‘Proper, but not perfect’: The SCC rules on jury instructions in R v Goforth
In R v Goforth, 2022 SCC 25 [Goforth], the Supreme Court of Canada (“SCC”) reiterated its support for the general legal principle that a trial judge’s instructions to the jury must properly convey the meaning of the charge, even if imperfect in form. The SCC reinforced the principle that substance comes before form when it comes to jury instructions, holding that the former would be sufficient.
In November 2011, Mr. Goforth (“the Accused”) and his wife became the foster parents of two young children, aged three and two, respectively. Neither child displayed any major health issues at the time. In July 2012, the older child was taken to the hospital as she was in cardiac arrest. She was severely emaciated, dehydrated, covered in bruises, and her weight was below the third percentile for comparable children. She was also in renal failure. Soon after being placed on a life support machine, she was declared brain-dead (Goforth, paras 5-7).
After the child was admitted to the hospital, the police went to the home of the Accused and his wife. The officers found the younger sibling in a similar state. She was covered in bruises, including wrap-around lesions on her wrists and ankles, was underweight, and was suffering from pneumonia, a urinary tract infection, and a large ulcer on the lower left leg. The Accused and his wife were both charged with second-degree murder (s. 235 of the Criminal Code) of the older child; and unlawfully causing bodily harm (s. 269(a)) to the younger child (unlawful act manslaughter (s. 222(5)(a)) was a lesser and included offence within this) (Goforth, paras 8-9).
To prove any of these offences, the Crown had the burden to prove that the Accused committed an unlawful act, namely the “failure to provide necessaries of life” (s. 215(2) of the Criminal Code, RSC 1985, c C-46). S.215(2) “imposes a legal duty on certain persons to provide necessaries of life to another person and sets out the corresponding offence for failure without lawful excuse to perform that duty” (Goforth, paras 9-10). It was alleged that the behaviour of the Accused and his wife amounted to a failure to provide the necessaries of life to the two children, and as a result, the aforementioned offences were made out.
At trial, the jury acquitted the Accused of second-degree murder. Still, Mr. Goforth was convicted of the lesser and included offence of unlawful act manslaughter, as well as of unlawfully causing bodily harm (Goforth, para 12).
Mr. Goforth appealed his convictions to the Saskatchewan Court of Appeal (“SKCA”), where he argued that the trial judge had erred while attempting to convey the mens rea requirements for the predicate offence under s. 215 to the jury. The majority agreed with the Accused on several grounds and ordered a new trial (Goforth, paras 12-13).
The Issue before the SCC
The Crown appealed to the SCC on several grounds:
“1. Did the trial judge err by improperly instructing the jury on the mens rea requirement for s. 215 (failure to provide necessaries of life? Specifically… by intermingling the required foreseeability standard for s. 215 with the required foreseeability standard for manslaughter or unlawfully causing bodily harm?
2. Did the trial judge err by failing to instruct the jury on the Accused’s circumstances as a secondary caregiver during the mens rea instruction for s. 215?
3. Did the trial judge err by failing to explain what is meant by a marked departure from the conduct of a reasonably prudent person in the circumstances?
4. If the trial judge erred, can the curative proviso be applied?”
The SCC’s Analysis
Citing multiple prior decisions, including R v Daley, 2007 SCC 53 [Daley] and R v Jacquard,  1 SCR 314, the majority of the SCC found that the Accused was entitled to a jury that was properly, and not necessarily perfectly, instructed (Goforth, para 20). The majority held that it is the substance of the charge given to the jury which determines whether they have been properly instructed, rather than a judge’s adherence to a prescriptive formula in giving instructions (Goforth, para 21). Quoting Justice Bastarache in Daley, the majority said:
It is important for appellate courts to keep in mind the following. The cardinal rule is that it is the general sense in which the words used must have conveyed, in all probability, to the mind of the jury that matters, and not whether a particular formula was recited by the judge. The particular words used, or the sequence followed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case (Goforth, para 21; Daley, para 30).
