R v Goforth, 2021 SKCA 20

Restriction on Publication There is an order directing that any information that could identify the victims or witnesses under the age of 18 shall not be published in any document or broadcast or transmitted in any way. Court of Appeal for Saskatchewan Citation: R v Goforth , 2021 SKCA 20 Date: 2021-02-02 Docket: CACR2753 Between: Tammy Lynn Goforth Appellant And Her Majesty the Queen Respondent Docket: CACR2757 Between: Kevin Eric Goforth Appellant And Her Majesty the Queen Respondent Before: Caldwell, Leurer and Barrington-Foote JJ.A.

Disposition: CACR2753 – Appeals dismissed CACR2757 – Conviction appeal allowed CACR2753 Written reasons by: In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Leurer The Honourable Mr. Justice Barrington-Foote CACR2757 Written reasons by: In dissent: The Honourable Mr. Justice Leurer and The Honourable Mr. Justice Barrington-Foote The Honourable Mr.

Justice Caldwell On appeal from: 2016 SKQB 75 , Regina Appeal heard: January 15, 2019 and July 21, 2020 Counsel: Brian Pfefferle for Tammy Lynn Goforth Kevin Hill and Aleida Oberholzer on January 15, 2019, and Aleida Oberholzer on July 21, 2020, for Kevin Eric Goforth Beverly Klatt on January 15, 2019, and Pouria Tabrizi-Reardigan on July 21, 2020, for Her Majesty the Queen Caldwell J.A. (dissenting in CACR2757) I.

Introduction [ 1 ] This judgment sets out the reasons why I would dismiss the conviction and sentence appeals brought by Tammy Lynn Goforth (CACR2753), with which my colleagues agree, and the dissenting reasons under which I would dismiss the convictions and sentence appeals of Kevin Eric Goforth (CACR2757). [ 2 ] Following a joint trial, a jury convicted Ms. Goforth of second degree murder and Mr. Goforth of manslaughter in the starvation death of one of their foster children. The jury also convicted them each of unlawfully causing bodily harm to a second foster child. Only Mr.

Goforth has appealed against a conviction in respect of the second child.

[ 3 ] Ms. Goforth argues her second degree murder verdict is inconsistent with Mr. Goforth’s manslaughter verdict and that there is no rational basis upon which the two verdicts can be reconciled. Ms. Goforth, who received a mandatory life sentence, also says her 17- year period of parole ineligibility is excessive and demonstrably unfit. [ 4 ] Mr. Goforth argues his convictions must be set aside because the trial judge erred in ways that deprived him of the defence of lawful excuse and of a trial by jury.

In his sentence appeal, he raises four grounds, three of which relate to the degree of his moral culpability for the death of the older child. Under the fourth ground, Mr. Goforth says his sentence is disproportionate to the sentences imposed in situations similar to his. [ 5 ] In addition to this, during the panel’s deliberations, the adequacy of the trial judge’s instructions to the jury on mens rea was brought into question and, therefore, the Court sought and received supplementary submissions from the Crown and the appellants and reconvened to receive oral submissions on that issue.

I address the adequacy of the jury instructions in this regard in my reasons for dismissing Mr. Goforth’s convictions appeal. II. Background [ 6 ] Because the issues raised in these appeals are largely legal, I will not delve into the extremely disturbing evidence of prolonged neglect and starvation of the two small girls at the heart of this case. Where necessary, I address the evidence relevant to the grounds of appeal in general terms. [ 7 ] It is sufficient to know that, on November 8, 2011, two children were placed in foster care with the Goforths. At the time, the children were aged three and two.

On the evening of July 31, 2012, the Goforths rushed the older child to hospital. She died on the morning of August 2, 2012. The cause of her death was “diffuse hypoxic/ischemic brain injury that developed following a cardiac arrest on July 31, 2012, secondary to malnutrition and dehydration”. The younger child had been similarly starved and neglected but survived. [ 8 ] The Crown charged each of the Goforths with second degree murder in respect of the older child and with unlawfully causing bodily harm in relation to the younger child.

All four charges depended on the Crown proving that the Goforths had each committed an unlawful act, namely, breach of the legal duties set out under either s. 215(1) (

a) or s. 215(1) (

c) of the Criminal Code . [ 9 ] In broad terms, s. 215(1) imposes a legal duty on certain individuals to provide the necessaries of life to other individuals. Subsection 215(1) (

a) imposes the duty on a “parent, foster parent, guardian or head of a family” in relation to a child under the age of sixteen years. Section 215(1) (

c) imposes the duty on an individual in relation to someone under their charge who is “unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw [themselves] from that charge”. It is an offence under s. 215(2) to breach either of these duties. [ 10 ] The jury convicted Ms. Goforth of the second degree murder of the older child. The jury acquitted Mr. Goforth of murder and convicted him of the lesser and included offence of manslaughter in respect of the older child. Both were also convicted of unlawfully causing bodily harm to the younger child. [ 11 ] The trial judge sentenced Ms.

Goforth to life imprisonment without eligibility for parole for 17 years. She sentenced Mr. Goforth to 15 years of imprisonment, granting him three months’ credit for time served on remand and nine months’ credit in recognition of the nature of the conditions upon which he had been released pending his trial. III. Conviction Appeals A. The offences [ 12 ] In connection with the death of the older child, Mr. Goforth and Ms. Goforth were each charged with murder ( Criminal Code , s. 229 ). In connection with the younger child, they were each charged with unlawfully causing bodily harm (s. 269(a)).

Some background on the nature of these criminal offences, as well the predicate offence under s. 215(2) of failure to provide the necessaries of life, is required to understand the issues in the conviction appeals.

Section 229 – murder [ 13 ] A person commits homicide when, directly or indirectly, by any means, they cause the death of a human being ( Criminal Code , s. 222(1) ). Homicide is either culpable or not (s. 222(2)). A person commits culpable homicide when they cause the death of a human being by means of an unlawful act (s. 222(5)(a)). Culpable homicide is murder, manslaughter or infanticide (s. 222(4)). Infanticide is not at issue in these appeals. [ 14 ] Culpable homicide is murder in the circumstances described in s. 229 (a): 229 Culpable homicide is murder (

a) where the person who causes the death of a human being (

i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not[.] [ 15 ] Murder is classified as either first or second degree murder ( Criminal Code , s. 231(1) ), with the distinction being that first degree murder occurs in the context of a “planned and deliberate” homicide ( s. 231(2) ) or where the circumstances of the homicide satisfy

the requirements of any of ss. 231(4)–(6.2). Neither Ms. Goforth nor Mr. Goforth was charged with committing first degree murder. Anymurder that is not first degree murder is second degree murder (s. 231(7)). The distinction between the two classes of murder is relevantfor the purposes of parole eligibility (s. 745).

Section 234 – manslaughter [16] Culpable homicide that is not murder or infanticide is manslaughter (Criminal Code, s. 234). The external circumstances oractus reus of unlawful act manslaughter under s. 222(5) require the Crown to prove that the accused committed an unlawful act thatcaused death (R v Javanmardi, 2019 SCC 54 at para 25, 439 DLR (4th) 579; R v Creighton, (SCC), [1993] 3 SCR 3 at42–43; R v DeSousa, (SCC), [1992] 2 SCR 944 at 959–962).

As in this case, an omission to do anything that was theaccused’s legal duty to do may constitute the predicate unlawful act (R v Javanmardi, at para 19; R v Plein, 2018 ONCA 748 at paras 28–30, 365 CCC (3d) 437). The Crown is no longer required to prove as a separate element that the predicate unlawful act was objectivelydangerous. An unlawful act accompanied by objective foreseeability of the risk of bodily harm that is neither trivial nor transitory is anobjectively dangerous act (R v Javanmardi at paras 26–30 and 44). [17] Manslaughter is an included offence in a charge of murder (Criminal Code, s. 662(3)).

Unlawful act manslaughter is eithervoluntary or involuntary. Where the accused lacks both of the mental intents for murder under s. 229(a), a culpable homicide is termed aninvoluntary manslaughter. The mens rea of unlawful act manslaughter comprises: (

a) the mens rea of the predicate offence; and(

b) objective foreseeability of the risk of bodily harm that is neither trivial nor transitory (R v DeSousa at 961–962; R v Creighton at 42–43; and R v Javanmardi at para 31). Both of these fault elements require the trier of fact to measure the degree to which the accused’sconduct departs from the standard of a reasonable person in the circumstances (R v Javanmardi at para 32), which is an entirely contextualassessment (R v Fontaine, 2017 QCCA 1730 at para 27, 41 CR (7th) 330). [18] The requirement of objective foresight under s. 269 of the Criminal Code “is equally applicable to manslaughter” (R vCreighton at 44).

