F., supra). [53] In Beatty, Charron J., writing for the majority of five, made clear there is no point in dealing with the mens rea or fault elementof a marked departure of a reasonably prudent driver when dealing with the actus reus: [45] I deal firstly with the actus reus. The offence is defined by the words of the legislative provision, not by the common lawstandard for civil negligence. In order to determine the actus reus, the conduct must therefore be measured as against the wording of s.249. Although the offence is negligence-based, this is an important distinction.

As we have seen, conduct that constitutes dangerousoperation of a motor vehicle as defined under s. 249 will necessarily fall below the standard expected of a reasonably prudent driver. Theconverse however is not necessarily true – not all negligent driving will constitute dangerous operation of a motor vehicle. If the court issatisfied beyond a reasonable doubt that the manner of driving was dangerous to the public within the meaning of s. 249, the actus reus

of the offence has been made out.

Nothing is gained by adding to the words of s. 249 at this stage of the analysis. [54] McLachlin C.J., for herself, Binnie and LeBel JJ., agreed in result, but took the view that the requirement of a “markeddeparture” from the norm applies to both the actus reus and mens rea of the offence (paras. 58-61). [55] Fish J., also agreed with the result but sided with Charron J. that the actus reus consists of the elements of the offence set out inthe Code and the mens rea can be inferred from that conduct where it represents a marked departure from the norm (paras. 84-89). [56] In other words, by a clear majority (6-3), the actus reus is found in the words of the penal negligence offence and the mens reacan be inferred if the accused’s conduct amounted to a marked departure from the norm. [57] Furthermore, in 2008, the Court in R. v.

J.F., supra, was unanimous that the mens rea or fault element for criminal negligencerequires the trier of fact to be satisfied beyond a reasonable doubt the accused’s conduct or omission amounted to a marked andsubstantial departure from the norm. [58] Recall that the issue in R. v. J.F. was whether the jury verdicts were inconsistent where there was an acquittal for not providingnecessities of life but a conviction for criminal negligence causing death. [59] Deschamps J. dissented. She was not satisfied the verdicts were inconsistent.

Deschamps J. described the same approach tothe actus reus and mens rea as found in R. v. Beatty: [66] The actus reus of failing to provide the necessaries of life will be established if it is proved (1) that the accused was under a legalduty to provide the necessaries of life to the person in question pursuant to s. 215(1)(a); (2) that, from an objective standpoint, he or shefailed to perform the duty; and (3) that, again from an objective standpoint, this failure endangered the life of the person to whom theduty was owed, or caused or was likely to cause the health of that person to be endangered permanently.

Following Charron J.’sreasoning in R. v. Beatty, [2008] 1 S.C.R. 49, 2008 SCC 5, the marked departure standard is not applied at this point, since“[n]othing is gained by adding to the words of [the statute] at this stage of the analysis” (para. 45). [67] The mens rea of failing to provide the necessaries of life will be established if it is proved that the conduct of the accusedrepresented a marked departure from the conduct of a reasonable parent, foster parent, guardian or family head in the samecircumstances.

The conduct must represent a marked departure because, as Lamer C.J. indicated: “Unlike negligence under civil law,which is concerned with the apportionment of loss, penal negligence is concerned with the punishment of moral blameworthiness” (R. v.Gosset, (SCC), [1993] 3 S.C.R. 76, at p. 93). As Charron J. stated: “The degree of negligence is the determinativequestion because criminal fault must be based on conduct that merits punishment” (Beatty, at para. 35). Thus, “penal negligence punishesa marked departure from an objectively reasonable standard of care” (R. v.

Naglik, (SCC), [1993] 3 S.C.R. 122, at p. 142(emphasis in original)). [68] Turning to the offence of criminal negligence, the actus reus will be established if it is proved (1) that the accused wasunder a legal duty to do something; (2) that, from an objective standpoint, he or she failed to perform the duty; and (3) that infailing to perform the duty, he or she showed, again from an objective standpoint, wanton or reckless disregard for the lives orsafety of other persons. Proof of the mens rea will flow from a finding that the conduct of the accused was wanton or reckless.

Wantonor reckless behaviour has been equated with a marked and substantial departure from the norm (H. Parent, Traité de droit criminel (2nded. 2007), vol. 2, at p. 299), which necessarily includes behaviour that constitutes a marked departure. [Emphasis added] [60] Fish J. for the majority of six, voiced no disagreement with Justice Deschamps’ articulation of these principles.