The idea behind allowing the trial judge some leeway when it came to formulating the exact provisions of the charge, was to allow them some flexibility to adapt to different situations (Goforth, para 22).
The majority then considered whether the trial judge had erred while instructing the jury on the mens rea requirements for s. 215. They held that while the jury charge was imperfect, a functional reading revealed that the jury had received the instructions it required and that this met the standard of “properly, not necessarily perfectly, instructed.” (Goforth, para 23).
The mens rea requirement is the same for both manslaughter and unlawfully causing bodily harm. In this case, both offences required the existence of a prior unlawful act – in this case, the crime under s. 215 (the ‘predicate offence’) , coupled with objective foresight that such an unlawful act could cause bodily harm that extended beyond trivial or transitory (Goforth, para 26).
S. 215 is a penal negligence offence which punishes conduct that is a marked departure from an objectively reasonable standard of care (Goforth, para 27). Accordingly, the Crown had two burdens in this case: firstly, to prove beyond a reasonable doubt that the Accused possessed the mens rea required for s. 215, and secondly, that the Accused also possessed the mens rea required for manslaughter and unlawfully causing bodily harm, respectively (Goforth, para 29). To find mens rea under s. 215, the Crown had to prove beyond a reasonable doubt that:
It was objectively foreseeable to a reasonable person in the circumstances of the accused, that the failure to provide food, fluids, or medical care, would lead to a risk of danger to the life, or a risk of permanent endangerment to the health, of the children, and that the accused’s conduct represented a marked departure from the conduct expected of a reasonably prudent parent, foster parent, guardian, or head of family in the circumstances [emphasis added] (Goforth, para 30).
To fulfill the mens rea requirements for manslaughter or unlawfully causing bodily harm, the Crown was required both prove the predicate offence as well as that the consequences were objectively foreseeable: (“it was objectively foreseeable, to a reasonable person in the circumstances of the accused, that the failure to provide necessaries of life to the children would lead to a risk of bodily harm which was neither trivial nor transitory [emphasis added]”) (Goforth, para 31). This standard of foreseeability – of ‘bodily harm which was neither trivial or transitory’ – is a lower one than that applied under s. 215 (‘would lead to a risk of danger to the life, or a risk of permanent endangerment to the health, of the children’). Therefore, when the higher standard under s. 215 is met, the lower standards of mens rea for manslaughter and unlawfully causing bodily harm are also fulfilled.
In the present case, the Accused argued on appeal that the trial judge instructed the jury on the lower threshold, namely foreseeability of a risk of bodily harm that was ‘neither trivial nor transitory,’ not involving ‘’a risk of danger to the life, or a risk of permanent endangerment to the health of the children’, and that this was an improper instruction that could have confused the jury. The SKCA upheld this argument. The majority of the SCC disagreed with the judgement of the SKCA. While the majority acknowledged the charge itself was imperfect, they nevertheless held that the trial judge had, in fact, correctly summarized the mens rea requirements for s. 215 in a different portion of the charge (Goforth, paras 32-35). The majority found that when read as a whole, the trial judge’s instructions “functionally conveyed the necessary legal principles.” (Goforth, para 35). The majority held that while the multiplicity of mens rea requirements had the potential to confuse the jury, the circumstances of the case left no possibility for confusion, for the following reasons:
Firstly, the trial judge provided clear instruction elsewhere in the charge, especially through the formulation of two questions. The majority held that “there is simply no reasonable possibility that any juror would have disregarded these straightforward questions and would have instead chosen to apply the lower foresight standard.” (Goforth, para 37). Secondly, the use of the word ‘further’ in the impugned mens rea would have indicated to the jury that there were other requirements at play as well (Goforth, para 38). Lastly, and perhaps more controversially, the majority held that the defence’s lack of objection to the trial instructions, although not determinative, “undermine the argument that the jury may have been misled or confused about the appropriate standard.” (Goforth, para 39).