Section 269 – unlawfully causing bodily harm [19] Under s. 269 of the Criminal Code, it is an offence to unlawfully cause bodily harm to another individual. The externalcircumstances of this offence require the Crown to prove that the accused committed an unlawful act that is likely to subject anotherindividual to danger of bodily harm that is more than merely trivial or transitory in nature.

The mens rea element of the offence iscomprised of the mental element of the predicate unlawful act and objective foresight of bodily harm (R v DeSousa at 961). [20] As noted, the Crown is no longer required to prove that an unlawful act was objectively dangerous. An unlawful actaccompanied by objective foreseeability of the risk of bodily harm that is neither trivial nor transitory is an objectively dangerous act (R vJavanmardi at paras 26–​30 and 44). 4.

Section 215(2) – failure to provide the necessaries of life [21] In this case, the charges of second degree murder (and the included offence of manslaughter) and of unlawfully causing bodilyharm were predicated on an alleged failure, without lawful excuse, of each appellant to provide a child with the necessaries of life contraryto s. 215(2) of the Criminal Code. In relevant terms, s. 215 provides: Duty of persons to provide necessaries 215(1) Every one is under a legal duty (

a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years; … (

c) to provide necessaries of life to a person under his charge if that person (

i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and (ii) is unable to provide himself with necessaries of life. Offence 215(2) Every person commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuseto perform that duty, if (

a) with respect to a duty imposed by paragraph (1)(

a) or (b), … (ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health ofthat person to be endangered permanently; or (

b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty isowed or causes or is likely to cause the health of that person to be injured permanently. [22] The basic terms of s. 215(2) require the Crown to prove the following facts beyond a reasonable doubt to establish the actusreus of the offence:

(

a) the accused owed one of the duties described in s. 215(1); (

b) the accused failed to provide the necessaries of life; and (

c) the failure endangered the life of the person to whom the duty is owed or caused the person’s health to be endangeredpermanently. [23] The mens rea requirement under s. 215(2) is found in the reasons of Lamer C.J.C. in R v Naglik, (SCC), [1993]3 SCR 122 at 143–144: What parts of the offence must be objectively foreseeable?

In this appeal, Naglik was charged under ss. 197(2)(a)(ii) and 197(3) (now ss.215(2)(a)(ii) and 215(3)) of the Criminal Code, which make the failure to fulfil the duty to provide necessaries an offence where “thefailure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of thatperson to be endangered permanently”.

I would hold that s. 215(2)(a)(ii) punishes a marked departure from the conduct of a reasonablyprudent parent in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a riskof danger to the life, or a risk of permanent endangerment to the health, of the child.

This is not one of the few offences, described in R. v.Creighton, [1993] 3 S.C.R. 3 (judgment rendered concurrently), in which the nature of an underlying act, unlawful in itself, is so risky thatit is presumed to involve objective foresight of the risk of the consequences which follow and which give rise to a separate offence. Thecircumstances described in subs. (2)(a)(ii) are not just aggravating consequences, but are essential elements of the actus reus of theoffence.

Thus, the Crown must prove beyond a reasonable doubt both that the circumstances listed in subs. (2)(a)(ii) were objectivelyforeseeable in the circumstances, and that the conduct of the accused represented a marked departure from the standard of care requiredby those circumstances. (Emphasis added) [24] The term marked departure connotes more at law than simple negligence or mere carelessness.

For example, in R v McKay(1997), (SK KB), 154 Sask R 38 at para 52 (QB), Scheibel J. found the accused’s conduct had met the requirement ofa marked departure from the standard of care because it was “more than mere civil negligence, more than simple inadvertence, more thanthoughtlessness or a simple error in judgment”. In R v Patenaude, 2004 SKQB 295 at para 4, 250 Sask R 308, Ball J. said that“establishing civil negligence is not sufficient; there must be a criminal quality” to the conduct.

Both of these Saskatchewan casesinvolved dangerous driving, where the standard of care is readily ascertainable from government regulation of activities involving motorvehicles.

However, as O’Farrell J.A. observed in his dissenting reasons in R v Stephan, 2017 ABCA 380, [2018] 4 WWR 719 [R vStephan CA], which were favoured by the Supreme Court in R v Stephan, 2018 SCC 21, [2018] 1 SCR 633, it is more difficult to establishthat the conduct of a parent amounts to a marked departure from the objective or community standard of care imposed under s. 215(1)because there is “no such code or standards when it comes to parenting or caregiving” (at para 250). [25] For this reason, the issue of whether the minimum objective standard of care imposed by Parliament under s. 215(1) has beenmet or breached is highly dependent on the circumstances of each case.

The inquiry is often framed simply as: What would the reasonableparent have done in the circumstances that presented themselves to the accused? However, under this single question, the trier of fact mustassess the circumstances of an alleged offence to determine whether the accused has failed to meet the standard of care and, if so, whetherthe accused’s failure amounts to a marked departure from the conduct of a reasonable parent.

Further, when considering marked departure,the trier of fact must determine whether it was foreseeable in the circumstances that the failure in question would endanger the life of thechild to whom the duty is owed or cause or be likely to cause the health of that child to be endangered permanently. [26] As O’Farrell J.A. cautioned in R v Stephan CA, “hindsight is not foreseeability” (at para 266).

The disastrous consequences ofthe conduct in question do not determine the guilt or innocence of the accused (see Zoe Johansen-Hill, “Disastrous Consequences: R. v.Stephan and the Danger of Hindsight Bias”, 2018 CanLIIDocs 10525).

Rather, it is the degree of negligence that is determinative ofwhether there has been a marked departure from the objective standard of care (R v Javanmardi at paras 21–23; R v Beatty, 2008 SCC 5 atpara 35, [2008] 1 SCR 49; R v F.(J.), 2008 SCC 60 at para 67, [2008] 3 SCR 215). [27] In R v Javanmardi, Abella J. explained that the requirements of objective foreseeability and marked departure “both askwhether the accused’s actions created a risk to others, and whether ‘a reasonable person would have foreseen the risk and taken steps toavoid it if possible’” (at para 22).

I observe from this that it is reasonable to approach objective foreseeability and marked departure assimply the two sides of one coin. Hamish Stewart, in “F.(J.): The Continued Evolution of the Law of Penal Negligence” (2008) 60 CR(6th) 243 (WL), describes the approach in these terms: But if the marked departure is a fault element, it is, on Fish J.’s approach [in R v F.(J.)], a fault element with two branches: one relating tothe accused’s creation of risk and the other to the reasonable person’s awareness of that risk.

So, after F. (J.), it is probably best to treat themarked, or marked and substantial, departure from the standard of care as a hybrid element that, though compendiously described as afault element, contains aspects of both conduct and fault. Consider, once again, the way that Fish J. describes fault elements at issue in thiscase.

For the predicate offence of failing to provide the necessaries of life, the Crown had to show that “a reasonable parent in the samecircumstances would have foreseen that failing to protect [the child] would cause the child’s health to be endangered permanently”; that is,that the accused created risk (failed to protect the child) and that the accused was or ought to have been aware of the risk. Thus, the hybridelement might be described as follows.

If the accused ought to have known (mens rea branch) that his breach of duty would create a riskto the child’s life or safety (actus reus branch), he markedly departs from the standard of care (hybrid element). … (Footnotes omitted; italic emphasis added) [28] Nonetheless, to prove the commission of the predicate offence under s. 215(2) of the Criminal Code in the circumstances ofthis case, the Crown had to prove, beyond a reasonable doubt, that: (

a) the accused owed one of the legal duties described in s. 215(1), i.e., either that: (

i) the accused was a parent, foster parent, guardian or head of a family in respect of a child under the age of sixteen years; or

(ii) a child was under the accused’s charge who was unable by reason of age or otherwise to withdraw themselves from thatcharge and was unable to provide themselves with the necessaries of life; (

b) the accused failed by act or omission to provide the necessaries of life to the child in question; (

c) the accused’s failure endangered the child’s life or caused or was likely to cause the child’s health to be endangeredpermanently; (

d) it was objectively foreseeable that the accused’s failure would endanger the life of the child or cause or be likely to cause thechild’s health to be endangered permanently; and (

e) the accused’s failure constituted a marked departure from the conduct expected of a reasonable parent in the circumstances. [29] Questions arising in Mr. Goforth’s convictions appeal ask whether the trial judge functionally equipped the jury with the toolsnecessary to carry out its fact-finding role with respect to (

d) and (

e) above and whether she adequately reviewed the evidence that wasrelevant in that regard. For the purposes of s. 677 of the Criminal Code, the grounds in law upon which I dissent in Mr. Goforth’sconvictions appeal in CACR2757 are set out in my reasons addressing these questions. However, with that background, I turn first toaddress Ms. Goforth’s conviction appeal. B. CACR2753 – Tammy Lynn Goforth conviction appeal [30] Ms. Goforth challenges only her second degree murder conviction and she does not impugn the trial judge’s instructions to thejury in that respect.