His analysisfocussed instead on the uncontroverted fact that the same omission—the failure by the appellant to protect his foster child from harm—was the omission alleged for both manslaughter by a failure to provide necessities of life and manslaughter by criminal negligence. [61] The fault element for the former required the Crown to establish the failure to protect amounted to a marked departure, whilefor the latter, it required the Crown to establish it amounted to a marked and substantial departure from the norm.

Hence, the faultelement or mens rea is assessed by reference to the degree of departure from the conduct expected of a reasonable person in thecircumstances. The following comments by Fish J. illustrate: [7] The fault element required for conviction at trial was essentially common to both counts of manslaughter. On count 1, therequisite fault element was that of the underlying offence of criminal negligence; on count 2, the requisite fault element was that offailure to provide the necessaries of life.

Neither criminal negligence nor failure to provide the necessaries of life requires proof ofintention or actual foresight of a prohibited consequence.

Under both counts, the jury was required to determine not what the respondentknew 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 hisfoster child represented “a marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectivelyforeseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanentendangerment to the health, of the child”: R. v.

Naglik, (SCC), [1993] 3 S.C.R. 122, at p. 143 (emphasis added).

It willlater become apparent why I have emphasized the word “risk” in this description of the offence by the Chief Justice, speaking for theCourt on this point. [9] On the count alleging criminal negligence, the Crown was bound to show that the respondent’s very same omission representeda marked and substantial departure (as opposed to a marked departure) from the conduct of a reasonably prudent parent incircumstances where the accused either recognized and ran an obvious and serious risk to the life of his child or, alternatively, gave nothought to that risk: R. v.

Tutton, (SCC), [1989] 1 S.C.R. 1392, at pp. 1430-31; R. v. Sharp (1984), (ON CA), 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 appellatedecisions since Naglik and Tutton, mainly but not exclusively in the context of driving offences: See, for example, R. v. Willock (2006), (ON CA), 210 C.C.C. (3d) 60 (Ont. C.A.); R. v. L. (J.) (2006), (ON CA), 204 C.C.C. (3d) 324(Ont. C.A.); R. v. Palin (1999), (QC CA), 41 M.V.R. (3d) 11, 135 C.C.C. (3d) 119 (Que. C.A.); R. v. Fortier (1998), (QC CA), 41 M.V.R. (3d) 221, 127 C.C.C. (3d) 217 (Que. C.A.); R. v. Brown (2000), (ON CA),134 O.A.C. 151; R. v.

Baker (2006), (ON CA), 209 C.C.C. (3d) 508 (Ont. C.A.); R. v. E. (A.) (2000), (ON CA), 146 C.C.C. (3d) 449 (Ont. C.A.). This case does not turn on the nature or extent of the difference between the twostandards. [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 plainlyinconsistent because both counts alleged the identical actus reus as well.

It is undisputed, however, that criminal negligence, unlikefailure 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, butincomprehensible as well. … [17] As I have already mentioned, the verdicts at trial signify that a lesser degree of fault was not established, while a greater degreeof fault was proven beyond a reasonable doubt.

Even if the jury treated the fault requirements as equivalent, the verdicts would remaininconsistent because, as we have seen, the actus reus for both offences was, on the facts of this case, identical. In either case, therespondent’s conviction cannot stand. [Emphasis added] [62] With this background, I turn to the issue of the appropriate analytical framework for this case. ANALYTICAL FRAMEWORK FOR THIS CASE [63] No one disputed the appellants owed a duty of care to Mr. Rogers. The existence of that duty is a pure question of law.

It iswell accepted the duty can be imposed by statute or by the common law (Regina v. Coyne, (NB CA), [1958] N.B.J. No.11 (N.B.S.C.A.D.) (QL), 124 C.C.C. 176).

Hence, the existence of a duty was not a question for the jury. [64] What was for the jury to decide was whether the Crown had established beyond a reasonable doubt: the acts or omissions ofthe accused showed a wanton or reckless disregard for the life or safety of Corey Rogers; those acts or omissions caused his death; and,the acts or omissions of the accused were a marked and substantial departure from the standard of care of a reasonable and prudentBooking Officer in their circumstances. I will consider these in turn.

