Supreme Court Judgments

R. v. Tutton, [1989] 1 S.C.R. 1392

 

Her Majesty The Queen    Appellant

 

v.

 

Arthur Thomas Tutton   Respondent

 

and

 

Carol Anne Tutton         Respondent

 

indexed as:  r. v. tutton

 

File No.:  19284.

 

1987:  November 10; 1989:  June 8.

 

Present:  Dickson C.J. and Beetz*, Estey*, McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux‑Dubé JJ.

 

on appeal from the court of appeal for ontario

 

    Criminal law -- Criminal negligence -- Necessaries of life ‑‑ Manslaughter -- Diabetic child dying after insulin withdrawn by parents ‑‑ Parents' action motivated by belief that son cured by Divine intervention ‑‑ Belief in faith healing part of parents' religious convictions -- Whether or not parents guilty of causing death through criminal negligence -- Whether or not objective standard or subjective standard to be used in determining if wanton or reckless disregard for life or safety of others -- Criminal Code, R.S.C. 1970, c. C-34, ss. 197(1), (2), 202(1), 205(1), (2), (3), (4), (5), 219.

 

    Respondents were parents of a five‑year‑old diabetic.  They believed in faith healing but their religious convictions did not prevent them from seeking and acting on medical advice or from taking medicines.  As the result of the intentional withholding of prescribed insulin upon the belief that the child had been miraculously cured, the child died.

 

    Respondents were charged with causing their son's death by criminal negligence in that they denied him the necessaries of life without lawful excuse and thereby committed manslaughter.  They raised the defence of an honest although mistaken belief in the existence of a circumstance which would render their conduct non‑culpable.  Respondents were convicted of manslaughter and appealed to the Court of Appeal which set aside the convictions and directed new trials.  This appeal was taken by leave.

 

    Held:  The appeal should be dismissed.

 

    Per Dickson C.J. and Wilson and La Forest JJ.:  The imposition of criminal liability in the absence of proof of a blameworthy state of mind, either as an inference from the nature of the act committed or by other evidence, does not sit comfortably with the principles of penal liability and fundamental justice.  A serious criminal offence, absent clear statutory language and purpose to the contrary, should not be interpreted as an absolute liability offence.  Rather, the presumption should be in favour of some degree of mental blameworthiness if the text and purpose can support such an interpretation.

 

    Section 202  of the Criminal Code  is notorious in its ambiguity; its interpretation depends on which words are emphasized.  Given its fundamental ambiguity, it should be given the interpretation most consonant not only with its text and purpose but also, where possible, with the broader concepts and principles of the criminal law.

 

    The phrase "wanton or reckless disregard for the lives or safety of other persons" signifies more than gross negligence in the objective sense.  It requires some degree of awareness or advertence to the threat to the lives or safety of others or alternatively a wilful blindness to that threat which is culpable in light of the gravity of the risk assumed.

 

    Conduct that displays a wanton or reckless disregard for the lives or safety of others will constitute the actus reus of the offence under s. 202 and be prima facie evidence of the accused's blameworthy state of mind.  A person functioning with normal faculties of awareness and engaging in a grave departure from the norm can be assumed to be either aware of the risk or wilfully blind to it.  Proof of the conduct will cast an evidentiary burden on the accused to explain why the inference should not be drawn.

 

    Malice or intent in the sense of a mind directed to a purpose is not an element of s. 202.  The fact that an accused may desire or calculate that his purpose can be achieved without the realization of the risk does not relieve the accused of liability under s. 202 if he either adverted to or became aware of the risk or closed his eyes to the reality of it.

 

    This Court has established that the criminal negligence prohibited under s. 202 is advertent negligence.  The case for the adoption of an objective standard of liability is not strong enough to justify a departure from established principles.  Before overruling a previous decision, the Court should consider the introduction of the Charter, the alteration of a precedent in later authorities, the creation of uncertainty by the continued existence of the precedent and whether overturning the precedent will expand the range of criminal liability and work to the detriment of the accused.  A departure from established principles is not justified in this case.

 

    Proof of the mental element of advertence to the risk or wilful blindness to the risk will not undermine the policy objectives of s. 202.  The subjective test would at most offer protection for those who due to some peculiarity or unexpected accident commit conduct which, although wanton or reckless with respect to the lives and safety of others, can be explained as inconsistent with any degree of awareness of or wilful blindness to such a risk.

 

    A subjective interpretation of s. 202 does not render superfluous the role of manslaughter within the scheme of the Code's homicide provisions.  The murder provisions will in general be available only if a higher degree of intent is proven than awareness of or wilful disregard of a risk to the lives and safety of others.

    Constitutional issues did not arise in this case, and constitutional considerations would not be precluded if a case involving constitutionality were to arise.

 

    Per McIntyre and L'Heureux‑Dubé JJ.:  An objective test must be used in determining criminal negligence.  It is the conduct of the accused, not his intention or mental state, which is examined.  No distinction should be made between any acts of commission or omission.  Section 202 clearly applies to a person who is negligent in doing anything or in omitting to do anything that is his duty and shows a wanton or reckless disregard for the lives or safety of others.

 

    Negligence is a factor that may lead to criminal liability.  It connotes the opposite of thought‑directed action and precludes the element of positive intent to achieve a given result.  Section 202, therefore, restrains conduct and its results; it punishes the consequence of mindless action and not the state of mind.

 

    The application of the objective test under s. 202 may not be made in a vacuum.  The surrounding circumstances and the accused's perception of those facts must be considered in order to determine whether or not his conduct was reasonable.  Where an offence rests on the concept of negligence, honestly held belief in circumstances which would afford a defence must, to be effective, be reasonably held.

 

    Here, the jury should consider respondents' belief that their son had been cured by Divine intervention in light of the whole background of the case in order to determine if it was honest and reasonable.  The jury would then have to determine if their conduct represented a marked and significant departure from the standard to be observed by reasonably prudent parents.

 

    Per Lamer J.:  The reasons of McIntyre J. were agreed with, subject to certain considerations.  Firstly, the application of the objective norm in s. 202  of the Criminal Code  must make generous allowance for factors particular to the accused such as youth, mental development and education.  Further, Parliament did not determine the nature of the negligence required to ground criminal liability when enacting s. 202 but merely defined the expression "criminal negligence" wherever used in the Code.  Finally, the constitutionality of s. 205(5)(b) was not in issue in this case.  Assuming without now deciding that it is a principle of fundamental justice that knowledge of a likely risk or deliberate ignorance thereof (foresight or wilful blindness) is an essential element of the offence of manslaughter, the issue as to whether proof of the substituted element of "criminal negligence" as defined by Parliament and interpreted by this Court satisfies the test set out in R. v. Vaillancourt, [1987] 2 S.C.R. 636, does not arise.  This constitutional consideration is not to be precluded by concurrence in McIntyre J.'s decision.