In the context of that conviction, the jury must be taken to have concluded that Ms. Goforth had the mens rea requiredto commit murder. This means the jury found, beyond a reasonable doubt, one of two facts, either (

a) that Ms. Goforth meant to cause theolder child’s death or (

b) that she meant to cause the older child bodily harm that she knew was likely to cause the child’s death and shewas reckless as to whether death ensued or not (Criminal Code, s. 229(a)). With respect to the offence under s. 215(2), the jury’sconclusion also amounts to a finding that Ms. Goforth had intentionally breached one or both of the duties she owed to the older childpursuant to s. 215(1) of the Criminal Code. [31] Under her grounds of appeal, Ms. Goforth asserts her verdict of guilt for second degree murder is inconsistent withMr. Goforth’s verdict of guilt for manslaughter.

She says the evidence against her in the trial was “virtually identical” to the evidence theCrown had tendered against Mr. Goforth. Nonetheless, the jury was obviously not persuaded beyond a reasonable doubt that Mr. Goforthhad held one of the two intents for murder because it convicted him of manslaughter. She says these two verdicts are not reconcilablebecause there is no logical explanation in the evidence for their inconsistency.

She asks this Court to quash her second degree murderconviction and to either order a new trial or enter a manslaughter conviction. [32] An allegation of inconsistent verdicts is an allegation that the appellant’s verdict should be set aside on the ground it isunreasonable (Criminal Code, s. 686(1)(a)(i)). An appeal court may not interfere with a jury verdict on the ground that it is inconsistentunless the appellant persuades the court that no reasonable jury, whose members have applied their minds to the evidence, could havearrived at that verdict (R v Pittiman, 2006 SCC 9 at para 6, [2006] 1 SCR 381).

Justice Charron explained the practical effect of this in R vPittiman: [7] The onus of establishing that a verdict is unreasonable on the basis of inconsistency with other verdicts is a difficult one to meetbecause the jury, as the sole judge of the facts, has a very wide latitude in its assessment of the evidence. The jury is entitled to accept orreject some, all or none of any witness’s testimony. Indeed, individual members of the jury need not take the same view of the evidence solong as the ultimate verdict is unanimous.

Similarly, the jury is not bound by the theories advanced by either the Crown or the defence.The question is whether the verdicts are supportable on any theory of the evidence consistent with the legal instructions given by the trialjudge. Martin J.A. aptly described the nature of the inquiry in R. v. McShannock (1980), (ON CA), 55 C.C.C. (2d) 53(Ont.

C.A.), at p. 56, as follows: Where on any realistic view of the evidence, the verdicts cannot be reconciled on any rational or logical basis the illogicality of the verdicttends to indicate that the jury must have been confused as to the evidence or must have reached some sort of unjustifiable compromise.We would, on the ground that the verdict is unreasonable alone, allow the appeal, set aside the verdict, and direct an acquittal to beentered. [8] The search for a rational or logical basis for the verdicts does not mean that where a narrative of the events is not readily apparentfrom the jury’s findings that the impugned verdict must necessarily be set aside as unreasonable.

The jury’s task is not to reconstruct whathappened. Rather, it is to determine whether the Crown has proven each and every element of the offence beyond a reasonable doubt.Therefore, in the case of a single accused charged with multiple offences, different verdicts may be reconcilable on the basis that theoffences are temporally distinct, or are qualitatively different, or dependent on the credibility of different complainants or witnesses. Thestrength of the evidence relating to each count may not be the same, leaving the jury with a reasonable doubt on one count but not on theother.

On the other hand, when the evidence on one count is so wound up with the evidence on the other that it is not logically separable,inconsistent verdicts may be held to be unreasonable: e.g., see R. v. Tillekaratna (1998), (ON CA), 124 C.C.C. (3d) 549(Ont. C.A.). [9] The reasonableness of a verdict in the case of multiple accused charged with the same offence will require a consideration of muchthe same factors. For example, the jury may accept the complainant’s testimony as credible in respect of one accused, but reject thecomplaint against another.

The overall strength of the evidence relating to each accused may not be the same, leaving the jury with areasonable doubt on the guilt of one, but not of the other. Of necessity, the case of multiple accused will also raise different considerations.For example, when considering a single accused who is charged with multiple offences, there is little to be gained by asking whether theevidence is the same. The evidence, by definition, will be different for each offence.

Conversely, whether the evidence is the same will bethe primary focus when considering inconsistent verdicts as between multiple accused charged with the same offence. [10] As a practical matter, it will often prove to be more difficult for an appellant to meet the test in the case of multiple accused

charged with the same offence, not because the test is different, but because there is often a wider scope for differing verdicts in the caseof multiple accused. However, to say, as the Court of Appeal for Ontario did in R. v. Wile (1990), (ON CA), 58 C.C.C.(3d) 85, and as Weiler J.A. did in her majority reasons in this case (at para. 17), that it is not possible to characterize inconsistent verdictsagainst co-accused as unreasonable unless the evidence against both is “identical”, overstates the practical difficulty in meeting the onusand, consequently, is inaccurate.

The test remains the same in each case: Are the verdicts irreconcilable such that no reasonable jury,properly instructed, could possibly have rendered them on the evidence? [33] As this is Ms. Goforth’s conviction appeal, it is not for this Court to assess the alleged verdict inconsistency by consideringwhether Mr. Goforth’s acquittal of murder is unreasonable. Our task is to consider only whether Ms.

Goforth’s conviction is unreasonable(R v Nguyen, 2013 BCCA 125 at para 15, 336 BCAC 164, citing R v Dalen, 2010 BCCA 30 at para 68, 282 BCAC 206, and R v Pittimanat para 13). [34] In conclusory terms, I am not persuaded by Ms. Goforth’s argument because I do not share her assessment of the evidenceagainst her and as against Mr. Goforth as being “virtually identical”. Having reviewed the transcript of the trial, it is clear the evidenceagainst each of the Goforths on the issue of mens rea was not even similar.

This left it open to the jury to reach different conclusions withrespect to each accused based on the differences in the evidence and, in this case, the evidence sets out a rational basis for reconciling theverdicts reached by the jury. [35] The lengthier answer is that the Crown’s case against Ms. Goforth on the charge of murder was stronger than the case itbrought to bear against Mr. Goforth on that charge. In particular, the evidence in respect of Ms. Goforth’s knowledge of the circumstanceswas not the same as it was in respect of Mr. Goforth’s knowledge.

Evidence given by both accused was to the effect that Ms. Goforth hadbeen the primary caregiver to the two foster children. She was at home with the children all day. Put in terms of her responsibilities,Ms. Goforth was to bathe and clothe the children; she was to prepare their meals and feed them; she was to change their diapers and handletoilet-training; and she was responsible for their healthcare and their discipline. Ms. Goforth also managed the day-to-day undertakings inthe Goforth household. She dealt with the Ministry of Social Services. Speaking to the actus reus, Ms.

Goforth testified she had beenproviding food to the children and had not deprived them of sustenance. She told Mr. Goforth the children were just sick. It was primarilyher decision not to seek medical care for the children. [36] On the other hand, Mr. Goforth testified that he worked out of the home six days a week, leaving before the children arose andreturning an hour or so before their bedtime. He denied seeing the children without their clothes on. He stated he had not seen theirinjuries, but that Ms. Goforth had told him about them.