Wanton or reckless disregard [65] Various terms have been used to describe what is meant by “wanton or reckless disregard”. Cory J.A., in R. v. Waite, supra,whose decision was adopted as a correct statement of the law[3] by three members of the Supreme Court, described the term: [62] … The word “wanton” means “heedlessly”. “Wanton” coupled as it is with the word “reckless”, must mean heedless of theconsequences or without regard for the consequences. If this is correct, then it is immaterial whether an accused subjectively consideredthe risks involved in his conduct as the

section itself may render culpable

an act done which shows a wanton or reckless disregard ofconsequences. … [66] The Ontario Court of Appeal in R. v. L.(J.) (2006), (ON CA), 204 C.C.C. (3d) 324 referred, with approval, tothe comments of Hill J. in R. v. Menezes, (ON SC), [2002] O.J. No. 551 (QL), where he wrote: [72] Criminal negligence amounts to a wanton and reckless disregard for the lives and safety of others: Criminal Code, s. 219(1). Thisis a higher degree of moral blameworthiness than dangerous driving: Anderson v. The Queen (1990), (SCC), 53 C.C.C.(3d) 481 (S.C.C.) at 486 per Sopinka J.; Regina v.

Fortier (1998), (QC CA), 127 C.C.C. (3d) 217 (Que. C.A.) at 223per LeBel J.A. (as he then was). This is a marked and substantial departure in all of the circumstances from the standard of care of areasonable person: Waite v. The Queen (1989), (SCC), 48 C.C.C. (3d) 1 (S.C.C.) at 5 per McIntyre J.; Regina v. Barron(1985), (ON CA), 48 C.R. (3d) 334 (Ont. C.A.) at 340 per Goodman J.A. The term wanton means “heedlessly”(Regina v. Waite (1996), (ON CA), 28 C.C.C. (3d) 326 (Ont. C.A.) at 341 per Cory J.A. (as he then was)) or“ungoverned” and “undisciplined” (as approved in Regina v.

Sharp (1984), (ON CA), 12 C.C.C. (3d) 428 (Ont.C.A.) at 430 per Morden J.A.)) or an “unrestrained disregard for consequences” (Regina v. Pinske (1988), (BCCA), 6 M.V.R. (2d) 19 (B.C.C.A.) at 33 per Craig J.A. (affirmed on a different basis (SCC), [1989] 2 S.C.R. 979 at979 per Lamer J. (as he then was)).

The word “reckless” means “heedless of consequences, headlong, irresponsible”: Regina v.Sharp, supra at 30. [Emphasis added] Standard of care [67] For any trier of fact to wrestle with the issue of whether the acts or omissions of an accused amounted to a marked andsubstantial departure from the requisite standard of care requires awareness of what that standard is and how it is established. [68] Where criminal negligence is alleged to have been committed by a parent or a driver, expert evidence about the requisite

standard of care is unnecessary since jurors do not need to be informed about what constitutes reasonable prudent conduct for a driver ora parent. Those are nontechnical matters of everyday common experience (see, for example: R. v. Clark, 2020 ABCA 356). [69] In civil litigation that alleges negligent conduct by a member of a trade or profession, the general rule is evidence fromsomeone with expertise in that occupation or undertaking is usually necessary in order for the trier of fact to determine the parameters ofthe standard of care (see for example: Krawchuk v.

Scherbak, 2011 ONCA 352 at para. 124 et seq (a real estate agent), leave to appealrefused [2011] S.C.C.A. No. 319; Roy v. British Columbia (Attorney General), 2005 BCCA 88 (police officers); Camaso Estate v.Saanich (District), 2013 BCCA 6 (police officers), leave to appeal dismissed [2013] S.C.C.A. No. 92; Bergen v. Guliker, 2015 BCCA283 (police officers); 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656 (police officers). [70] The same principles seem to apply where the charge is criminal negligence causing death or bodily harm (see for example: R.v. Tayfel, supra (a pilot); R. v.

Wood, supra (an engineer); R. v. Harshbarger, supra (a hunter); R. v. Swanney, 2006 BCSC 1766 (adoctor); R. v. Hoyeck, 2019 NSSC 7 (a mechanic)). [71] In this case, the Crown did not tender expert evidence about the standard of care of a reasonable and prudent Booking Officer. That omission forms no part of the appellants’ complaint.

