November 07, 2017
500-10-005795-156; 500-10-005796-154; 500-10-005798-150
500-10-006100-166; 500-10-006099-160; 500-10-006104-168
Morissette, Healy, Ruel
Appeal from convictions and application for leave to appeal from sentences. Dismissed.
During a personal growth seminar, the appellants organized a sweat lodge. By the end, two of the participants were suffering from severe heat stroke causing significant, and in one case fatal, bodily harm. The trial judge convicted the appellants on one count of criminal negligence causing death and one count of criminal negligence causing bodily harm. The appellants submit that the judge erred in finding that their conduct showed a marked and substantial departure from the standard of reasonable conduct of a reasonable person in the same circumstances. The appellant Fréchette also argues that the trial judge erred in law in rejecting a defence of consent, whereas the appellants Fontaine and Duclos submit that the trial judge erred in rejecting a defence of mistake.
After correctly applying the proper definition of criminal negligence, the trial judge committed no error in finding beyond reasonable doubt, on the whole of the evidence, that the manner in which the sweat lodge was conducted was inherently dangerous. Her conclusion that the conduct of the appellants showed a marked and substantial departure from reasonable conduct because a reasonable person in the same circumstances would have foreseen the risk of bodily harm in such conduct conforms to established principles of fault in criminal negligence matters. The defences raised by the appellants cannot be accepted. The judge carefully restricted her findings of guilt to the conduct of the appellants and did not base her findings on the consequences of the sweat lodge. She also rightly concluded that the conduct of the appellants was a substantial cause of the harm suffered by the victims, as activities that took place the previous day can in no way be construed as an intervening cause. The judge’s rejection of the defence of mistake makes clear that the appellants’ mistaken belief in the wisdom of the teachings they followed, if there was such a belief, in no way diminished the conclusion that their conduct in the sweat lodge was objectively dangerous to the lives and safety of others and constituted a fault. In so concluding, the trial judge implicitly rejected that the appellants’ mistaken belief was reasonable. There is no basis to interfere with that conclusion. Finally, although she should not have rejected the defence of consent on the basis of s. 14 of the Criminal Code (R.S.C. 1985, c. C-46) and the principle set out in R. v. Jobidon (S.C. Can, 1991-09-26), SOQUIJ AZ-91111093, J.E. 91-1493,  2 S.C.R. 714, the fact remains that, even if the consent is in itself negligent, it is not inconsistent with criminal negligence in the conduct of any other person to whom the consent is given and, furthermore, that even if consent applied in a case of criminal negligence, it must be concluded that it was not informed in this case since the participants had no information on how the sweat lodge would proceed. As for the sentences, not only are they within an acceptable range, they are arguably lenient. Moreover, there is no error of principle or failure to consider an objective and relevant matter of fact. An appeal in this respect would have no chance of success.
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