 

Cases Cited

 

By Wilson J.

 

    Considered: R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299; O'Grady v. Sparling, [1960] S.C.R. 804; Arthurs v. The Queen, [1974] S.C.R. 287; referred to: Beaver v. The Queen, [1957] S.C.R. 531; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; Sansregret v. The Queen, [1985] 1 S.C.R. 570; R. v. Robertson, [1987] 1 S.C.R. 918; R. v. Paré, [1987] 2 S.C.R. 618;  Mann v. The Queen, [1966] S.C.R. 238; Binus v. The Queen, [1967] S.C.R. 594; Peda v. The Queen, [1969] S.C.R. 905; Commissioner of Police of the Metropolis v. Caldwell, [1982] A.C. 341; R. v. Lawrence, [1982] A.C. 510; Leblanc v. The Queen, [1977] 1 S.C.R. 339; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Sharp (1984), 12 C.C.C. (3d) 428; R. v. Vasil, [1981] 1 S.C.R. 469; R. v. Hill, [1986] 1 S.C.R. 313; R. v. Quin, [1988] 2 S.C.R. 825; R. v. Stevens, [1988] 1 S.C.R. 1153.

 

By McIntyre J.

 

    Distinguished: Sansregret v. The Queen, [1985] 1 S.C.R. 570; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; referred to: R. v. Waite (1986), 28 C.C.C. (3d) 326, aff'd [1989] 1 S.C.R. 000.

 

By Lamer J.

 

    Referred to: R. v. Vaillancourt, [1987] 2 S.C.R. 636.

 

Statutes and Regulations Cited

 

Criminal Code, R.S.C. 1970, c. C‑34, ss. 197(1)(a), (2)(a), 202(1), (2), 203, 204, 205(1), (2), (3), (4), (5), 212(a), (b), (c), 213, 219, 233.

 

Authors Cited

 

Colvin, Eric.  "Recklessness and Criminal Negligence" (1982), 32 U. of T. L.J. 345.

 

Colvin, Eric.  Principles of Criminal Law.  Toronto:  Carswells, 1986.

 

Fletcher, George P.  "The Theory of Criminal Negligence:  A Comparative Analysis," 119 U. Pa. L.R. 401 (1971).

 

Fletcher, George P.  Rethinking Criminal Law.  Boston:  Little, Brown, 1978.

 

Hart, H. L. A.  "Negligence, Mens Rea and Criminal Responsibility," in Oxford Essays in Jurisprudence.  Edited by A. G. Guest.  London:  Oxford University Press, 1961.

 

O'Hearn, P. J. T.  "Criminal Negligence:  An Analysis in Depth" (1964‑65), 7 Crim. L.Q. 27.

 

Pickard, Toni.  "Culpable Mistakes and Rape:  Relating Mens Rea to the Crime" (1980), 30 U. of T. L.J. 75.

 

Stalker, Anne.  "Can George Fletcher Help Solve The Problem of Criminal Negligence" (1982), 7 Queens L.J. 274.

 

Stuart, Don.  Canadian Criminal Law:  A Treatise, 2nd ed.  Toronto:  Carswells, 1987.

 

Williams, Glanville.  Criminal Law:  The General Part, 2nd ed. London:  Stevens & Sons, 1961.

 

    APPEAL from a judgment of the Ontario Court of Appeal (1985), 18 C.C.C. (3d) 328, setting aside convictions by Salhany Co. Ct. J. sitting with jury and ordering a new trial.  Appeal dismissed.

 

    W. J. Blacklock and Kenneth L. Campbell, for the appellant.

 

    Andrew Kerekes, for the respondent Arthur Thomas Tutton.

 

    Irwin Koziebrocki, for the respondent Carol Anne Tutton.

 

//Wilson J.//

 

    The judgment of Dickson C.J. and Wilson and La Forest JJ. was delivered by

 

    WILSON J. -- I have had the benefit of the reasons of my colleagues Justices McIntyre and Lamer and I agree with them that the appeal should be dismissed and a new trial ordered because the trial judge's charge failed to make clear to the jury that the Crown had the burden to prove all the elements of the offence of manslaughter by criminal negligence.  I do not, however, agree with my colleagues' conclusion that criminal negligence under s. 202 of the Criminal Code, R.S.C. 1970, c. C-34, consists only of conduct in breach of an objective standard and does not require the Crown to prove that the accused had any degree of guilty knowledge.  I also have reservations concerning the approach my colleagues suggest is available in order to relieve against the harshness of the objective standard of liability which they find in s. 202 and to ensure that the morally innocent are not punished for the commission of serious criminal offences committed through criminal negligence.

 

    The facts and the judgments below are fully set out in the judgment of my colleague McIntyre J.  I wish only to emphasize two points.  The respondents' defence in this case centred around their claim of honest but mistaken belief as to the nature of their son's condition.  Although the respondents were aware that their son was a diabetic who needed regular insulin injections, they claimed that because of their religious convictions they sincerely believed that he had been cured by divine intervention and were unaware of the serious nature of his illness following the withdrawal of insulin. For example, in a statement provided to the police shortly after her son's death from the complications of diabetic hyperglycemia the respondent Carol Anne Tutton stated:

 

Complete faith in Jesus and obedience to the word of God is the reason for our decision to cease giving Chris insulin.  Since I have accepted Jesus as my personal Saviour and Lord.  He has revealed himself to me in vision and spoke in words of his own that Christopher is healed and further that complete faith in Him not man's doctrine or shall I say the world's teachings will bring forth the manifestation of this healing.  Standing on the promises of God and His holy Word 100%, Wednesday, October 14, 1981 I did not administer Christopher insulin.  Thursday and Wednesday Christopher ate, played normally although Thursday evening he became sick to his stomach.  Friday I kept him home from school and he kept liquids in his stomach.  Saturday morning until approximately 1:00 PM he was resting comfortably.  I left him to make myself a sandwich about five perhaps ten minutes, rechecked him and found him to be not breathing.  My husband administered mouth to mouth resuscitation until the police department arrived about five minutes later.