I will say nothing more about it—particularly as there was certainly evidencethat could have permitted the jury to draw inferences about what the standard of care was and hence whether the appellants’ acts oromissions amounted to a marked and substantial departure from it. [72] In civil cases, the failure to identify the appropriate standard of care constitutes legal error (see Krawchuk v. Scherbak, supra atpara. 123; Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5 at para. 80).

In criminal cases with the life and liberty of the accused atstake, it cannot be any less so. [73] How then is a trier of fact to determine what the content of the standard of care is and whether it was breached? These arequintessentially questions of fact. They can be determined, as described above, by credible expert opinion evidence or other evidencethat permits the trier to draw the necessary inferences. That evidence may include what others do or should do in similar circumstancesand any policies or directives relevant to the conduct. [74] In Hill v.

Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, the Supreme Court of Canada concluded that apolice officer could be found civilly liable for the tort of negligent investigation. The Court approved the standard of care articulated attrial and on appeal as that of a reasonable police officer in like circumstances (para. 67). McLachlin C.J., for the majority, referred to therole of professional or statutory standards: [70] Third, the common law factors relevant to determining the standard of care confirm the reasonable officer standard.

Thesefactors include: the likelihood of known or foreseeable harm, the gravity of harm, the burden or cost which would be incurred to preventthe injury, external indicators of reasonable conduct (including professional standards) and statutory standards. (See Ryan v. Victoria(City), (SCC), [1999] 1 S.C.R. 201; R. v. Saskatchewan Wheat Pool, (SCC), [1983] 1 S.C.R. 205, at p.227.) These factors suggest a standard of reasonableness, not something less onerous. There is a significant likelihood that police officersmay cause harm to suspects if they investigate negligently.

The gravity of the potential harm caused is serious. Suspects may be arrestedor imprisoned, their livelihoods affected and their reputations irreparably damaged. The cost of preventing the injury, in comparison, isnot undue. Police meet a standard of reasonableness by merely doing what a reasonable police officer would do in the samecircumstances -- by living up to accepted standards of professional conduct to the extent that it is reasonable to expect in givencircumstances. This seems neither unduly onerous nor overly costly.

It must be supposed that professional standards requirepolice to act professionally and carefully, not just to avoid gross negligence. The statutory standards imposed by the PoliceServices Act, R.S.O. 1990, c. P.15, although not definitive of the standard of care, are instructive (s. 1). [Emphasis added] [75] In Roy v. British Columbia (Attorney General), supra, the Court reversed a trial judgment that had found police negligentlycaused the death of an intoxicated prisoner.

The trial judge had focussed on the omission by the officers to seek medical assessment forthe deceased, contrary to RCMP operational policy which mandated an assessment for anyone of “questionable consciousness”. SouthinJ.A., for the majority, allowed the appeal and dismissed the action. As to the role of the operational policy, she observed that it is not tobe read as if it were a statute: [36] I take the following propositions to be established: 1.

A peace officer owes a duty to his prisoner to take reasonable care for the prisoner’s safety but he is not an insurer. 2. “[A]n error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that would not have beenmade by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself out ashaving, and acting with ordinary care, then it is negligent. If, on the other hand, it is an error that a man, acting with ordinary care, mighthave made, then it is not negligence.” [Whitehouse v.

Jordan, [1981] 1 All E.R. 267 (C.A.) at 281, adopted by Craig J.A. in Smith v.British Columbia (Attorney General) (1988), (BC CA), 30 B.C.L.R. (2d) 356 (B.C.C.A.) at 363.] 3. The policy of a police force is an important factor in determining the standard of care a peace officer must observe, but it isnot determinative, nor is it to be treated as if it were a statute imposing civil obligations. 4.

Where, as here, at issue is the standard of a competent member of a trade or profession (and the occupation of peace officer fallswithin that rubric), evidence of those carrying on that occupation is necessary unless, in the words which McPherson C.J.M., in Andersonv. Chasney, (MB CA), [1949] 2 W.W.R. 337 (Man. C.A.) at 341, adopted from the American case of Mehigan v.Sheeham, 51 Atlantic Rep. 2nd series, 632, the matter is one of “non-technical matters or those of which an ordinary person may beexpected to have knowledge.” [Emphasis added]

[76] The role of employment policies and directives and how they inform the content of the standard of care was again addressedten years later in Bergen v. Guliker, supra, where D.M. Smith J.A., for the Court wrote: [109] Translating the general standard into particular obligations imposed on a defendant in a given case (i.e., the content of thestandard) and the determination of whether the defendant has met those obligations (i.e., whether there is a breach), are questions of factthat can only be interfered with on appeal if found to be based on palpable and overriding error (see: Housen v.

