For a conviction of criminal negligence causing death, the Crown must prove that the act caused someone’s death. In this case, the act was unlawfully introducing an intravenous injection. A fault element must be proven; the accused must show wanton or reckless disregard for the life or safety of other persons, and the Crown must show a marked and substantial departure from the conduct of a reasonable person in the accused’s circumstances.
Unlawful act manslaughter is an unlawful act that causes death, and is similar to criminal negligence causing death but applies to acts that are prohibited by law, such as a naturopath performing injections. The underlying unlawful act is termed the predicate offence, and in this case was the injection that was unlawful under Quebec law, where naturopathy is not regulated.
Under s. 222(5) of the Criminal Code, the actus reus of unlawful act manslaughter requires the Crown to prove that the accused committed an unlawful act and that the unlawful act caused death. The fault element for the predicate offence must be read as a marked departure from the standard expected of a reasonable person in the circumstances, said the majority. In today’s judgement, the court found that the accused’s conduct had met that reasonableness standard.
Justice Rosalie Abella, with Justices Michael Moldaver, Andromache Karakatsanis, Suzanne Côté and Russell Brown, also found it was appropriate to consider the personal characteristics of an accused – i.e., her training, experience and qualifications – in a criminal negligence case.
“The court has emphasized that personal characteristics of the actor, or accused, in a penal negligence case can be relevant, or can assist in determining whether the person is guilty,” says Anil Kapoor of Kapoor Barristers LLP in Toronto, who acted for the Criminal Lawyers’ Association in the case.