 

    The second point which I wish to emphasize is that the Ontario Court of Appeal ((1985), 18 C.C.C. (3d) 328) would not have applied an objective standard of liability in this case.  Dubin J.A. stated at p. 345:

 

    I do not think, however, that a loving and caring parent who omits to seek medical assistance because of the honest but mistaken belief that his or her child was not in need of such assistance should be found to have shown a wanton or reckless disregard for its life or safety merely because it can be said that reasonable parents would have responded otherwise, or even that in omitting to seek medical assistance, there was a marked and substantial departure from the standard of care of reasonable parents.  In such a case, I think a distinction should be made between acts of commission and acts of omission and, in the latter case, a subjective test should be used.

 

The Court of Appeal concluded that the trial judge erred in instructing the jury that no mens rea was required for the crime of manslaughter by means of criminal negligence.  Dubin J.A. stated at pp. 349-50:

 

    In this case, from the portion of the judge's charge which I have reproduced above, the jury could not have helped but be under the impression that a departure from the standard of care of reasonable parents constituted a wanton or reckless disregard for the life or safety of Christopher.  Throughout, the test given was purely an objective one.  In the portion of the charge that I have reproduced, no other definition of wanton or reckless was provided to the jury.

 

    In my opinion, for a conviction of manslaughter in this case, the jury had to be satisfied that the appellants, in failing to administer insulin and/or to seek timely medical assistance, knew that there was a risk to the life or safety of Christopher and unjustifiably took that risk, or closed their minds to any such risk out of a disregard for his life or safety.  It would have been open to the jury in this case to conclude, notwithstanding the protestations of the parents, that they knew that Christopher had not been cured, particularly having regard to what had transpired the year before, and that they knew that there was a risk of harm in their failure to continue the administration of insulin.

 

    It would also have been open to the jury to reject the parents' testimony as to the child's condition following the withdrawal of insulin, and to conclude that it was apparent to them that he needed medical assistance at that time.

 

    Thus, in considering the state of mind of the appellants, the jury were entitled to take into consideration all the evidence.  What reasonable parents might have done under the circumstances is only relevant in determining the state of mind of the appellants.  But unless they were satisfied that the parents actually knew of the risk of harm, or that they completely closed their minds to it out of a disregard for the life or safety of Christopher, the jury could not convict of manslaughter.

 

    For convenience, I reproduce here the relevant sections of the Criminal Code :

 

    197.  (1)  Every one is under a legal duty

 

(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;

 

                                                                          . . .

 

    (2)  Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies upon him, to perform that duty, if

 

(a) with respect to a duty imposed by paragraph (1)(a) or (b),

 

(i) the person to whom the duty is owed is in destitute or necessitous circumstances, or

 

(ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently; or

 

                                                                          . . .

 

    202. (1)  Every one is criminally negligent who

 

(a)  in doing anything, or

 

(b)  in omitting to do anything that it is his duty to do,

 

shows wanton or reckless disregard for the lives or safety of other persons.

 

    205. (1)  A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

 

    (2) Homicide is culpable or not culpable.

 

    (3) Homicide that is not culpable is not an offence.

 

    (4) Culpable homicide is murder or manslaughter or infanticide.

 

    (5) A person commits culpable homicide when he causes the death of a human being,

 

(a) by means of an unlawful act,

 

(b) by criminal negligence,

 

(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death, or

 

(d) by wilfully frightening that human being, in the case of a child or sick person.

 

                                                                          . . .

 

    219.  Every one who commits manslaughter is guilty of an indictable offence and is liable to imprisonment for life.

 

    I wish to deal first with the implications of my colleagues' approach in this case.  By concluding that s. 202  of the Criminal Code  prohibits conduct and the consequences of mindless action absent any blameworthy state of mind, they have, in effect, held that the crime of criminal negligence is an absolute liability offence.  Conviction follows upon proof of conduct which reveals a marked and substantial departure from the standard expected of a reasonably prudent person in the circumstances regardless of what was actually in the accused's mind at the time the act was committed.

 

    I take as the point of commencement the following statement of Justice Dickson (as he then was) in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, at pp. 1309-10:

 

Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them.  Mere negligence is excluded from the concept of the mental element required for conviction. Within the context of a criminal prosecution a person who fails to make such enquiries as a reasonable and prudent person would make, or who fails to know facts he should have known, is innocent in the eyes of the law.

 

    In sharp contrast, "absolute liability" entails conviction on proof merely that the defendant committed the prohibited act constituting the actus reus of the offence.  There is no relevant mental element. It is no defence that the accused was entirely without fault.  He may be morally innocent in every sense, yet be branded as a malefactor and punished as such.

 

This Court made clear in Sault Ste. Marie and other cases that the imposition of criminal liability in the absence of proof of a blameworthy state of mind, either as an inference from the nature of the act committed or by other evidence, is an anomaly which does not sit comfortably with the principles of penal liability and fundamental justice:  see also Beaver v. The Queen, [1957] S.C.R. 531, Pappajohn v. The Queen, [1980] 2 S.C.R. 120, Sansregret v. The Queen, [1985] 1 S.C.R. 570, and R. v. Robertson, [1987] 1 S.C.R. 918.  This is particularly so in the case of offences carrying a substantial term of imprisonment which by their nature, severity and attendant stigma are true criminal offences aimed at punishing culpable behaviour as opposed to securing the public welfare.  In the absence of clear statutory language and purpose to the contrary, this Court should, in my view, be most reluctant to interpret a serious criminal offence as an absolute liability offence.  As Dickson J. stated in Sault Ste. Marie at p. 1326:

 

Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act.  The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.

 

    In this case there can be no doubt that we are dealing with a serious criminal offence.  The appellants are charged with committing manslaughter by criminal negligence.  Under s. 219  of the Criminal Code  then in force they are liable to imprisonment for life.  Other offences committed by means of criminal negligence are also serious.  For example, causing death by criminal negligence is an indictable offence under s. 203 of the Code carrying with it a liability to life imprisonment.  Causing bodily harm by criminal negligence is an indictable offence under s. 204 of the Code carrying a liability to ten years' imprisonment.  Criminal negligence in the operation of a motor vehicle could be prosecuted under s. 233 of the Code then in force as an indictable offence with a liability to five years' imprisonment.  Taking the above considerations into account, can it be said that s. 202 of the Code creates an absolute liability offence for which conviction will follow on proof of the proscribed act without reference to the accused's state of mind?

