R v Javanmardi: The SCC brings (some) clarity to negligence-based offences

An elderly man with heart disease walks into a naturopath’s office hoping to improve his quality of life. After a consultation, the naturopath gives the man an intravenous cocktail of vitamins, minerals, and other nutrients, even though in the naturopath’s jurisdiction it is unlawful for naturopaths to give injections. The man has a bad reaction to the injection and within a day he is dead.

Should the naturopath face criminal liability in this case? And should the naturopath’s training and experience guide the court in assessing that liability? Those are the questions the Supreme Court of Canada (“SCC” or “the Court”) answered – answering no to the first, and yes to the second – last month in R v Javanmardi, 2019 SCC 54,  [Javanmardi].

The Facts

Mitra Javanmardi opened her naturopathic clinic in 1985 in Montreal, Quebec. She began administering shots of vitamins and other nutrients to patients in 1992, even though the provincial laws of Quebec – Medical Act, CQLR, c. M‑9, s. 31 – reserve that practice for physicians licensed by the Collège des médecins du Québec. Dr. Javanmardi has a science degree from McGill University, a PhD from a US college of naturopathic medicine, plus an addition 500 hours of further training. That training included training in safe injection practices. Although it is unlawful in Quebec for naturopaths to give injections, the practice is legal in many provinces including Ontario (full disclosure: this writer has received vitamin B12 injections from a naturopath on several occasions).

On June 12, 2008, Roger Matern attended at Dr. Javanmardi’s office, frustrated with his current medical care for heart disease and hoping to improve his quality of life. After an hour-long consultation, Dr. Javanmardi recommended a course of treatment that included nutrient injections to begin at a later date. Mr. Matern wanted to begin the nutrient therapy right away, however, and Dr. Javanmardi obliged. According to the Court’s records, Mr. Matern began to feel ill almost immediately after the injection began. Although Mr. Matern said he was feeling hot and nauseated, Dr. Javanmardi’s examination of his vital signs revealed no fever or any other abnormality. Mr. Matern did not want to go to the hospital, and he went home with Dr. Javanmardi’s advice to stay hydrated and to go to the hospital if that was not possible.

During that night Mr. Matern’s daughter called an ambulance for her father out of concern for his worsening symptoms.  Not long after his arrival at hospital, Mr. Matern died of endotoxic shock caused by a contaminated nutrient vial used by Dr. Javanmardi in the injection. Dr. Javanmardi was charged with criminal negligence causing death and unlawful act manslaughter for having administered the injection.

Legal background

The sections of the, The Criminal Code, R.S.C. 1985, c. C-46, provisions defining criminal negligence read as follows:

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.

This offence, when it causes the death of a person,  carries a maximum life sentence (with a minimum prison term of 4 years if the offence involves a firearm) under s 220 of the Criminal Code.

The sections of the Criminal Code defining unlawful act manslaughter read as follows:

222 (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
[. . .](4) Culpable homicide is murder or manslaughter or infanticide.
(5) A person commits culpable homicide when he causes the death of a human being,
(a)   by means of an unlawful act;
[…]234 Culpable homicide that is not murder or infanticide is manslaughter.

In other words, a person commits unlawful act manslaughter when, in committing one unlawful  act (the predicate offence) they cause the death of another person.

Negligence-based offences, or “objective mens rea” offences, like unlawful act manslaughter and criminal negligence causing death, only require an accused to have acted in a way – to one degree or another – such that a reasonable person would have foreseen the risks inherent in their actions and done something to avoid these risks. There remains some controversy and lack of clarity, though, around just how far a person must depart from this reasonable person standard in order to be found criminally liable and how much the circumstances should dictate what that reasonable person standard is. Javanmardi largely turns on the latter legal issue.

On the question of degree of departure from the standard of care, some objective mens rea offences like dangerous driving require a “marked departure” from what a reasonable person would do (as in R v Roy, 2012 SCC 26). Others, like criminal negligence causing death, require a greater “marked and substantial departure” from what the reasonable person would do (see, for instance, R v Tutton, [1989] 1 SCR 1392).

Then there is the question of how much the specific circumstances of a sequence of events should define what the “reasonable person” would do. In R v Creighton, [1993] 3 SCR 3, [Creighton] a case where one recreational drug user injected another leading to the latter’s untimely death, the Court ruled that as some activities carry greater risks than others, the “reasonable person” would ensure that they had the skills and experience necessary to undertake those activities safely. At the same time, the Court ruled in that case that there is not a “reasonable recreational IV drug user” standard where there may be, say, a “reasonable experienced hunter” standard in a case of a hunting accident resulting in unintended death (as the Quebec Court of Appeal applied Creighton in R v Gendreau).

In R v DeSousa, [1992] 2 SCR 944, [DeSousa] the Court confirmed that in cases of unlawful act manslaughter the Crown must make out the actus reus and the mens rea of both the underlying predicate unlawful act, as well as of the offence directly charged. In provincial offences of strict liability, such as the one that lead to the charges against Dr. Javanmardi, have a mens rea of a marked departure from the reasonable person standard.