He said he believed his spouse when she told him the children were just sick andhe claimed to have had no direct knowledge of their health problems. He described himself as acquiescing to Ms. Goforth’s decisions ontreatment of the girls’ injuries, observing that she had bandaged them. He testified that he did not know the children had been confined totheir room at times. [37] In the end, both verdicts speak to the absence of reasonable doubt about the Goforths’ shared culpability for the older child’sdeath.

Reduced to the mens rea elements of murder and of manslaughter, the evidence provided a sufficient basis for the jurors toconclude that Ms. Goforth had full knowledge of the extent of each child’s injuries, neglect and malnutrition such that either she hadmeant to cause the older child’s death or had meant to cause the older child bodily harm that she knew was likely to cause the olderchild’s death and she was reckless as to whether death ensued or not. In contrast to this, there was an evidentiary basis for the jury to haveheld a reasonable doubt about whether Mr.

Goforth had the knowledge necessary to satisfy the mens rea requirement for murder but tohave had no reasonable doubt that it was objectively foreseeable that his failure to provide the necessaries of life to the older child wouldsubject the child to the risk of bodily harm beyond the trivial or transitory. These different verdicts are logically reconcilable because theevidence provided the jury with a basis to conclude that Ms. Goforth had greater personal knowledge of the children’s care and nutritionas well as of their physical condition. [38] Ms.

Goforth also raises the fact the jury had asked a question about part of the trial judge’s instruction to the jury addressingintent. She does not, however, impugn the jury instruction or the trial judge’s response to the question raised by the jury. Rather,Ms. Goforth points to the question as being confirmative of confusion on the part of the jury as to the mens rea required to ground aconviction for murder. The question, she says, demonstrates the jury’s confusion and the confusion explains the inconsistent verdicts.

Asnoted, I do not find the verdicts are inconsistent, so I will only briefly explore this thread of her argument. [39] The question the jury posed was this: We are looking for some clarification on page 64, number 174, about “the mental element.” This would be in

Part II on the Review ofLaw and Evidence. Thanks, Jury. [40] I pause to note that the references to “page 64” and “number 174” are to page and paragraph numbers in the written copy of thejury instructions. The transcript demonstrates that the trial judge delivered her instructions by first reading faithfully from the written textand then by providing a copy of that text to the jurors for their reference during deliberations.

For this reason, quotations from the juryinstructions set out in my reasons are sourced from its written text rather than the transcript. [41] The jury instruction under paragraph 174 was: 174. The mental element that must be established or proven by the Crown beyond a reasonable doubt to make an unlawful killingmurder is subjective.

Proof is required of an accused’s actual mental state, actual state of mind, which must extend beyond merelyintending to engage in the conduct, to do or fail to do the things that constitute the external circumstances of the offence. [42] After canvassing the jury’s question with counsel, and with their agreement, the trial judge responded to the jury in this way: Response to Question THE COURT: Good evening. So I’ve received a question from the jury. I have reviewed the question with counsel, and they’ve had the

opportunity to assist me in deciding what I might say to you in answer to your question. So the question you’ve asked deals with paragraph 174, which says: The mental element that must be established or proven by the Crown beyond a reasonable doubt to make an unlawful killing murder is subjective. And as I understand your question, you’re wanting to know about the mental element referred to in that paragraph.

And so when you look at the mental element that is required, I would take you back to paragraph 169, which is: In other words you must decide whether the Crown has proved beyond a reasonable doubt either that Tammy Goforth meant to kill [the older child] or that Tammy Goforth meant to cause [the older child] bodily harm that she knew was so dangerous and serious that she knew it was likely to kill [the older child] and proceeded despite her knowledge of that risk. So that would be the mental element required as referred to in paragraph 174.

So I hope that will assist you, and I would invite you to go back to your jury room and to continue with your deliberations. If you have anymore questions, please let me know. THE COURT CLERK: All rise. Having received this response, the jury asked no further questions about mens rea . [ 43 ] As can be seen, both the initial charge to the jury and the trial judge’s answer to the jury’s question correctly instructed the jury on what the Crown had to prove in terms of mens rea for a murder conviction to lie against Ms. Goforth.

As such, I am not persuaded the jury was confused or misunderstood the mens rea requirement of murder when it reached its verdicts on that charge. [ 44 ] The different verdicts for Mr. Goforth and Ms. Goforth on the charge of murder are not inconsistent and are supported by the evidence. The verdicts may be reconciled on the basis of the nature and strength of the evidence as against each of the Goforths with respect to their knowledge of the circumstances of the older child’s death. The trial judge adequately instructed the jury as to the mens rea requirements of murder. [ 45 ] For these reasons, I find Ms.

Goforth’s verdict of guilt for murder is not unreasonable. I would dismiss her conviction appeal. C. CACR2757 – Kevin Eric Goforth convictions appeal [ 46 ] I would dismiss Mr. Goforth’s convictions appeal. To set the context for my dissenting reasons in that regard, Mr. Goforth and Ms. Goforth had played different roles in the care of their foster children and, at trial, he disclaimed that either he or Ms. Goforth had committed the actus reus of the predicate offence under s. 215(2) .

Furthermore, in the context of both his second degree murder charge (count 1 of the indictment against him) and the charge of unlawfully causing bodily harm (count 2 of the indictment), Mr. Goforth adamantly disclaimed having intended to harm the two children or to bring about the older child’s death. [ 47 ] The evidence was unequivocal that Ms. Goforth had direct responsibility in the household for the day-to-day care of the children and Mr. Goforth did not. He claimed a much more distant responsibility for their wellbeing. I have previously summarised his evidence in this regard under Ms.

Goforth’s conviction appeal. In the jury instructions, the trial judge summarised his evidence as follows: 227. Kevin testified he is a busy working man. He works six days per week. He testified [he] is up at 5am and generally at work by 6am. 228. Kevin testified he is a busy working man. He works six days per week. He testified He described them as being very cute little slender girls with high cheek bones. 229. Kevin described the night when [the younger child] cut her cheek. He said he didn’t know her name then. He just called her “baby girl”. 230. Kevin was asked about his involvement if any with Alicia Ward.

He had none with her and none with anyone else from Social Services. 231. Kevin testified that the family ate together at suppertime and that they would wait for him to arrive. This included the girls. [The younger child] ate at a little table and [the older child] ate at the big table. He thought the girls ate quite a bit. Tammy was responsible to bathe the girls and change their diapers. Kevin never saw the girls without their clothes on. 232. [The older child] chewed her food most of the time. On more than a couple of occasions she vomited after supper. 233.

Kevin testified that he never denied food to the girls and Tammy didn’t either. 234. Kevin observed mittens taped to the girls’ hands. Tammy told him it was to prevent them from scratching. He recalls seeing this a couple of times near the beginning and couple of times closer to July. 235. Kevin was asked to describe the days leading up to July 31, 2012. Kevin testified that [both of the children’s] health fluctuated up and down right from the beginning. There were good days and bad days. He and Tammy bought medicine for them out of their own pockets. Tammy would nurse them back to health.

Sometimes they had high fevers. He saw some of this himself and on other occasions he’d be told about it by Tammy. 236. Kevin testified that in the days leading up to July 31 he noticed the girls’ eating habits change. At the beginning they ate a lot. Closer to June and July, they were not eating as much. He noticed they started vomiting and Tammy told him they had diarrhea.

237. He observed some bruises on [both of the children’s] feet leading up to July 31, 2012. He didn’t think anything of it. He was asked to look at the photo of the ulcer on [the younger child’s] leg. He said he had been told by Tammy that [the younger child] hurt herself, but it was bandaged when he saw it. Kevin testified the girls had body hair when they arrived. 238. Kevin was asked to describe what happened on July 31, 2012. He said he was at work for the day. He arrived home around 6-6:30. He observed it was quiet in the house. He had a shower. He doesn’t remember if he ate or not.

He may have had a sandwich. [One of the sons] got home and he talked to him briefly. He saw Tammy on the couch in the living room. The TV was off. He could hear whispering upstairs from the girls’ room. Kevin testified he lay down on the couch and watched TV and fell asleep. He woke up to a blood-letting yell from Tammy. Tammy was holding [the older child] and saying “it’s [the older child], it’s [the older child]”. He took [the older child], who was wrapped in a blanket and they went to the hospital. Tammy drove and he held [the older child]. 239.