 

     My colleague McIntyre J. has concluded that upon the wording of s. 202 it is an inescapable conclusion that Parliament intended liability to follow upon proof of the act or conduct described in the section.  In particular, he stresses the reference to conduct which shows wanton or reckless disregard for the lives and safety of others and the fact that what is prohibited is criminal negligence. McIntyre J. states at p. 000:

 

In choosing the test to be applied in assessing conduct under s. 202  of the Criminal Code , it must be observed at once that what is made criminal is negligence.  Negligence connotes the opposite of thought-directed action.  In other words, its existence precludes the element of positive intent to achieve a given result.  This leads to the conclusion that what is sought to be restrained by punishment under s. 202 of the Code is conduct, and its results.  What is punished, in other words, is not the state of mind but the consequences of mindless action.  This is apparent, I suggest, from the words of the section, which makes criminal, conduct which shows wanton or reckless disregard.  It may be observed as well that the words "wanton or reckless" support this construction, denying as they do the existence of a directing mental state.  Nor can it be said that criminal negligence, as defined in s. 202, imports in its terms some element of malice or intention.

 

    Section 202 of the Code is, in my view, notorious in its ambiguity.  Since its enactment in its present form in the 1955 Amendments to the Criminal Code  it has bedevilled both courts and commentators who have sought out its meaning.  The interpretation put upon it usually depends upon which words are emphasized.  On the one hand, my colleague's judgment demonstrates that emphasizing the use of the words "shows" and "negligence" can lead to the conclusion that an objective standard of liability was intended and that proof of unreasonable conduct alone will suffice.  On the other hand, if the words "wanton or reckless disregard for the lives or safety of other persons" are stressed along with the fact that what is prohibited is not negligence simpliciter but "criminal" negligence, one might conclude that Parliament intended some degree of advertence to the risk to the lives or safety of others to be an essential element of the offence.  When faced with such fundamental ambiguity, it would be my view that the court should give the provision the interpretation most consonant, not only with the text and purpose of the provision, but also, where possible, with the broader concepts and principles of the law:  see also R. v. Paré, [1987] 2 S.C.R. 618. 

 

    It is obviously important to give meaning and effect to each word employed in s. 202.  Under that section every one is criminally negligent who in doing or in omitting to do anything that it is his duty to do shows wanton or reckless disregard for the lives or safety of other persons.  As I have stated, the presumption when we are dealing with a serious criminal offence should be in favour of a requirement of some degree of mental blameworthiness if the text and purpose of the section are susceptible of such an interpretation.  This Court, in its previous consideration of s. 202, concluded that it was intended to prohibit advertent negligence in the sense that the accused must be fixed with an awareness of the risk that is being prohibited.  In O'Grady v. Sparling, [1960] S.C.R. 804, Judson J., in comparing what is now s. 202 with a provincial prohibition against driving "without due care or without reasonable consideration for other persons using the highway" stated at p. 808:

 

    There is a fundamental difference between the subject-matter of these two pieces of legislation which the appellant's argument does not recognize.  It is a difference in kind and not merely one of degree.  This difference has been recognized and emphasized in the recent writings of Glanville Williams on Criminal Law, para. 28, p. 82, and by J. W. C. Turner in the 17th edition of Kenny's Outlines of Criminal Law.  I adopt as part of my reasons Turner's statement of the difference to be found at p. 34 of Kenny:

 

    But it should now be recognized that at common law there is no criminal liability for harm thus caused by inadvertence.  This has been laid down authoritatively for manslaughter again and again.  There are only two states of mind which constitute mens rea, and they are intention and recklessness.  The difference between recklessness and negligence is the difference between advertence and inadvertence; they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence.  The common habit of lawyers to qualify the word "negligence" with some moral epithet such as "wicked", "gross", or "culpable" has been most unfortunate since it has inevitably led to great confusion of thought and of principle.  It is equally misleading to speak of criminal negligence since this is merely to use an expression to explain itself.

 

Despite the sometimes confusing characterization of the distinct crime of dangerous driving (which I note is not in issue on this appeal), the O'Grady v. Sparling view of criminal negligence was affirmed by various members of the Court in obiter comments in Mann v. The Queen, [1966] S.C.R. 238, at p. 243, Binus v. The Queen, [1967] S.C.R. 594, at pp. 598 and 600, and Peda v. The Queen, [1969] S.C.R. 905, at pp. 911-12, 917-18 and 919-20.  These cases are, in my respectful view, very relevant to the question that the Court faces on this appeal.  They indicate that on previous occasions the Court considered s. 202 susceptible of an interpretation in keeping with the general principle that some degree of guilty knowledge is an element of all serious criminal offences.  It is true that the offence of criminal negligence was not directly in issue in these cases, but at no time did any member of the Court suggest that the subjective approach to the interpretation of the offence of criminal negligence in O'Grady v. Sparling was incorrect or inconsistent with the statutory language or purpose.

 

    In Peda v. The Queen Pigeon J., delivering a concurring judgment for himself and Justice Ritchie, elaborated on the Court's interpretation of s. 202(1) (then s. 191(1)) in O'Grady v. Sparling as follows at pp. 919-20:

 

    Therefore the essential basis on which subsection 1 was held to be aimed at a kind of negligence different from the negligence contemplated in the enactments of regulatory authorities is that "criminal negligence" requires mens rea.  It follows, of course, that inadvertent negligence is not criminal.  Because negligence in the usual language includes both advertent and inadvertent negligence, it is obvious that in charging a jury on an indictment for "criminal negligence" a judge must in some way explain adequately the kind of negligence that is criminal and make it clear, but not necessarily in those words, that inadvertent negligence is not criminal.  It may well be that he can do it by using the language of s. 191(1), seeing that "wanton or reckless" undoubtedly exclude mere inadvertence.

He then stated at p. 920:

 

By virtue of s. 191(1), a conviction for "criminal negligence" requires "wanton or reckless disregard for the lives or safety of other persons".  As against that, subs. 4 contemplates danger to other persons only.  There is, therefore, ample room for distinction between the two offences even excluding inadvertence from the lesser.

 

    However, wantonness and recklessness of themselves clearly imply the exclusion of mere inadvertence while "dangerous driving" does not necessarily.

 

Pigeon J.'s interpretation of the criminal negligence provisions of the Code stresses the phrase "wanton or reckless disregard for the lives or safety of other persons" and the qualification of negligence by the word "criminal".  I would respectfully agree that these elements in the section militate against a purely objective standard of liability.

