Inconsistent Verdicts: R v JF
On Friday the Supreme Court of Canada pronounced on R v JF,  3 SCR 215, a criminal case concerned with child abuse, manslaughter and inconsistent verdicts. The issue before the Court was whether an accused could, on the one hand, be convicted of criminal negligence for not protecting a child from physical abuse and, on the other hand, be acquitted of failure to provide the necessaries of life.
The victim was a four-year-old foster child who died in his foster home from multiple blows to the head. An examination of his body found extensive bruises, some which were caused during the night of his death and others which were older. The foster mother pleaded guilty to manslaughter after confessing to having beaten the victim. The accused, who was the child’s foster father, was charged with two counts of manslaughter by unlawful act: by criminal negligence and by failure in his duty to provide the necessaries of life.
Section 215 of the Criminal Code provides:
(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; […]
(2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies on him, to perform that duty, if […] (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 of that person to be endangered permanently;
For criminal negligence, section 219 of the Criminal Code provides:
(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.
The jury convicted the accused of manslaughter by criminal negligence, but acquitted him of manslaughter by failing to provide the necessaries of life. He appealed on the grounds that the two verdicts were inconsistent, to which the Ontario Court of Appeal agreed and ordered a retrial.
Supreme Court of Canada Chimes In
The Supreme Court of Canada split 6-1 in their decision. Writing for the majority, Justice Fish held that the two verdicts were indeed inconsistent, as both charges relied on “exactly the same failure to perform exactly the same duty,” the accused’s duty being to protect the victim against a violent spouse.
In order to attract a conviction under section 215(2), the accused’s omission had to have been a “marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanent endangerment to the health of the child” (as per R v Naglik,  3 SCR 122). Meanwhile, to be convicted under criminal negligence, the omission had to have been “a marked and substantial departure from the conduct of a reasonably prudent parent in circumstances where the accused either recognized and ran an obvious and serious risk to the life of his child, or, alternatively, gave no thought to that risk” (as per R v Tutton,  1 SCR 1392). The majority found that the actus reus of the two offences were the same (ie. the omission from protecting the victim) but that the fault element for criminal negligence was higher.
Since the jury convicted the accused of manslaughter by criminal negligence, they must have found that his actions represented a marked and substantial departure from that of a reasonably prudent parent under the circumstances. It was therefore illogical for the jury to acquit the accused for manslaughter by failure to provide the necessaries of life, as it would mean that they did not find the accused’s actions to be a marked departure from that of a reasonable prudent parent.
The Crown tried to argue that the two verdicts were not inconsistent because each was in relation to a distinct predicate offence. Criminal negligence requires the accused to show a wanton disregard for the life and safety of a person he was legally bound to protect, while a conviction for failing to provide the necessities of life requires this disregard to effectively endanger the victim’s life or permanently endanger the victim’s health. Fish J. rejected this argument, saying that such distinctions are not only abstract but also that they were not raised during trial, so the jury could not have made this distinction.
Fish J. clarified that criminal negligence is still compatible with failure to provide the necessaries of life, but only when the former is viewed as an extension of latter. He explained:
Where criminal negligence is ‘piggy-backed’ onto the alleged failure to provide necessaries of life […] the analysis may be expected to proceed in two stages. The jury would then consider whether the accused had a duty to protect the child — that is, to provide the necessaries of life — and whether the accused failed in that duty. […] The jury would then be required to decide whether the accused, in failing to provide the necessaries of life, showed a wanton or reckless disregard for hte life or safety of the child. […] If not, the jury could still find the accused guilty of failure to provide the necessaries of life, but not of criminal negligence.
However, when the jury convicts an accused person for criminal negligence but acquits them for failing to provide the necessaries of life based on the same acts or omissions, the result is necessarily inconsistent.
As far as determining the appropriate remedy, the majority chose not to follow the Ontario Court of Appeal and order a retrial, but instead set aside the accused’s conviction. They reasoned that, since the jury acquitted the accused on a lower fault standard than that of his conviction, he should be given the benefit of that acquittal, especially since the Crown never appealed the acquittal.
Justice Deschamps’s lone dissent awarded more deference to the trial judge and jury. Deschamps J. found that the verdicts were not inconsistent, and she accepted the Crown’s argument that the two predicate offences at issue have distinguishable actus reus. The actus reus of criminal negligence requires the Crown to prove that the accused had a legal duty to do something, and that the failure of this duty shows a wanton or reckless disregard for the lives or safety of others. The failure to provide the necessaries of life also requires proof of a duty, but is different from criminal negligence in that a failure of the duty must, when viewed objectively, endanger the victim’s life or permanently endanger the victim’s health.
Furthermore, Deschamps J. found that the jury was adequately charged to account for this difference between the two offences. Drawing on the trial record, she pointed out that, for the s. 215(2) predicate offence, the jury was instructed to first consider whether there was a duty to provide the victim with necessaries of life, and whether the accused’s failure in this regard represented a marked and substantial departure from what a reasonably prudent parent would do in the circumstances. This charge “was essentially identical to the charge for criminal negligence,” so therefore an answer in the affirmative would establish culpability for criminal negligence.
However, for s. 215(2) the jury had to take an additional step, which was to ask whether accused’s failure in his duty “endanger[ed] the life of [the victim, or] cause or was likely to cause his health to be endangered permanently.” In acquitting the accused of failure to provide the necessaries of life, the jury recognized a causal disconnect between the accused’s failure to uphold his parental duty and the fact that the victim’s life and health were at risk. Hence the verdicts could be viewed as consistent with each other: the jury may well have decided that the accused’s failure to protect his foster son showed a wanton or reckless disregard (enough to attract criminal negligence), but it did not sufficiently cause the endangerment of the fosters son’s life nor the permanent endangerment of his health (therefore escaping the s. 215(2) predicate offence).
Deschamps J.’s dissent, while well-reasoned, has the odd consequence of making criminal negligence a permanent appendage to the failure to provide necessaries of life. If the analysis for s. 215(2) occurs only after criminal negligence has been established, then any conviction under s. 215(2) must also be accompanied by a conviction for criminal negligence. As pointed out by the majority, this would be strange as criminal negligence has harsher penal consequences. The dissent also skirts the fact that the jury charge was flawed, as the standard for the fault element of s. 215(2) is a marked departure from a reasonably prudent parent, not a marked and substantial departure.
However, Deschamps J. writes, “had I found the verdict unreasonable, the just order would have been a new trial on both counts.” Deschamp J.’s support of a retrial seems to me more fair-minded, as the conclusion that the verdicts were inconsistent infers that a wrongful conviction was just as possible in this case as a wrongful acquittal. To uphold the acquittal while quashing the conviction shows little consideration to the jury who found the accused guilty of one of the charges.