Nikolaisen, 2002 SCC 33at para. 10; ter Neuzen v. Korn, (SCC), [1995] 3 S.C.R. 674 at para. 55; Krawchuk at para. 125; and Meady at para. 34). [110] External indicators of reasonable conduct, including professional standards and internal policy, may inform the content of thestandard and whether it was breached (Hill at para. 70; Ryan v. Victoria (City), (SCC), [1999] 1 S.C.R. 201 at para. 29;Burbank at paras. 91-92; Krawchuk at para. 125). However, policies and statutory standards, while instructive, are not definitive of thecontent of the standard of care (Hill at para. 70). In Roy, this Court noted: [36] ...

The policy of a police force is an important factor in determining the standard of care a peace officer must observe, but it is notdeterminative, nor is it to be treated as if it were a statute imposing civil obligations. ... [111] Similarly, while compliance with policy may be an important factor to consider in determining whether the standard of care hasbeen met, failure to follow policy does not automatically compel the conclusion that the standard of care was breached. As this Courtnoted in D.H. (Guardian ad litem of) v.

British Columbia, 2008 BCCA 222: [83] The respondents and the trial judge put considerable weight upon the policies of the B.C. Corrections Branch as demonstrating afailure to meet the requisite standard of care. The primary obligation of the probation officers is set out in the Correction Act. The policydirectives function as a guide and are of assistance in determining the standard of a reasonable probation officer.

Failure to comply withthe policy raises questions as to the quality of judgment brought to bear on the issue by the probation officer but does not, by itself,compel a conclusion that the probation officers failed to meet the standard of care. Here, the policy required information to be given tothe at risk person “limited to that information required to enhance safety”.

The policy goes on to say that in most cases the informationwould identify the offender by name, general residential area, criminal history, modus operandi and other information needed to identifywhy there is a risk, but it is couched in terms that leave the degree of detail in any particular case to the probation officer. [Original emphasis] Marked and substantial departure [77] Criminal negligence is nonetheless negligence—a breach of the appropriate standard of care.

Constitutional norms dictatecriminal negligence be differentiated from civil negligence by requiring morally blameworthy behaviour—that is, behaviour that was amarked and substantial departure from the standard of care a reasonable person would have observed in all of the circumstances. [78] The second thing that distinguishes penal from civil negligence is for the latter, liability is determined on a purely objectivebasis.

The former operates under a modified objective test. [79] The modified objective test requires the court to be alive to the possibility that the accused’s honestly held and reasonableperception of the circumstances are such that a reasonable person might not have appreciated the risk or could and would have donesomething to avoid the danger (see: Beatty, supra, at paras. 37-38; R. v. Tutton, supra, at para. 45). [80] That is, the state of mind of the accused is not, as in civil cases, irrelevant.

It can lead to acquittal if it creates a doubt that areasonably prudent person would have appreciated the risks with the act or failure to act (see, for example: R. v. Beatty, supra at para.43; R. v. Doering, supra at para. 93; R. v. Ibrahim, 2019 ONCA 631 at paras. 33-34). Causation [81] The jury must also understand that the acts or omissions of the accused amounted to a significant contributing cause of thevictim’s death (R. v. Nette, 2001 SCC 78; R. v. Maybin, 2012 SCC 24).

Summary [82] To summarize the appropriate analytical framework, the Crown must establish beyond a reasonable doubt: 1. The acts or omissions by the appellants showed a wanton or reckless disregard for the life or safety of Corey Rogers; 2. The acts or omissions by the appellants caused Corey Rogers’ death; and, 3.

The acts or omissions that caused Corey Rogers’ death were a marked and substantial departure from the standard of care ofa reasonably prudent Booking Officer in the appellants’ circumstances, including what they knew or ought to have known. [83] I have not overlooked that for the purpose of affixing criminal liability, the acts or omissions of each appellant must beassessed separately. In other words, if one of the appellants did or omitted to do something that it was their duty to do, whichdemonstrated a wanton or reckless disregard for Mr.