 

    It is my view that the phrase "reckless disregard for the lives or safety of other persons" found in s. 202, when read in the context of Canadian criminal law jurisprudence, requires the Crown to prove advertence or awareness of the risk that the prohibited consequences will come to pass.  This Court has adopted a subjective approach to recklessness in Pappajohn v. The Queen, supra,  and has reaffirmed this in the recent case of Sansregret v. The Queen, supra.  In doing so the Court has, I believe, implicitly rejected the view that failure to give any thought to whether or not there is a risk can be substituted for the mental state of recklessness as that view is articulated in the majority decisions in Commissioner of Police of the Metropolis v. Caldwell, [1982] A.C. 341 (H.L.), and R. v. Lawrence, [1982] A.C. 510 (H.L.)

 

    The expression "wanton" disregard for the lives and safety of others is perhaps less clear.  The word "wanton" taken in its acontextual sense could signal an element of randomness or arbitrariness more akin to an objective standard but, given the context in which it appears, coupled with the adjective reckless, and its clear use to accentuate and make more heinous the already serious matter of disregard for the lives or safety of others, I would think that the preferable interpretation is that the word wanton was intended to connote wilful blindness to the prohibited risk:  see P. J. T. O'Hearn "Criminal Negligence: An Analysis in Depth" (1964-65), 7 Crim. L.Q. 27, at p. 411.

 

    In short, the phrase "wanton or reckless disregard for the lives or safety of other persons" signifies more than gross negligence in the objective sense.  It requires some degree of awareness or advertence to the threat to the lives or safety of others or alternatively a wilful blindness to that threat which is culpable in light of the gravity of the risk that is prohibited.

 

    In recent years courts and commentators have sought to deal with those aspects of s. 202 which seem to be in tension with a subjective standard. In his valuable treatise Principles of Criminal Law (1986), Professor Colvin has written at p. 120:

 

    The reference to showing wanton or reckless disregard in s. 202 can be used to support the objective test.  It is submitted, however, that it is wrong to interpret s. 202 as a complete definition of criminal negligence which includes its mens rea.  The better interpretation is that the section does no more than define the conduct which is involved in criminal negligence.  Mens rea then remains to be implied in accordance with general principles and this is in effect what the Supreme Court did in O'Grady.  This construction is supported by the statement in another Supreme Court case that "conduct disclosing wanton or reckless disregard for the lives or safety of others constitutes prima facie evidence of criminal negligence".  [Emphasis in original.]

 

The other Supreme Court case to which Professor Colvin refers is Arthurs v. The Queen, [1974] S.C.R. 287, in which Ritchie J. after examining the wording of s. 202 stated, at p. 292:

 

. . . conduct disclosing wanton or reckless disregard for the lives or  safety of others constitutes prima facie evidence of criminal negligence.

 

Ritchie J. then went on to elaborate on what this test means in the context of deciding whether the trial judge had erred in failing to outline a possible defence to the jury.  He stated at p. 294

 

    I think that the second question must be governed by the test which I indicated at the outset, and that question therefore is whether the learned trial judge failed to outline to the jury any theory of the defence which was consistent with the appellant having acted otherwise than with wanton or reckless disregard for the lives and safety of others.

 

What emerges from the test outlined by Ritchie J. in Arthurs v. The Queen is, in my view, a very workable test that is consistent with both the text and purpose of s. 202 and with the basic principles of penal liability.  Conduct that displays a wanton or reckless disregard for the lives or safety of others will constitute the actus reus of the offence under s. 202 and be prima facie evidence of the accused's blameworthy state of mind.  It can be assumed that a person functioning with normal faculties of awareness and engaging in conduct which represents such a grave departure from the norm is either aware of the risk or is wilfully blind to the risk.  Proof of the conduct will, in other words, cast an evidential burden on the accused to explain why the normal inference of conscious awareness or wilful blindness should not be drawn.  The inference will arise in most cases because the intent requirement under s. 202 is the minimal intent requirement of awareness or advertence or wilful blindness to the prohibited risk.  As Ritchie J. noted in Arthurs v. The Queen at p. 298 the more expansive intent requirement of deliberation is not a necessary element of the offence set out in s. 202.

 

    I agree with my colleague McIntyre J. that malice or intent in the sense of a mind directed to a purpose is not an element of s. 202.  Moreover, the fact that the accused may desire or calculate that his purpose can be achieved without the realization of the risk does not relieve the accused of liability under s. 202 if he either adverted to or became aware of the risk to the lives or safety of others or wilfully closed his eyes to the reality of that risk.

 

    The approach to criminal negligence set out in Arthurs v. The Queen also finds support in the subsequent case of Leblanc v. The Queen, [1977] 1 S.C.R. 339.  In that case the issue was whether evidence of similar facts was admissible to prove the mens rea of an accused who was charged with causing death by criminal negligence when he fatally struck a person while making a low pass in a bush plane.  De Grandpré J. observed at p. 356 that "in most cases, the fact itself proves the intent" but that it remained open to the Crown to prove the mens rea not only on the basis of an inference from the commission of the act itself but also by evidence such as the similar facts of previous low passes in order to prove that the accused must have been aware of the risk created by such dangerous methods of flying an airplane.  Dickson J., in dissent, approved of the statement in Arthurs v. The Queen that conduct disclosing a wanton or reckless disregard for the lives or safety of others constitutes prima facie evidence of negligence but held at p. 346 that the evidence of similar facts was not admissible because the "mens rea of criminal negligence is determined by an objective standard".  I find a certain ambiguity in this position because, in my respectful opinion, the mens rea of advertent negligence can in most cases be determined by reference to an objective standard without in the final analysis itself constituting an objective standard.  Similarly, the dissent of Chief Justice Laskin in Arthurs v. The Queen can also perhaps be reconciled with the Court's holding in O'Grady v. Sparling that criminal negligence consists of advertent negligence in so far as the Chief Justice's dissent stands for the propositions that (1) the defence of accident designed to deny some necessary mental element should have been explained to the jury (pp. 308-312) and (2) the requirement of deliberation or in his words "subjective intent" was not a necessary element of the offence of criminal negligence as set out by the Court in O'Grady v. Sparling, Binus v. The Queen, and Peda v. The Queen (pp. 306-307).  In any event, I would respectfully agree with Professor Colvin's comment on this Court's decision in Leblanc in "Recklessness and Criminal Negligence" (1982), 32 U. of T. L.J. 345, at p. 356.