There is some controversy, as well, in cases where unlawful act manslaughter is charged, as to whether the objective dangerousness of the unlawful act on its own overwhelms any requirement to inquire into the standard of care. The SCC in Creighton, however, ruled that the dangerousness of the act goes to the mens rea component of the offence, not the actus reus. In DeSousa the SCC somewhat muddied the waters in ruling that the objective dangerous of the illegal act was an element of the offence. The Court was clear in DeSousa, though, that the objective dangerousness was part of the “mental element” of the offence, not the actus.

Procedural History

At trial, the judge heard evidence of Dr. Javanmardi’s experience and training as well as expert testimony about how her conduct strictly followed safety protocols that are in place in jurisdictions where naturopaths are allowed to give injections. The trial judge found that because Dr. Javanmardi exercised appropriate skill and experience with respect to the risky and unlawful activity of giving Mr. Matern an injection, her conduct was neither a “marked” nor a “marked and substantial” departure from the standard of the “reasonable naturopath” and thus found that the Crown had not met its case on the predicate offence. Dr. Javanmardi was acquitted of both charges at trial.

On appeal, the Quebec Court of Appeal (“QCCA”) ruled that the trial court erred in considering Dr. Javanmardi’s training and experience in giving injections and that any objectively dangerous unlawful act is a marked departure from the reasonable person standard. The QCCA overturned the trial court acquittals, ordering a new trial on the criminal negligence causing death charge and making a finding of guilt on the unlawful act manslaughter charge.

The Majority at the SCC

A 5-2 majority of the Court scolded the QCCA for failing to incorporate Dr. Javanmardi’s experience and training into assessing whether she strayed from the actions of a reasonable person. Writing for the majority, Abella J found that there is in fact a “reasonably prudent naturopath” standard of care.

The majority also reflected on the trial court’s treatment of expert testimony showing that Dr. Javanmardi had complied with the highest standards required of naturopaths anywhere in Canada in her preparation for and administration of the injections. The majority held that the trial court was correct in finding that Dr. Javanmardi did not stray from the standard of the reasonably prudent naturopath to either a “marked” or “marked and substantial” degree, and held that the QCCA had improperly substituted their own findings of fact for that of the trial court. 

The Court further found that the QCCA erred by considering the “objective dangerousness” of Ms Javanmardi’s unlawful acts on the manslaughter charge as a standalone element of the actus reus of the offence. Instead, they ruled, the elements of the offence are those as laid out in the bare text of the Criminal Code – proof beyond a reasonable doubt that the accused committed an unlawful act that caused death – and that the risks and the reasonableness of the response to those risks are solely part of the mens rea analysis.

The Dissent

Writing for the dissent, Wagner CJ held that Dr. Javanmardi’s conduct was a  “marked departure”  from the standard of care and that the trial court’s error in finding otherwise flowed from a misapprehension of the required actus reus for unlawful act manslaughter.

Wagner CJ argues from DeSousa (and to a lesser extent Creighton) that these cases import the “objective dangerousness” of an unlawful act into the two elements of the actus reus defined in statute – 1)the unlawful act; 2) that causes death. In so doing, he cites the Court in DeSouza at 961 discussing the objective dangerousness as a separate element of the offence, but does not speak to the Court’s framing at 958 that “objective dangerousness” is part of the “mental element” of the offence rather than the actus. From that starting point, the Chief Justice reasons that once the actus reus of objective dangerous is established, that the underlying predicate offence is therefore established, that Dr. Javanmardi’s conduct did not meet a heightened standard of care based on the objective dangerousness of the illegal acts, and that a conviction should follow.

Analysis

This decision brings some clarity to the law. It tells us that the objective dangerousness of an unlawful act leading to death is not an independent . It also brings clarity to the law to establish some benchmark for the standard of care required for naturopaths in a criminal context.

There remains, however, an extraordinary lack of clarity regarding what constitutes a “marked” departure from the reasonable person standard versus a “marked and substantial” departure versus a mere departure from that standard. The Court in this case did not even attempt to establish firm contours for these concepts. There are real-world consequences for this confusion.

There has been public controversy lately in cities like Toronto, where the pedestrian and cyclist death toll arising from careless driving has attracted much scrutiny. Among the criticisms that have been levelled at law enforcement officials is that police tend to under-charge driver accused, and that police fail to lay negligence-related criminal charges when driver carelessness leads to death or injury. It is at least arguable that the confusion around the concepts of  simple departure from the standard of care, “marked departure” and “marked and substantial departure” discourages police from charging drivers under the Criminal Code instead leading them to opt for the clearer standard (and much lesser penalties) of charges under provincial highway traffic statutes. Conversely, it may also lead intravenous recreational drug users to hesitate in seeking emergency services for their friends when they have medical crises for fear of running afoul of unclear legal definitions and facing potential life sentences (the Good Samaritan Drug Overdoes Act,  SC 2017, c 4 shields users who share drugs and seek medical care for friends suffering overdoses from possession and trafficking charges, but not from more-serious criminal offences).

Although it is reasonable that absolute clarity will be evasive – so much turns on the specific facts regarding any given accused’s acts and omissions – the Court’s ongoing reluctance to provide at least clearer indicia around just how far one must stray from the reasonable person standard in order to attract criminal liability both erodes public confidence in the administration of justice and puts lives at risk.