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R v Javanmardi - Caitlin Hentig

Facts:

The accused, Javanmardi, has a naturopathic clinic in Quebec and Roger Matern was a new patient. Matern was 84 years old and had heart disease. Matern wanted to try an alternative form of treatment as other methods were not satisfactory for him in the past. Javanmardi used a nutrient solution in an intravenous injection for Matern who experienced immediate side effects: he felt hot and nauseous. Even though Matern felt unwell, he refused to go to the hospital. Matern’s daughter later took him to the hospital as his condition did not improve, at which point doctors discovered Matern was suffering from endotoxic shock. Matern died of this condition. Javanmardi was charged with criminal negligence causing death under section 220 of the Criminal Code as well as manslaughter (sections 234 and 236 of the CC). At trial, she was acquitted of both offences.

The Court of Appeal, however, set aside both acquittals, explaining that the intravenous injection was objectively dangerous and Javanmardi exhibited a marked departure from a reasonable person. The Court of Appeal ordered a new trial in regard to criminal negligence, and convicted Javanmardi of unlawful act manslaughter.


Issues:

Whether administering an injection to another individual is objectively dangerous.

Whether the experience of the person undertaking this act is relevant.

Whether Javanmardi exhibited a marked departure from the standard expected of a reasonable person in similar circumstances.


Analysis (Majority):

For the actus reus of criminal negligence causing death, it is necessary that the accused undertook an act (or did not do something that he/she had a duty to do) and the act or failing to act caused death. The fault element is wanton or reckless disregard for other peoples’ lives or safety, which is measured on a reasonable person standard. The question is: to what extent did the accused depart from a reasonable person in similar circumstances? In criminal negligence causing death, the departure must be marked and substantial.


The majority makes it clear that the Crown must prove that the accused acted, or failed to execute their legal duty, and the act or failure to act caused the death of the victim. As well, the Crown must demonstrate that the accused’s actions were a marked and substantial departure from the conduct that a reasonable person would exhibit in the circumstances facing the accused.

For unlawful act manslaughter, the Crown must prove that the accused committed an unlawful act and that unlawful act caused death (here, that is Javanmardi injecting the contaminated solution into Matern). For the actus reus of unlawful act manslaughter, the Crown must prove beyond a reasonable doubt that the accused committed an unlawful act that resulted in death. The majority makes it clear that “objective dangerousness” is not necessary to consider separately as a distinct element. Objective foreseeability of the risk of bodily harm that is not trivial or transitory is the fault element for this offence, as well as the fault element for the unlawful act.


The standard of the reasonable person in the circumstances of the accused is “activity-sensitive,” meaning that the standard is modified depending on the activity the accused was partaking in. The nature of the activity is important (in this case, the majority notes that the standard is the reasonably prudent naturopath in the accused’s circumstances). The majority concludes that the Court of Appeal erred in overturning Javanmardi’s acquittal.


Analysis (Dissent):

The dissent holds that performing an injection on another person is objectively dangerous, and as such, the trial judge made an error of law that warrants a new trial. For unlawful act manslaughter, the dissent makes it clear that the act must be unlawful and objectively dangerous (a reasonable person would know that there is a risk of bodily harm).

Like the majority, the dissent makes it evident that personal characteristics of the accused like age and education are not to be factored into the consideration of the reasonable person standard. However, the dissent parts with the majority by discounting a consideration of Javanmardi’s training and prefers the standard of a reasonably prudent person in the circumstances the accused faced.


The dissent maintains that the act was objectively dangerous and Javanmardi’s level of experience does not matter. The dissent concludes that the trial judge made numerous errors that makes it necessary for a new trial to be held for both charges. The dissent states that Javanmardi’s actions were a marked departure from the standard of a reasonable person.


Ratio:

The majority makes it clear that the appropriate test for the fault element of unlawful act manslaughter is objective foreseeability of a risk of bodily harm that is not trivial nor transitory (as opposed to risk of death, which is what the trial judge stated, and the majority of the Supreme Court of Canada makes it clear that risk of bodily harm is the correct measurement, not death). Further, the majority clarifies that the objective dangerousness of an act does not need to be considered separately, as this can confuse jurors and result in errors.

Conclusion (Majority):

Javanmardi’s appeals were both allowed by the majority and her acquittals reinstated.


Opinion:

Of the two judgments, I prefer the majority’s. It makes sense to consider the accused’s training where relevant rather than disregarding it and claiming it as not important. I wish that the court had clarified what the difference is between a marked departure and a marked and substantial departure. The majority made it clear that it was unnecessary to differentiate the two standards in this appeal, however I believe clarification will likely be necessary at some point. As well, the majority highlighting that the activity matters in the analysis makes sense: in this case, a reasonably prudent naturopath in the accused’s circumstances.



R v Javanmardi 2019 SCC 54.

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Robson Crim is committed to criminal law education at Robson Hall & to public legal education; Richard Jochelson, Amar Khoday, David Ireland & David Milward reflect on new Canadian criminal law developments.

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