Rogers’ death and which caused his death with the requisite fault element of amarked and substantial departure from the conduct of a reasonable Booking Officer in all of the circumstances, did the other appellant door omit to do anything that made them a party to that offence? [84] Party liability was never raised at trial, nor on appeal. The issue certainly triggers intricate questions of the actus reus andmens rea for accessorial liability (see: R. v. R.(M.), 2011 ONCA 190). Since the appellants and the Crown chose to ignore the issue, Iwill also.

[ 85 ] It is to the facts I now turn. THE FACTS [ 86 ] By way of overview, it was the Crown’s theory that because of Mr. Rogers’ intoxication, the appellants failed in their duty when they: admitted him into the Police Prisoner Care Facility (PCF) without a medical examination; left a spit hood on him; and, failed to conduct mandated checks on his well-being. [ 87 ] The appellants’ position at trial was that: they relied on their own previous experience with Mr. Rogers and on reliable information received from the arresting officers that Mr.

Rogers was playing possum and simply refusing to cooperate; they had no awareness that the spit hood posed a danger or risk to Mr. Rogers; and, the cell checks they did were how they and every other Booking Officer did them, a fact well-known to police management. [ 88 ] The facts, or more accurately, the relevant evidence at trial, were mostly uncontested. June 15 started out a happy day for Corey Rogers. His spouse had given birth to their first child at the IWK Hospital in Halifax on June 14. He left the Hospital around 3:00 p.m. on June 15 to do errands. [ 89 ] When Mr.

Rogers returned to the IWK later that evening, he was intoxicated. Security staff would not let him in the hospital to visit his spouse. He threatened staff. The Halifax Regional Police were called. [ 90 ] In the meantime, Mr. Rogers’ spouse came downstairs and took him outside to have a cigarette. She described him as intoxicated, but said she had seen him a lot worse. When the police showed up, Mr. Rogers downed the remainder of his liquor—a half- pint of Fireball whiskey and threw the bottle away. Mr. Rogers knew he was going to be arrested, so he gave his cash to his spouse.

In return, she gave the police a cigarette and lighter for Mr. Rogers to have the next day. [ 91 ] Cst. Ryan Morris was the first officer to arrive. As he started to approach Mr. Rogers, he saw him consume the half-pint of Fireball whiskey, in what he described as one gulp, and throw the bottle into the bushes. The usual signs of impairment were obvious: slurred speech, swaying and difficulty in walking. Csts. Donna Paris and Justin Murphy arrived in a separate police car. [ 92 ] The decision was soon made to arrest Mr. Rogers for public intoxication and take him to the PCF for the night.

The officers permitted Mr. Rogers to smoke another cigarette before the arrest and transport to cells. [ 93 ] When Cst. Murphy arrested Mr. Rogers, he became upset. Mr. Rogers exhibited passive resistance—that is, although it was clear he understood what he was being asked to do, he would not cooperate. On the way to the PCF in the back of the police car, Mr. Rogers became aggressive. He cursed and swore at Cst. Murphy and repeatedly threatened him. Mr. Rogers banged his head against the silent-partner (a Plexiglas barrier) and spat at Cst.

Murphy. [ 94 ] On arrival at the PCF, they had to wait for approximately five minutes while the Booking Officers dealt with a youth. Cst. Murphy tried to have a conversation with Mr. Rogers—he had to stop spitting or a spit hood would be applied. [ 95 ] When they opened the police car door, Mr. Rogers continued to spit and threaten the officers. Cst. Murphy went inside and retrieved a spit hood from the supplies in the PCF. None of the officers had one in their cars. Cst. Morris had never put one on a prisoner. [ 96 ] Cst. Paris put the spit hood on Mr. Rogers.

The officers described slightly different levels of resistance by Mr. Rogers. Cst. Paris asked him if he was going to get out. He replied “No, I don’t want to”. Cst. Murphy testified that Mr. Rogers hooked his feet underneath the silent-partner and refused to get out. They all agreed they had to pull him out of the car. [ 97 ] Once out, Mr. Rogers dropped to his knees and refused to walk into the PCF. Csts. Morris, Paris and Murphy carried him inside. The appellant Gardner had watched the events and held the door to the PCF open for the Constables. They placed Mr. Rogers on the floor.

The admission to the PCF [ 98 ] Documents and other evidence made it clear that Mr. Rogers had been a frequent detainee at the PCF for public intoxication as well as other offences. [ 99 ] After the arresting officers carried Mr. Rogers into the PCF, virtually all of the events thereafter were captured on CCTV footage. Mr. Rogers was placed on the floor in the booking area. The officers searched him and removed his laces, belt and personal effects. Mr. Rogers mumbled he did not want to be there—to the officers, Rogers had decided not to cooperate. [ 100 ] The appellant Gardner completed the paperwork to admit Mr.