Kevin was shown some photos of the house including the string on the bedroom door belonging to the girls. He said he had never seen it used and he’d never seen the string before. He was shown a picture of the cargo strap and he testified he never used it to tie down [either of the children]. He also testified he never saw Tammy tie down anyone or anything. 240. Kevin testified that he was wearing swimming trunks and had a bare chest when they went to the hospital. He was taken to the police station from the hospital and held there for 2½ days wearing just his trunks.

In cross-examination he acknowledged he was given a jump suit to wear. 241. Kevin testified that he was questioned by the police. He said he was in a state of shock, he was cold, his emotions were all over the place, he was scared and he was thinking of [the older child], his boys and his wife. He testified he did not give the police clear answers to their questions. The police put words in his mouth. They would try to make him say something when he didn’t. He testified in direct examination that what he told the police was not true. He was very emotional at the police station. He was crying, very upset, scared.

His world had come crumbling down. He was lonely and worried. 242. Kevin testified he never bound [the older child] or [the younger child]. And he never saw Tammy bind or tie down [the older child] or [the younger child]. He did not intend to cause the death of [the older child]. He did not intend to hurt [the older child]. He did not intend to hurt [the younger child] in any way. He did not deprive [the older child] or [the younger child] of food at any time. He never struck [the younger child]. 243. Kevin didn’t notice that the kids had bad teeth. Kevin was not prepared to say the girls had chubby cheeks.

He reiterated they had high cheek bones. When asked to compare the photos of [the older child] in the hospital with the ones taken in his house in March, he said he thought her arms looked the same in both photos. He described [the older child’s] arms in the hospital as being slender. He didn’t pay attention to [the older child’s] arms leading up the July 31,2012. He said he was concerned about [the older child] being slender, but he didn’t do anything about it. 244. He didn’t know the girls’ birthdays when they were with him. 245.

Kevin testified he didn’t see the girls’ bodies so he couldn’t say if they were skin and bone. Kevin said he saw some marks on [the older child’s] heels from wearing tight leather shoes. He testified he has seen bandages on the girls, but not actual injuries. He did not see the injury to [the older child’s] chin and matching injury to her chest. He did not see the injury to the back of her head. Kevin said he had never seen [the older child’s] back. He testified that Tammy told him [the older child] had a pretty bad rash, but he had never looked.

He said they never took their kids to the doctor for a rash - Tammy took care of it. He acknowledged he had not seen the girls wasting away. His response when it was suggested to him that this had been going on for weeks - “That’s a lie”. He never noticed that their high cheek bones disappeared. 246. Kevin testified that he knew they had reduced their food intake in the previous week, but they were sickly little girls and Tammy always brought them back to health. It never crossed his mind that they needed medical attention. 247. Kevin said he didn’t know he had been designated a person of significant interest.

He never discussed this with Tammy. He thought he was short-term parent. He denied ever seeing the court order. 248. Kevin testified he did things with the boys and Tammy was responsible for the girls. 249. Kevin testified that the girls got sick twice a month and Tammy took care of it. At no point did they think they should call the doctor or the free health line. 250. Mr. Goforth was asked if he agreed that he failed in his responsibility as their caregiver and that failure resulted in malnutrition and dehydration and bruises. Mr.

Goforth’s response was that he was sorry they didn’t or couldn’t get them back to health, but he thought it was just another time the girls were sickly. Mr. Goforth agreed it was their responsibility to take care of the girls and they were doing the best they could. Mr. Goforth recalled they had a family meal the Sunday before this happened. He hadn’t been home for supper July 31, but he saw dishes in the kitchen and thought the family ate without him. 251. Mr. Goforth said the girls were sick a couple times in July. This meant vomiting and diarrhea. They would push their food away.

He denied that they should have taken the girls to the doctor if they were throwing up or had diarrhea several times a month for 9 months. They just never thought of it. To be clear, the foregoing excerpt represents just Mr. Goforth’s evidence. [ 48 ] As to Mr. Goforth’s position at trial, he said neither he nor Ms. Goforth had deprived the children of food or fluid. In the written

summary of the defence theory that his counsel provided to the trial judge to assist in the preparation of the jury instructions, counsel stated: It is the submission of the defence on behalf of Kevin Goforth, that at no time, while the children were in his care, did he ever restrain the children or prevent them from consuming food. That at no time did he deprive either child of food or water. That at no time did he ever

strike or purposely or intentionally injure either child. It is further submitted that Kevin Goforth did not intentionally cause the death of[the older child]. That at no time did he intentionally seek to harm or cause harm intentionally to [the younger child]. The trial judge prepared her charge accordingly. Further, the transcript records the fact that Mr. Goforth’s closing submissions to the juryremained consistent with the theory of his defence set out in his written

summary. [49] It is also important to note that Mr. Goforth did not deny, at any time, that he had known the children were sick while in theGoforths’ care. His position throughout the trial was summarised in his counsel’s closing submissions, which address the actus reus butchiefly focused on Mr. Goforth’s assertion of a lack of intent to harm or injure the children: So with all of that -- with all of that, we know the evidence -- the evidence of -- of the girls being provided food, the poopy diapers, theurine, which can only lead to the conclusion that the girls had some food and liquids.

The sippy cups, the -- the bowls. This case boilsdown to two issues. Reasonable doubt and Kevin Goforth did not intend to hurt those girls. He said he loved them like his own. Heshowed emotion on the stand. He was on the stand for over seven hours. You can lead to your own conclusion as to why he needed to beon the stand for seven hours. Because the Crown cannot prove beyond a reasonable doubt that Kevin Goforth intended to cause bodilyharm. That he intended to kill. And that is why we’re here. It’s about intent.

He was a -- Kevin Goforth was an old school dad, traditional,church going, but he was doing his best, what he knew. He testified that in the past with his boys, if they had gotten sick, Tammy would nurse them back to health. Natural for him to assume thatthat would happen in this case. The girls, we know, were small when they came to the residence. We can hear the evidence of -- theCrown will make argument and suggest, well, no, they were -- they were normal. We don’t need to rely on conjecture or five year oldmemories. We know what -- that they were small and they were sick.

We don’t need to focus too much on timelines, because none of thedoctors could really pin anything down. We do know from the Crown’s medical book, that the children were not chronically malnourished-- or I should say, [the older child] was not chronically malnourished. Dr. Ladham, when presented with that conclusion in the medicalreport, in the addendum to the autopsy, couldn’t tell the difference between chronic and acute malnutrition. Now why is that important? Well, it shows that even the scientific evidence, even the expert evidence is not able to pin down thetimelines. You are left with conjecture.

The end result is, in my respectful view, food was provided. Liquids were provided. Kids had --kids were never denied meals. They were given birthday parties, Christmas parties, Christmas presents, church, visits to the park. Kevinloved [the older child]. Kevin loved [the younger child]. He wanted them to get better. The Crown wants you to associate malnutritionwith deprivation. They are two different things. Malnutrition is a clinical diagnosis, and we don’t take issue with that. But Kevin neverintended -- intended -- and the Crown will have to prove that.

Her Ladyship will give you the law, that Kevin intended to cause bodilyharm to [the older child] and [the younger child], and he didn’t. So when we review everything, when we comb down, when we take our emotions out of this case, and that is such a hard task, I realizethat, those photos that you’ve seen, you’ve seen autopsy photos, you’ve heard reports. You’ve heard descriptions. Very difficult material.But your task in relation to Kevin Goforth is to assess the charges as relates to him. Did he intend what -- the end result? Did he intend tocause [the older child] and [the younger child] bodily harm?

I believe the answer to be, I suggest to you, is no, he did not. Andaccordingly, I’d suggest that you find -- I humbly ask that you find Kevin Goforth not guilty of -- of count 1 and count 2. (Emphasis added) [50] I observe from this that, because it convicted Mr. Goforth of manslaughter, the jury must be taken to have accepted hissubmission that the Crown had failed to prove he had the intent necessary for murder (count 1).

However, unlike murder, the offences ofmanslaughter (an included offence under count 1) and of unlawfully causing bodily harm (count 2) do not require the Crown to prove thatthe accused had a subjective intent.

As noted, the mens rea requirement of each is satisfied by proof, in general terms, that the conduct inquestion constituted a marked departure from that of a reasonable person in circumstances where it was objectively foreseeable that saidconduct would give rise to a risk of bodily harm beyond the trivial or transitory. [51] With those facts in place, I turn to address the grounds and other issues arising in Mr. Goforth’s convictions appeal. 1. Usurping the jury’s fact-finding function [52] This ground of appeal is meritless. Mr.