 

    The decision of the majority in Leblanc establishes that O'Grady v. Sparling remains good law on the mental element of criminal negligence.  The test is subjective:  the actor himself must have known of the risks of his conduct.  Those provincial appellate courts which have espoused an objective test are in error.  This is not meant to suggest, however, that the decisions in the particular cases were wrong.  The results would perhaps have been the same even if a subjective test had been used.

 

    It is my view that the jurisprudence of this Court to date establishes that the criminal negligence prohibited under s. 202 is advertent negligence.  I would not hesitate to depart from these precedents for solid reasons but I cannot, with due respect to those who think otherwise, agree that the case for the adoption of an objective standard of liability has been made out to the extent required to justify a departure from this Court's previous decisions.  On the standard required to justify a departure from the practice of stare decisis, I find the comments of the Chief Justice in his dissent in R. v. Bernard, [1988] 2 S.C.R. 833, at pp. 849-861, instructive. In R. v. Bernard the Chief Justice suggests that before overruling one of its prior decisions the Court consider the introduction of the Charter, the attenuation of a precedent in later authorities, the creation of uncertainty by the continued existence of the precedent and whether the overturning of the precedent will expand the range of criminal liability and work to the detriment of the accused.  Considering these factors in the case at bar, the burden to justify such a departure would, in my view, be especially high given that O'Grady v. Sparling has not been attenuated by the subsequent jurisprudence of this Court and the effect of the change proposed here is to expand criminal liability beyond its normal limits and to the detriment of the accused.  The adoption of an objective standard also creates, in my view, both the possibility of a Charter violation and uncertainty as to the relevance of factors subjective to the accused under the new objective standard.

 

    As I have suggested above, the words of the section can reasonably bear an interpretation which leaves room for the mental element of awareness or advertence to a risk to the lives or safety of others or wilful blindness to such risk.  Conduct which shows a wanton or reckless disregard for the lives and safety of others will by its nature constitute prima facie evidence of the mental element, and in the absence of some evidence that casts doubt on the normal degree of mental awareness, proof of the act and reference to what a reasonable person in the circumstances must have realized will lead to a conclusion that the accused was aware of the risk or wilfully blind to the risk.

 

    Professor Glanville Williams in his work Criminal Law: The General Part (2nd ed. 1961) explained the minimal nature of the mental element for advertent negligence and the important evidentiary use of objective standards in determining the subjective state of mind of what he terms advertent negligence. He defined the requirement of recklessness in advertent negligence as follows at pp. 53-55:

 

    If the actor foresaw the probability of the consequences he is regarded as reckless, even though he fervently desired and hoped for the exact opposite of the consequence, and even though he did his best (short of abandoning his main project) to avoid it....  Recklessness is any determination to pursue conduct with knowledge of the risks involved though without a desire that they should eventuate.

 

                                                                          . . .

 

. . . recklessness may be a mere passing realization, instantly dismissed, which leaves no mark upon conduct.

 

Likewise, P. J. T. O'Hearn has indicated that the requirements of advertent negligence encompass any consciousness of the prohibited risk or "the mental state of one who is doing what appears to be taking chances but who is blindly wilful in doing so":  "Criminal Negligence: An Analysis in Depth", supra, at p. 422.  To take account of the minimal nature of the mental element of recklessness, Professor Williams explained in Criminal Law:  The General Part, supra, at pp. 55-56:

 

    On an issue of recklessness, these considerations may be put before the jury.  There is no objection to instructing the jury to consider whether the defendant must have foreseen the consequence, but it is fatally easy to confuse this with the question whether the defendant ought as a reasonable man to have foreseen it.  The latter question presupposes an objective test of the reasonable man, and the accused person's actual foresight is immaterial.  The former question is directed exclusively to the accused's actual foresight, and the test of what a reasonable man would have foreseen is merely a step in reasoning.  For example, it may be shown that the accused is mentally subnormal, or that on the occasion in question he was drunk, or suffering from some fear, anger, or other excitement which deprived him of the ability to look circumspectly to the probable outcome of his conduct.  These facts would not, according to the usual view, be relevant to an issue of inadvertent negligence, if that were before the court; but they are very relevant to the issue of recklessness.  They may lead the tribunal to decide that the accused did not foresee the consequence, even though a person somewhat differently situated would have foreseen it.  In short, a judgment of inadvertent negligence rests merely on a comparison between the conduct of the accused and that of a reasonable man, while a judgment of recklessness uses the concept of the reasonable man only as a guide to what went on in the accused's mind, and only so long as it can plausibly be assumed that the accused's mind accorded with the normal at the time of his act.

 

I would add that the importance of what the reasonable person would have foreseen to the determination of whether a particular accused would have become aware or wilfully blind to the prohibited risk will vary with the context.  For example, in the case of a licensed driver engaging in high risk motoring, I am in general agreement with Morden J.A. in R. v. Sharp (1984), 12 C.C.C. (3d) 428 (Ont. C.A.), at pp. 434-35, that it is open to the jury to find the accused's blameworthy state of mind from driving which shows wanton or reckless disregard for the lives or safety of others subject to an explanation in the evidence which would account for the deviant conduct such as a sudden mechanical malfunction or a bee sting or other accident beyond the accused's control.  I would think that in the driving context where risks to the lives and safety of others present themselves in a habitual and obvious fashion the accused's claim that he or she gave no thought to the risk or had simply a negative state of mind would in most, if not all, cases amount to the culpable positive mental state of wilful blindness to the prohibited risk.

 

    The minimal nature of the requirement of a blameworthy state of mind and the relevance of the objective standard as a rebuttable mode of proof suggests to me that a holding that s. 202 requires proof of the mental element of advertence to the risk or wilful blindness to the risk will not undermine the policy objectives of the provision.  The loss in terms of deterrence and social protection would seem to be negligible when the retention of a subjective standard would at most offer protection for those who due to some peculiarity or unexpected accident commit conduct which, although it shows a reckless or wanton disregard for the lives or safety of others, can be explained as inconsistent with any degree of awareness of or wilful blindness to such a risk. Should social protection require the adoption of an objective standard it is open to Parliament to enact a law which clearly adopts such a standard.  In my respectful view this Court should not do it for them.