Rogers into cells. Her uncontradicted evidence was that they had no training on how to assess who is or is not fit for cells. She had two weeks general training with Special Cst. Stephan Longtin followed by on-the-job experience. [ 101 ] S/Cst. Gardner knew Mr. Rogers. He had been arrested and brought to cells many times for public intoxication. She knew he could be verbally aggressive, violent or passive-resistant. On June 15, 2016, Mr. Rogers had a spit hood on. He was not being cooperative with the arresting officers. S/Cst. Gardner started filling out the standard medical questionnaire for all prisoners.

One of the officers told S/Cst. Gardner, “He’s not going to answer you” . She wrote on the form “Too intoxicated to answer”. To her, this meant he was drunk and did not want to answer the questions. She saw no injuries. [ 102 ] In the interactions between Mr. Rogers and the arresting officers, S/Cst. Gardner saw nothing she had not experienced before with Mr. Rogers—she saw no indication of distress or any reason to call Emergency Health Services. Based on what the officers told her, her experience, and her own observations, she concluded Mr.

Rogers was fit for cells, but, because of his behaviour, he should not go into

the drunk tank but the “dry cell” (no toilet, sink or bed). [ 103 ] Internal HRPS policy stipulated that prisoners are the responsibility of the arresting and transporting officers until the Booking Office process is complete—they are to provide as much information as possible to the Booking Officer to assist them to determine if the prisoner should be accepted into booking. [ 104 ] HRPS policy for “Intoxicated Persons” required EHS to be called where the prisoner is “showing or known to have been showing any sign of injury, illness, or unconsciousness”. [ 105 ] One of the transporting officers, Cst.

Donna Paris, had experience as a Booking Officer. The Crown asked her why she had not called EHS. Her response: A. I didn’t call for EHS because I felt that Mr. Rogers’ behaviour at the hospital was resisted. And just minutes before that, he was yelling, cursing, swearing, saying, I’m going to kill you, I’m going to fucking kill you. So I didn’t believe that he needed EHS at that time. Cell checks [ 106 ] Sgt. Stephen Gillett was one of two Sergeants in “Internal Oversight”.

He was in charge of auditing the Booking Office to ensure the officers were adhering to the management team’s policies and procedures. [ 107 ] Sgt. Gillett described the responsibilities of the Booking Officers. The officers are required to follow certain protocols if a prisoner is deemed to be “high risk”. In 2016, if a prisoner were “high risk” then 4R checks are called for. He described the checks as for: “rousability”; responds to commands; responds to questions; and, remembers what was said.

The checks were to be done every 15 minutes for the first two hours. [ 108 ] A large three-by-four-foot sign posted in the Booking Office displayed the policy. The policy was stressed through email, conversation and instruction. [ 109 ] Sgt. Gillett examined the tape from the night of June 15 and early morning hours of June 16. It was his view that none of the cell checks done by either appellant met the criteria of a 4R cell check. They were more in the nature of a “stop and look” check. [ 110 ] There was no specific policy about use of the “dry cell” but Sgt.

Gillett offered it was for highly intoxicated, violent or possibly suicidal prisoners. [ 111 ] Sgt. Gillett had reviewed and observed how the appellants had been doing their job in booking for two years. He found no fault in how they did their respective duties. He acknowledged meetings with the Booking Officers, including the senior Booking Officer, S/Cst. Longtin, and their complaint that it was impossible to do 4R checks. Sgt. Gillett promised he would take up their concerns; in the meantime, “continue doing it the way you are doing it”. [ 112 ] Sgt.

Gillett testified he went up the chain of command more than once. The answer: you have the policy, carry on. [ 113 ] Every Booking Officer who testified described doing prisoner checks every 15 minutes—but they were not 4R checks. Cst. Tanya Rainault was called by the appellant Fraser. She described her time as a female Booking Officer. A timer was set for 15 minutes. When it went off, that would be the prompt to do the cell checks. These were done by observing if the prisoner was breathing. She had never gone into a cell to rouse a prisoner.

If a prisoner is asleep, you do not want to disturb them. [ 114 ] The senior Book

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