Goforth says the trial judge erred by telling the jury that he was a “foster parent,guardian or head of a family” within the meaning of s. 215(1)(

a) of the Criminal Code. While the trial judge did say that the jury shouldhave no difficulty concluding Mr. Goforth met those criteria, the allegation that she thereby usurped the jury’s function is not borne out. Itis clear, from his testimony and from his submissions to the jury, that Mr. Goforth had all but admitted fulfilling the roles that aredescribed in ss. 215(1)(

a) and (

c) of the Criminal Code. Moreover, as the Crown correctly points out, there is no outright prohibitionagainst a trial judge expressing an opinion about evidence or about witness credibility in a jury trial. [53] A trial judge may opine on a question of fact “as strongly as the circumstances permit”, provided “it is made clear to the jurythat the opinion is given as advice and not direction” (R v Gunning, 2005 SCC 27 at para 27, [2005] 1 SCR 627).

In R v Lawes (2006), (ON CA), 206 CCC (3d) 15 (Ont CA), leave to appeal to SCC refused, , Rouleau J.A. notedinstructively: [35] In my view, a prohibition on the expression of opinion by a trial judge is neither practical nor desirable and such a prohibition isneither explicitly nor implicitly provided for in the words of s. 11(

f) of the Charter. To seek to limit the prohibition to substantial,contested factual issues is of little assistance. The concern at common law and as expressed in s. 11(

f) of the Charter is that the trial judgenot usurp the function of the jury. By allowing the trial judge to express views and opinions on the evidence “as strongly as thecircumstances permit” provided that they do not have the effect of usurping the role of the jury by taking a contested issue away fromthem or by subverting their independence, the common law recognizes that comments are both a necessary and desirable part of the trialjudge’s role. The limit is set at the point where the comments interfere with the exercise of the jury’s role.

Although I firmly believe thatjudges should avoid unnecessary comments or opinions, the focus of the analysis on appeal is not whether an appellate court views theopinion given by the trial judge as having been necessary or even desirable, but rather whether it interfered with the jury’s function or so

undermined the defence position that it deprived the accused of a fair trial. [36] When considering whether a trial judge has gone beyond the limits, the basic assumption is that jurors will abide by their oaths and will accept and follow the judicial instructions they are given. It is assumed, therefore, that when so instructed, jurors will disregard any opinion or statement of the evidence made by the trial judge where it does not accord with their own assessment. This same presumption of juror competence is at the root of the constitutionally protected right to a trial by jury in s. 11(f). [37] In

summary, therefore, the common law rule allows the trial judge to comment on the evidence provided it is made clear to the jury that they are not bound by the judge’s views, that the judge’s opinions are not stronger than the facts warrant and that the opinions are not overstated to the point where it is likely that the jury will be overawed by them. By setting the limit on judicial comment at the point where the comments might impermissibly erode or threaten the fact finding and ultimate arbiter role of the jury, the common law rule fosters rather than impedes the values underlying s. 11(

f) of the Charter . [ 54 ] Given there were two victims in this case, two accused, two charges of second degree murder, and two charges of unlawfully causing bodily harm, the trial judge was called upon multiple times to instruct the jury on what the Crown had to prove to establish a legal duty under s. 215(1) (

a) of the Criminal Code . When dealing with Mr. Goforth’s murder charge, the trial judge summarised the relevant evidence and then expressed her opinion on the issue in these terms: 208. I do not think you will have any difficulty in concluding that Kevin Goforth was a foster parent or guardian or head of family to [the older child], but that is your decision to make. [ 55 ] The foregoing comment does not give rise to an error for two reasons. First, the trial judge made it clear that the jury was not bound by her view of the evidence.

This point, which was reiterated several times in the jury instructions, must be taken to have been understood by the jury. Second, the trial judge’s opinion on the question of fact is not overstated or stated in stronger terms than the evidence warranted. Indeed, the comment was consistent with the submissions to the trial judge made by Mr. Goforth in advance of the charge and with his closing submissions to the jury. [ 56 ] When Mr. Goforth testified in chief, he described himself as a “father” and “uncle” to the girls and that he had taken them in “as my own” and “genuinely loved them with all my heart”.

He described family outings and events in inclusive terms. Under cross- examination, Mr. Goforth testified that his “heart melted and I -- I just, yes, I want[ed] these girls, also” and “I wanted them now. Open arms” and “I just thought I was a short-term parent.” While Mr. Goforth denied that he was a “person of sufficient interest” with respect to the girls, in other parts of his cross-examination he said: Q So when you fell in love with them and you were thinking about their future, you were just thinking about their future in the short-term; that’s fair to say?

You weren’t thinking about them when they were 18? A No. Q They were just going to be with you for a short time? A No, that’s not fair to say. I just knew that I was going to be caring for the children in the short-term, in my mind. … Q And I would suggest to you that you knew that the reason why that money was coming in, was because you had been designated the person of sufficient interest. A We received money, but it was for the girls. Q Why were you getting money? A Well, I’d assume for the girls. Q And it was Social Services that was giving you the money; right? A Right.

Q And the Social Services was giving you that money, so that you and Tammy would care for the girls; right? A Right. … Q So [the younger child] wanted to be comforted? A Yes. I believe coming from a loving home and a loving parent, that children in that state, they are all searching for someone to love them. And my wife and I, we -- we expressed our love very deeply to these girls. We loved them very much. We loved them so much. Q And you loved them so much that they ended up in malnourished and dehydrated states in hospital. How were you comforting them when that happened?

A Well, I am -- I am a father, and I believe in working full-time and providing for my family. I have a strong work ethic and I do the manly things with the boys, and my wife does the woman things with the girls. That’s the way it is in our home. Q And so, that at that point, you weren’t concerned with comforting [the younger child]. You weren’t concerned with comforting [the older child]; isn’t that fair to say? A That’s not fair to say, that is a lie. Under cross-examination, he spoke in terms of medical care for the children being “our responsibility”, i.e., something he shared with his spouse.

[57] In his pre-charge submissions to the trial judge, Mr. Goforth’s trial counsel stated that “it could theoretically be left to the jury”that Mr. Goforth did not meet the test of being a person who owed a duty to the children, all the while acknowledging that Mr. Goforthhad agreed in cross-examination to being the “head of the family” and “that probably heads that off at the pass”. Although, he did notcompletely concede the point, elsewhere, with reference to the duty described in s. 215(1)(

c) of the Criminal Code, Mr. Goforth’s counselstated: THE COURT: I don’t know that you’d be able to argue successfully that [the two children] weren’t under his charge, Mr. Evanchuk. MR. EVANCHUK: No, I agree, and I don’t wish to confuse the jury on that issue. I don’t think I’d get anywhere making that argument. Idon’t intend to advance that argument. THE COURT: Okay. Thank you. [58] To reiterate, it did not matter to the Crown’s case whether the jury found Mr. Goforth owed a legal duty pursuant to s. 215(1)(a)or pursuant to s. 215(1)(

c) of the Criminal Code, or both, because the other elements of the offence remained identical under eitherscenario. [59] Furthermore, when his trial counsel addressed the jury at the close of the trial, he described Mr. Goforth in these terms: Now, Kevin gave evidence about the day to day life in the Goforth residence. And I think in cross-examination, my friend, Mr. Brûlé,referred to it as a traditional -- got Kevin to agree that it was a traditional family -- family situation. Kevin was a hardworking guy,six days a week, carpenter, working in Regina. Up for -- before breakfast, back for suppertime.

Not around the house and the children thatoften, but doing what a traditional -- traditional old school dad would do, providing. Now, this evidence by Kevin, not really challenged bythe Crown. They take no issue with -- with his work hours or his work day to day structure, and I suggest to you that that’s truthful. You also heard evidence from Kevin about the day to day life at the Goforth residence, and his interaction with the girls. He testified thatthe moment he saw them, that he loved them. He treated them with affection. Took them to all the family activities, as he would withanyone else in the family.

We heard about church every Sunday. We heard about church Christmas party. Christmas, and we -- we havephotos in the photo book. Christmas with the girls. Not looking like they’re treated differentially from the boys, but as part of the family.Birthday party, to which Kevin admitted Tammy did most of the planning for, as -​- as she would. Not -- not indicative of a parent orguardian who wants to mistreat his children. Kevin testified that the children would have mealtimes with them, supper in particular, with him on the weekdays, six days a week. Thekids were always provided food, he testified, never denied food.