 

    I do not think that a subjective interpretation of s. 202 renders the role of manslaughter committed by means of criminal negligence superfluous within the scheme of the homicide provisions of the Criminal Code .  The murder provisions will in general be available only if a higher degree of intent is proven than awareness of or wilful blindness to a risk to the lives and safety of others.  For example ss. 212(a) and (b) involve the higher degree of mens rea of either meaning to cause death or meaning to cause bodily harm with the knowledge that it is likely to cause death and being reckless as to whether death ensues or not.  There may be some overlap between the offence of committing culpable homicide by criminal negligence and the murder offences found in ss. 212(c) and 213 but these murder provisions seem to be a distinct part of the statutory scheme in that they are addressed to the specific issue of killings which result from either the pursuit of an unlawful object or the commission of specified indictable offences.  Manslaughter by means of advertent criminal negligence would still, in my view, have a role to play in prohibiting killings done with a more minimal intent than required under ss. 212(a) and (b) and in contexts which would not be covered by ss. 212(c) and 213.

 

    In recognition of the harshness of a uniform application of an objective standard of criminal liability much of the recent work in criminal jurisprudence has canvassed the possibility of introducing a subjective dimension into the objective standard in order to relieve the harshness of imposing an objective standard on those who, because of their peculiar characteristics, could not fairly be expected to live up to the standard set by the reasonable person.  H. L. A. Hart was perhaps the first to explore this possibility in his essay "Negligence, Mens Rea and Criminal Responsibility," in  Oxford Essays in Jurisprudence (1961) (c. 2).  He recognized the dangers of the use of an objective standard at p. 47:

 

If our conditions of liability are invariant and not flexible, i.e. if they are not adjusted to the capacities of the accused, then some individuals will be held liable for negligence through they could not have helped their failure to comply with the standard.  In such cases, indeed, criminal responsibility will be made independent of any 'subjective element':  since the accused could not have conformed to the required standard.

 

In response to this most legitimate fear, Professor Hart proposed the following two-pronged test for criminal negligence:

 

(i)Did the accused fail to take those precautions which any reasonable man with normal capacities would in the circumstances have taken?

 

(ii)Could the accused, given his mental and physical capacities, have taken those precautions?

 

A similar approach has been taken by the criminal law theorist George Fletcher. Professor Fletcher also proposed that criminal liability for negligent conduct be determined in a two step process: the first being the determination of wrongdoing which in the case of the prohibition of negligence would proceed on the basis of breach of an objective standard and the second being the process by which the court determines whether it would be fair to hold a particular accused responsible for the act of wrongdoing.  Professor Fletcher notes in Rethinking Criminal Law (1978), at p. 511:

 

If the law ignored the question of attribution, namely, the question whether individuals were properly held accountable for their wrongful acts, the criminal law undoubtedly would generate some unjust decisions.  If it were true that the only relevant norms of the legal system were those of wrongdoing, injustice would be inescapable in cases in which individuals could not but violate the law.

 

See also G. Fletcher, "The Theory of Criminal Negligence: A Comparative Analysis," 119 U. Pa. L.R. 401 (1971); A. Stalker "Can George Fletcher Help Solve The Problem of Criminal Negligence" (1982), 7 Queens L.J. 274.  Professor Pickard has also adopted an approach to this issue similar to that of Professors Hart and Fletcher.  She proposes in "Culpable Mistakes and Rape: Relating Mens Rea to the Crime" (1980), 30 U. of T. L.J. 75, at p. 79, to modify an objective standard of unreasonableness so that "the relevant characteristics of the particular actor, rather than those of the ordinary person" will be "the background against which to measure the reasonableness of certain conduct or beliefs."  Professor Pickard elaborates:

 

    This individualized standard is neither 'subjective' nor 'objective.'  It partakes of the subjective position because the inquiry the fact finder must conduct is about the defendant himself, not about some hypothetical ordinary person.  It partakes of the objective position because the inquiry is not limited to what was, in fact, in the actor's mind, but includes an inquiry into what could have been in it, and a judgment about what ought to have been in it.

 

    In their judgments in this case my colleagues McIntyre and Lamer JJ. seem to have adopted variations of the above developments.  McIntyre J., for example, states at p. 000:

 

    The application of an objective test under s. 202  of the Criminal Code , however, may not be made in a vacuum.  Events occur within the framework of other events and actions when deciding on the nature of the questioned conduct surrounding circumstances must be considered.  The decision must be made on a consideration of the facts existing at the time and in relation to the accused's perception of those facts.  Since the test is objective, the accused's perception of the facts is not to be considered for the purpose of assessing malice or intention on the accused's part but only to form a basis for a conclusion as to whether or not the accused's conduct, in view of his perception of the facts, was reasonable.

 

My colleague then, however, goes on to suggest that the factual perceptions of the accused must be not only honest but reasonable in order to be factored into the assessment of the objective standard.  For example, he suggests that the appellants in this case should not be held to the standard of honest but mistaken belief in circumstances which would render their conduct not culpable as set out in Pappajohn v. The Queen, supra, but rather that their beliefs and perceptions in order to be considered must not be negligently or unreasonably held.  To my mind, when the offence charged is criminal negligence the distinction from Pappajohn v. The Queen lies not in the introduction of an overriding standard of reasonableness, as this in effect holds the accused simply to the standards of what would be expected from the reasonable person, but rather in the degree of guilty knowledge that must be proven.  Although a person may have an honest yet unreasonable view of the circumstances which would render him or her in the large sense blameless, this would not necessarily decide the relevant question of whether he or she had any awareness of the prohibited risk or at some time during the relevant transaction wilfully blinded him or herself to an otherwise obvious risk.  To require, as does my colleague, that all misperceptions be reasonable will, in my view, not excuse many of those who through no fault of their own cannot fairly be expected to live up to the standard of the reasonable person.

 

    My colleague Lamer J. takes a somewhat different approach. He suggests at p. 000 that courts when applying the objective standard in s. 202 should make "a generous allowance" for factors which are particular to the accused, such as youth, mental development, education".  I do not doubt that an expansive application of this approach could relieve some of the harshness of applying an objective standard to those who could not fairly be expected to meet the standard and I am cautiously sympathetic to attempts to integrate elements of subjective perception into criminal law standards that are clearly objective:  see R. v. Vasil, [1981] 1 S.C.R. 469; R. v. Hill, [1986] 1 S.C.R. 313.  Despite this, the test proposed by my colleague suffers, in my respectful view, from the various degrees of over and under inclusiveness that would be expected from a test which is only a rough substitute for a finding of a blameworthy state of mind in each case.  For example, an instruction to the trier of fact that they are to hold a young accused with modest intelligence and little education to a standard of conduct that one would expect from the reasonable person of tender years, modest intelligence and little education sets out a fluctuating standard which in my view undermines the principles of equality and individual responsibility which should pervade the criminal law.  It tells the jury simply to lower the standard of conduct expected from such people regardless of whether in the particular case the accused attained the degree of guilty knowledge that I have set out above.  Professor Fletcher in "The Theory of Criminal Negligence:  A Comparative Analysis" has termed the decision whether to make the standard of liability more or less objective by including or excluding specific personal characteristics a "policy question", "a low visibility device for adjusting the interests of competing classes of litigants" and I respectfully agree with the following criticism he makes of this process at p. 408:

 

The question in the criminal context is not one of adjusting the interests of competing classes of litigants, but of justifying the state's depriving an individual of his liberty.