The majority held that when read as a whole, and with a functional objective in mind, the jury was properly instructed on the law and properly placed to draw the necessary legal conclusions (Goforth, para 40).
Another issue that arose was whether the trial judge had erred in labelling the relevant circumstances of the accused as his “personal characteristics.” Personal characteristics would have been irrelevant in determining mens rea. In this case, the Accused argued that the trial judge failed to adequately instruct the jury on his circumstances as the less involved parent, while his wife and co-accused was the primary caregiver. The Crown argued this was an irrelevant personal characteristic (Goforth, paras 41-42).
The majority of the SKCA found that the Accused’s circumstances, including being away from home for work for long periods, were part of the “relevant circumstances,” and therefore should have been considered by the Trial Judge (Goforth, para 43). The minority of the SKCA held that they were mere personal characteristics that were irrelevant to the determination of mens rea (Goforth, para 44).
The majority of the SCC disagreed with both. They found that while the existence of a spousal relationship could be a relevant circumstance, the Accused’s lack of involvement in the provision of necessaries was not a circumstance in which the reasonable person needed to be placed. The majority held that the Accused had a duty to provide the necessaries of life to the children, and that he had failed to meet this standard: “None of these alleged circumstances could have possibly prevented Mr. Goforth from foreseeing the risk of harm to them…Any reasonable parent would have foreseen the danger and would have taken action.” (Goforth, paras 45-48).
The Accused also argued that the trial judge’s failure to explain the meaning of a marked departure constituted another failure to explain the charge to the jury (Goforth, para 54). The SCC disagreed and held that the circumstances of the case meant that the jury would easily be able to apply that particular standard (Goforth, paras 55-57).
Thusly, the Crown’s appeal was allowed and Mr. Goforth’s convictions were restored (Goforth, para 60).
The Minority Judgement
The minority disagreed with the majority’s reasoning. They found that the trial judge had confused the standards of mens rea on multiple occasions, and left the jury ill-equipped to understand the charge. They also disagreed with the use of the defence counsel’s failure to object, noting that the reason why such lack of objection was not determinative was precisely because it was the trial judge who was ultimately responsible for the charge (Goforth, para 65-67). Nevertheless, the minority was persuaded that “no substantial wrong or miscarriage of justice flowed from the deficient reasoning.” They found that it was “…inconceivable, given the extreme form which the failure to provide the necessaries of life took in this case, that the jury would not have found that the Crown had established the more stringent foreseeability requirement applicable to failing to provide the necessaries of life.” (Goforth, para 68). The minority recommended application of the curative proviso and allowing the appeal (Goforth, para 68).
In this case, the SCC recognised that allowing the trial judge some liberty and flexibility when framing the charges to the jury was necessary for a number of reasons. Firstly, it is impossible to draft any one version of a charge to the jury; allowing the trial judge to reformulate their words on occasion would also give them the ability to better explain the charge.
But secondly, and perhaps more importantly, the SCC recognised that juries did not exist in a vacuum; but in fact consisted of ordinary persons who possessed common sense. On multiple occasions, the judgement noted that although there were inconsistencies and inaccuracies in the charge, the overall meaning was such that the jury was not misled. The SCC thus placed great reliance on the ability of the jury to both understand and assess the situation at hand. Given the extreme nature of the factual circumstances at issue the SCC found that the jury would have undoubtedly found that the higher standard of mens rea required for s. 215 would have been met. As a result, it upheld the conviction.
The majority, however, does appear to err on one count, as noted by the minority. While they repeatedly mention the defence’s failure to object to the deficiencies of the charge at an earlier stage was not determinative, the majority places undue reliance on this failure. As the minority judgement noted, the precise reason for the reason why a failure by the defence to object is not determinative is because the final responsibility to assess whether the charge was clear and valid lies with the trial judge. To thus use a failure to object as an example of why a hypothetical trial judge’s instructions met the standard applied by the courts is, therefore, improper.