Kevin loved the girls. He treated them like his own children. There hasbeen no evidence to the contrary to suggest that was not the average routine at the Goforth residence. [60] This, and other evidence, formed the basis for the trial judge’s advice to the jury that she did not think they would “have anydifficulty concluding that Kevin Goforth was a foster parent or guardian or head of family to [the older child], but that is your decision tomake”. Placed in the context of Mr.

Goforth’s testimony and his submissions to the jury, as well as the evidence the trial judge hadsummarised, I am unable to conclude the trial judge’s qualified statement on the question of fact under s. 215(1)(

a) overstated theevidence or usurped the fact-finding function of the jury. 2. Lawful excuse [61] As previously explained, to make out the charges of murder (as well as the included offence of manslaughter) and of unlawfullycausing bodily harm, the Crown was required to prove that Mr. Goforth had committed the offence described in s. 215(2) by breachingone of the duties set out in s. 215(1). For this second aspect of Mr.

Goforth’s convictions appeal, it is necessary to recall that personssubject to a duty under s. 215(1) are held criminally liable under s. 215(2) where they have failed “without lawful excuse” to perform thatduty. [62] As I understand Mr. Goforth’s argument, he alleges the trial judge erred in law or that a miscarriage of justice resulted from thetrial judge’s failure to instruct the jury on the possibility that he had a lawful excuse for his failure to provide the necessaries of life to thetwo children at issue.

To put this argument into its legal context, I will refer to R v Peterson (2005), (ON CA), 201CCC (3d) 220 (Ont CA), where Weiler J.A. summarised the elements of the offence under s. 215(2) as well as the defence of lawfulexcuse: [35] Subsection 215(2) imposes liability on an objective basis.

The offence is made out by conduct showing a marked departure fromthe conduct of a reasonably prudent person having the charge of another in circumstances where it is objectively foreseeable that failure toprovide necessaries of life would risk danger to life or permanent endangerment of the health of the person under the charge of the other.The personal characteristics of the accused, falling short of capacity to appreciate the risk, are not a relevant consideration.

The use of theword “duty” is indicative of a societal minimum that has been established and is aimed at establishing a uniform minimum level of care:R. v. Naglik, (SCC), [1993] 3 S.C.R. 122, 83 C.C.C. (3d) 526, at paras. 37, 51 and 33 respectively [see pp. 539, 546, 538C.C.C.]. [36] The objective basis of liability includes an assessment of whether the person in charge could have acted other than as he or shedid.

For example, in Naglik at para. 36 [p. 539 C.C.C.], a “crucial consideration” was that the evidence indicated the services of a publichealth nurse were made available to Naglik to help her in caring for her child, given her age, education, and lack of experience withchildren. She refused to accept any assistance. [37] The words “without lawful excuse” in s. 215(2) provide a defence and serve to prevent the punishment of the morally innocent.The obligation to provide necessaries is not absolute and may be excused, for example, where there is financial inability: Naglik, supra,and R. v.

Yuman (1910), (ON CA), 17 C.C.C. 474 (Ont. C.A.).

[63] While several cases speak to the constitutionality of the apparent reverse onus requirement of the defence of lawful excuse, fewhave addressed what Parliament meant by a lawful excuse in the context of s. 215(2) of the Criminal Code. Most commonly, courts havedescribed the defence by what it is not. For example, courts have held that lawful excuse rarely arises and does not encompass commonlaw excuses such as duress or authorisation by law (R v Holmes, (SCC), [1988] 1 SCR 914 at 947; and R v Curtis (1998), (ON CA), 123 CCC (3d) 178 at para 22 (Ont CA)).

In R v Naglik, Lamer C.J.C., writing for the minority but with nodisagreement from the majority on this point, found that a lawful excuse is not a lack of subjective awareness of the circumstances(at 146), which is essentially what Mr. Goforth alleges under this ground and elsewhere in his appeal. [64] Some assistance is also found in the court decisions addressing the defence under provisions of the Criminal Code other thans. 215(2).

In R v Taraschuk, (SCC), [1977] 1 SCR 385 at 388, Laskin C.J.C. wrote that a lawful excuse does not refer to,or tend to disprove, an element of the offence but refers to “matters which stand outside the requirements which must be met”.Justice McIntyre’s reasons in R v Holmes, which were adopted by a majority of the Court, explain how the defence of lawful excuseworks in the context of its constitutionality under s. 11(

d) of the Charter of Rights and Freedoms (at 948–949): Where, then, as in the case at bar, proof of guilt beyond a reasonable doubt is required without the benefit of any presumption before anyneed for defence arises, s. 11(

d) of the Charter has not been offended. There has been no denial of the presumption of innocence. It hasbeen overcome by proof according to law or by admissions of the accused, and the defence or excuse which is sought to be raised dependsupon that fact. If he is convicted in the face of such a defence, it is not because he has been presumed guilty or because the commission ofthe crime has not been shown, but because his excuse was rejected after proof of the commission of the offence. An accused raising such adefence or excuse is not seeking relief because of an absence of guilt.

He seeks relief despite his commission of the offence. It may be ofinterest to note that s. 17 of the Criminal Code, in defining the defence of compulsion, provides that the accused is “excused forcommitting the offence” (emphasis added). Where the offence is proved beyond a reasonable doubt, according to law, without the aid ofany presumption, I cannot conclude that the accused has been denied the benefit of the presumption of innocence only because his excusefor his commission of the offence is not accepted. … [65] The first difficulty with this ground is that Mr.

Goforth did not outright claim at trial that he had a lawful excuse for failing toperform his duty to provide the necessaries of life to the children. As noted, his defence theory was that neither he nor Ms. Goforth hadfailed to carry out their legal duty. Mr. Goforth also asserted he did not know, until the moment he took her to the hospital, that the olderchild was ill enough to require medical intervention. Both of these positions disclaim the commission of the offence under s. 215(2). To beclear about this, Mr.

Goforth’s position was that neither he nor his spouse had committed the offence under s. 215(2) of the CriminalCode. [66] Before preparing the jury instructions, the trial judge sought advice from all trial counsel on their “position with respect to eachof the accused and each of the charges before the Court”. In the subsequent pre-charge conference, Ms. Goforth’s trial counsel spoke firstand raised four scenarios he characterised as lawful excuses, but he spoke in terms of how the evidence negated the commission of theoffence under s. 215(2): THE COURT: -- the necessaries.

And is defence submitting there are any lawful excuses for this, and if so, what? MR. DEAGLE: And I guess that somewhat comes into -- I think the way I am -- I would characterize the evidence in some sense is thatwe -- we take issue with the fact that they -- the suggestion that the children were deprived of food completely. Our submission is, basedupon the evidence of all four defence witnesses, that food was available and was not -- not taken away from the children. So I guess where it comes into play for us, on behalf of Tammy Goforth, may be in relation to not providing medical attention.

And insome part, I guess the issue is, was there a requirement to take the children to a doctor. For example, if the child has a bruise, there’s norequirement to take the child to a doctor. If the child has an injury that is -- you can put a Band-Aid on, there is no requirement to take achild to a doctor. Frankly, if the child has what is depicted as a flu, there may be no requirement to take the child to a doctor. … So, essentially, the -- to put it somewhat bluntly, the lawful excuse is the medical attention is not required. And our position all along willbe that the children were not deprived of food.

They were not withheld food or fluids. And I would suggest the evidence that is filed,actually is -- is supportive of that. For example, we heard evidence of on the day in question, July 31st, [the older child] consuming milk.We have a photograph of their bedroom which appears to show a cup with a white liquid in it, I’d say consistent with milk. We have cupsand sippy cups in the room at the same time, as well.

We have pictures of the house, which show the kitchen, which show a number ofdirty dishes in the kitchen, and frankly, a soup bowl, which again seems to be consistent with the evidence of Tammy Goforth, and for thatmatter, Kevin Goforth. So it’s consistent with food being available for the children, and not being withheld, including fluids. … I think in -- in large part from the defence perspective, our -- our case is -- apart from what I just submitted, of course, also going to focusmainly on intent.

And that Tammy Goforth did not intend the consequences, the bodily harm nor the -- the death of [the older child]. I’mjust going to suggest the evidence is sort of consistent with that. She’s given explanation of exhibits. She’s given, I would suggest,common inference -- reasonable inferences that can be drawn from the exhibits and corresponding to the injuries that are depicted, whichin some sense, were also accepted by Dr. Ladham. So there’s a consistency among that evidence. All of which, I would argue, sort of iscontrary to the intent of -- to commit bodily harm or -- or death.

