May 31, 2018
Hilton Gagnon, Marcotte
Appeal from an acquittal on charges of manslaughter and criminal negligence causing death. Allowed.
The appellant appeals from a judgment of the Court of Quebec acquitting the respondent, a naturopath, on charges of manslaughter and causing death by criminal negligence related to the death of a man from septic shock after being injected with a contaminated substance during a naturopathic treatment.
The respondent caused the death of a person by committing an unlawful act considered objectively dangerous by the case law, that is, the intravenous injection of a substance, in violation of the Medical Act (CQLR, c. M-9). This unlawful act is a strict liability offence and requires proof beyond a reasonable doubt that this conduct is a marked departure from that of a reasonably prudent person in the same circumstances, and that a reasonable person would have foreseen that his or her conduct risked causing bodily harm. The trial judge erred, however, by instead applying the legal standard of the objective foreseeability of death, which imposed an undue burden of proof on the appellant. The trial judge also erred by failing to find that the undisputed evidence established that the unlawful act was objectively dangerous. It appears, however, with reasonable certainty that these errors of law had a considerable influence on the verdict of acquittal for manslaughter.
Moreover, contrary to what the respondent claims, ss. 220(b), 234, and 236 of the Criminal Code (R.S.C. (1985), c. C-46) should not be declared of no force and effect. Indeed, the grounds of discrimination raised – place of residence and professional status – are not personal characteristics that could constitute analogous prohibited grounds of discrimination within the meaning of s. 15 of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, app. II, No. 44, Schedule B, Part I). Furthermore, the lack of regulation concerning naturopathy in Quebec, in conjunction with the regulations governing most health care practitioners, does not violate the respondent’s mobility rights protected under s. 6 of the Charter. The respondent’s argument that a predicate offence of manslaughter would violate the right to equality guaranteed under s. 15 of the Charter if it is not applied uniformly throughout Canada must be rejected because the culpable state of mind derives from the dangerousness of the offence, the marked departure of the behaviour from the standard, and the objective foreseeability of the consequences of the alleged act.
Finally, the exceptional circumstances in this case justify substituting the acquittal with a conviction on the charge of manslaughter. That said, only a new trial can provide an overall assessment of the evidence including the disputed and undisputed facts required to apply the proper legal standard to determine the mens rea of the criminal negligence causing death, so that a new trial is ordered on that count.
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