THE COURT: In terms of s. 215 and I’d like all counsel to kind of comment on this. But under s. 215, of course, it creates the duty in acouple of different ways -- MR. DEAGLE: Yes. THE COURT:-- that ‘A’ and ‘C’ [i.e., s. 215(1)(

a) and (c)], and to consider that this is an accurate statement of the law the Crown mustestablish beyond a reasonable doubt, the essential elements of an offence under s. 215(2), (INDISCERNIBLE) external circumstances andthe mental or fault element, the accused’s conduct must also constitute a marked departure from that of a reasonable person in the same

circumstances. Further, the Crown must establish beyond a reasonable doubt that a reasonable person would foresee the risk of bodily harm beyond the trivial or transitory in the context of dangerous conduct. MR. DEAGLE: I agree with that statement. I think any of the law I’ve seen that relates to s. 215 mention[s] the marked departure test. I think that’s consistent among the -- THE COURT: And it’s the reasonable person, it’s not Ms. Goforth.

The personal characteristics of an offender are not directly relevant to an element of the offence, do not excuse, except where they rise to the level of incapacity to appreciate the risk involved in the conduct. MR. DEAGLE: Yes. And I guess, the -- in some sense, the -- the sort of objective test that you have to consider the evidence as a whole and what the objective person, in those circumstances would -- would conclude. So I think in a lot of ways -- THE COURT: So marked departure from that of a reasonable person in the same circumstances -- MR. DEAGLE: Correct.

THE COURT: -- is what the case is generally saying, Mr. Deagle. MR. DEAGLE: Yes. THE COURT: Okay. MR. DEAGLE: And I take no issue with that. THE COURT: Okay. [ 67 ] While the trial judge did not ask the same direct question of Mr. Goforth’s trial counsel, the theme of what Mr. Goforth alleges under this ground of appeal is present in his trial counsel’s submissions to the trial judge in the pre-charge conference, which followed on the heels of the submissions of Ms. Goforth’s counsel. Nonetheless, in respect of Mr.

Goforth’s culpability, his counsel also spoke in terms of how the evidence tended to negate the actus reus and mens rea of the offence under s. 215(2) : MR. EVANCHUK: I guess, My Lady, in terms of Kevin Goforth, again like my friend, Mr. Deagle, I don’t generally take any issue with - - with my friend’s submission of the law [i.e., the submission of the prosecutor] as it relates to the -- the requisite elements of the offence. There is a little bit of a wrinkle, I think, in terms of -- in terms of Mr. Goforth and the duty in s. 215, as it relates to him and the evidence.

I don’t believe that there were some comments in whether or not Connie Garstin’s remarks could be applicable or there’s some evidence. But it doesn’t appear that there’s any adoption of the fact of that notion from either Kevin Goforth, or a form of correspondence from the Ministry of Social Services. So I think it could theoretically be left to the jury that he’s not necessarily a person -- he didn’t have knowledge of being a person of sufficient interest. However, I think head of family was put to him by Mr. Brûlé, so I think that probably heads that off at the pass, but that’s something I’m -- I’m live to.

But I’m not sure how far he gets with that. THE COURT: Well, and under s. 215, as well, he talked about, you know, caring for these children. MR. EVANCHUK: Yeah. Yeah. THE COURT: He didn’t say for how long. MR. EVANCHUK: Yeah. THE COURT: Not -- didn’t consider it necessarily to be long-term. But I guess the question is, under [ s. 215(1) (c)], provide necessaries of life to a person -- MR. EVANCHUK: Yeah. THE COURT: -- to a person under his charge. MR. EVANCHUK: Yeah, and -- and -- THE COURT: He said, “I loved those girls, I loved those boys, they were in my house, I was taking care of them”. MR. EVANCHUK: Yeah.

THE COURT: I don’t know that you’d be able to argue successfully that they weren’t under his charge, Mr. Evanchuk. MR. EVANCHUK: No, I agree, and I don’t wish to confuse the jury on that issue. I don’t think I’d get anywhere making that argument. I don’t intend to advance that argument. THE COURT: Okay. Thank you. … MR. EVANCHUK: I think that satisfies that -- that portion, My Lady. I -- I don’t wish to belabour points that my friend, Mr. Deagle made, in terms of the -- in terms of the comments. I’ve dealt with the out of -- the out of court statement.

I think, generally speaking, in terms of the fact -- the defence theory and the facts, a little bit different in terms of the situation between Kevin and Tammy, that I think it’s unchallenged by both -- by the Crown, that Kevin Goforth was an individual working six days a week. He’s not the primary caregiver, and -- and he -- he’s present primarily in the early morning and in the evening after work. I don’t think my friends take too much, that it

wasn’t -- didn’t seem to be -- challenge that point before the jury, in terms of -- so he’s not the primary caregiver. The -- I -- I will be advancing the theory that Kevin, at no time, denied -- denied food, denied fluids, denied medical care to -- to the children. That the intent is -- is also a commensurate live issue with respect to what -- what occurred in that he was present -- present for meals. There is evidence of that. I’d rely on the evidence of the children in the house, so it’s [names of two of the Goforth’s natural children redacted]. The physical evidence.

The photographs have been provided with the -- by the Crown, are corroborative of -- of the theory that will be advanced by Kevin, that there was food provided, there were fluids provided. Also, there was, I believe in evidence, cross-examination of clothes that were seized by Constable Fleece that contained what he believed to be food, whether it be dry or wet food. And on the day in question, they -- that food was not being deprived. … MR.

EVANCHUK: So -- so -- and, My Lady, generally speaking, it’s my intention to advance an argument for the -- before the jury that, at no point did Kevin Goforth restrain or otherwise impair the ability of either [child] to access food or consume food, or have access to fluids, or medical attention. And that as the, in his words, “head of household”, of the opinion that his -- his spouse was adequately looking after the necessities in terms of medical care, and that it was not required. So he’s -- he’s met the requirement in terms of the -- providing the necessities, namely medical care.

And I would -- I would take the position that with respect to the 269 allegation [i.e., of unlawfully causing bodily harm to the younger child], that being deprived necessities -- an included offence (INDISCERNIBLE). THE COURT: It is. MR. EVANCHUK: Yes, I believe no one is taking any -- I believe any issue with that, so -- as I indicated, My Lady, I will have these submissions to you forthwith, once I sort out my staff situation. THE COURT: As soon as I let you go here. MR.

EVANCHUK: As soon as you let me go, I will be able -- I will zip -- zip over to the office and -- and have something as soon as I can, My Lady. [ 68 ] As I understand his submissions to the trial judge, Mr. Goforth’s counsel identified the following as possible lawful excuses: (

a) food had been available to the children; (

b) food had not been taken away from the children; (

c) the children had been exhibiting only flu-like symptoms; and (

d) there had not been enough time to know the children required medical intervention. [ 69 ] None of these assertions amount to a lawful excuse. The assertions that food had been available and had not been taken away are denials of the actus reus of the offence. They do not lawfully excuse its commission. The assertion that the children had been exhibiting only flu-like symptoms runs counter to the overwhelming evidence of their prolonged starvation and neglect. The assertion is, at the root, a denial of the mens rea element of the offence because it suggests the Crown had failed to prove that Mr.

Goforth ought to have known that failure on his part to provide the necessaries of life would endanger the children . The assertion Mr. Goforth could not have earlier known the children required medical intervention similarly denies the commission of the offence under s. 215(2) by challenging the marked departure and objective foreseeability requirements of that offence.

As McIntyre J. held in R v Holmes , the defence of lawful excuse arises only after the Crown has proven beyond a reasonable doubt that the accused has committed the offence whereby it operates to excuse the offender from criminal liability for its commission. In short, none of the scenarios put forward by Mr. Goforth’s trial counsel met the description of lawful excuse. [ 70 ] In his factum, Mr.

Goforth relies on the decision in R v Lovett , 2017 ABQB 46 , 48 Alta LR (6th) 130, for the proposition that his belief that the children had only exhibited flu-like symptoms could constitute a lawful excuse for failing to obtain medical care for them. I do not, however, interpret R v Lovett as standing for that proposition. On the evidence in that case, the mother knew her child had been suffering and had not been improving but she still decided not to take him to a hospita

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