 

Professor Fletcher's solution to this problem, the introduction of a comprehensive range of individualized excuses, is in my view far from realization in Canadian criminal law jurisprudence and, as such, the concern he identifies of the culpability of the individual is still, in my view, best served by continued adherence to subjective standards of liability.

 

    One problem with attempts to individualize an objective standard is that regard for the disabilities of the particular accused can only be applied in a general fashion to alter the objective standard.  It seems preferable to me to continue to address the question of whether a subjective standard (a standard,  I might add, that in its form is applied equally to all and consistent with individual responsibility) has been breached in each case than to introduce varying standards of conduct which will be only roughly related to the presence or absence of culpability in the individual case.  Varying the level of conduct by factoring in some personal characteristics may be unavoidable if the court is faced with a clearly objective standard but it should, in my opinion, be avoided if the more exacting subjective test is available as a matter of statutory interpretation.  I have no doubt that factors such as the accused's age and mental development will often be relevant to determining culpability but under a subjective test they will be relevant only as they relate to the question of whether the accused was aware of or wilfully blind to the prohibited risk and will not have to be factored in wholesale in order to adjust the standard of conduct that is expected from citizens.

 

    Attempts to introduce subjective elements into objective standards risk not only being overinclusive in the sense that they mandate a lowering of the objective standard of liability on a characteristic by characteristic basis, they also risk the danger of being underinclusive for those accused who have idiosyncracies that cannot be articulated ex ante into the necessarily limited list of personal characteristics which can be grafted on to an objective standard. For example the characteristics listed by my colleague Lamer J. would not relieve the harshness of the application of an objective standard for a driver who because of a sudden injury or ailment drove a motor vehicle in a fashion which showed a reckless or wanton disregard for the lives and safety of others.  It would not matter that the particular accused was not capable of adverting or wilfully closing his or her eyes to the prohibited risk; the conduct in itself would have breached the objective standard.

 

    The limited range of personal characteristics which can be imported into a modified objective standard is often justified by the notion that a thoroughly subjective approach will allow those who deprive themselves of normal awareness through voluntary intoxication or fits of temper to be exempted from criminal liability.  My answer to this (it was also my answer in the cases of R. v. Bernard, supra, and R. v. Quin, [1988] 2 S.C.R. 825) is that greater attention must be paid to the minimal levels of guilty knowledge that are required for conviction of many offences of violence under the Criminal Code .  It is, in my respectful view, perfectly permissible for the trier of fact to reason from an objective standard and ask the question: must not the accused have had the minimal awareness of what he or she was doing?  The important point is that this question is rebuttable and leaves room for acquitting an accused who for whatever reason lacked the minimal awareness that would normally accompany the commission of high risk or violent acts.

 

    I am in complete agreement with what my colleague Lamer J. has to say concerning the issue of constitutionality.  I would only add that in light of this Court's decision in R. v. Stevens, [1988] 1 S.C.R. 1153, the Charter could not have been applied to the tragic events culminating in Christopher Tutton's death on October 17, 1981.

 

    To sum up, although I agree with my colleagues as to the proper disposition of this appeal, I am unable to agree with their conclusion that the offence of manslaughter by criminal negligence consists of conduct in breach of an objective standard.

 

//McIntyre J.//

 

    The reasons of McIntyre and L'Heureux-Dubé JJ. were delivered by

 

    MCINTYRE J. -- This appeal raises again the question of criminal negligence, as defined in s. 202 of the Criminal Code, R.S.C. 1970, c. C-34, and the test to be applied by a jury in its application to a given case.

 

    The respondents, Carol Anne Tutton and Arthur Thomas Tutton, were the parents of a five-year-old child, Christopher Tutton, who died on October 17, 1981.  After a trial before judge and jury, the Tuttons were convicted of manslaughter because of his death.  They appealed the conviction.  The Court of Appeal (Dubin, Goodman, Tarnopolsky JJ.A.) in a judgment written for the court by Dubin J.A. (as he then was) allowed the appeals, set aside the convictions, and directed new trials.  This appeal is taken by the Crown, by leave granted May 23, 1985.

 

    The Tuttons, according to the evidence, which was unquestioned on this point, had a good reputation in their community for honesty and integrity and, as well, they were loving and responsible parents.  They were also deeply religious and they belonged to a religious sect which believes in faith healing.  Their religious convictions did not prevent them from seeking and acting on medical advice nor from taking medicines, but they believed that Divine intervention could miraculously effect cures for illnesses and ailments beyond the power of modern medical science.

 

    In April of l979, their family physician, a general practitioner named Love, diagnosed the child, Christopher, as a diabetic and admitted him to hospital where he remained for some weeks.  While the child was in hospital, his mother attended classes at a diabetic education centre where she received instruction regarding insulin injections and the impact of diet and exercise on diabetes and diabetics.  She also attended in July of 1979 a full week of seminars at a juvenile diabetic clinic to gain an understanding of her son's condition and to learn how to deal with it.  There was then evidence upon which the jury could conclude that Mrs. Tutton had made herself competent to deal with her child's illness under general supervision from the family physician.

 

    Throughout the son's illness, the Tuttons main concern was to find a cure for the boy.  They both believed that there would be a spiritual cure.  They discussed this possibility with Dr. Love who considered that there was no possibility of a miraculous cure, and in November of 1979 a diabetic specialist from the Sick Children's Hospital in Toronto advised the respondents that their son would never be able to discontinue his insulin injections.  He told the respondents not to discontinue the insulin treatments.  However, on October 2, 1980, Mrs. Tutton stopped giving the child insulin in the belief that he was being healed by the power of the Holy Spirit.  In two days, the child became quite ill and was taken to a hospital emergency unit.  The physician who attended the child said that on admission to hospital the child was dangerously ill, suffering from diabetic acidosis, a potentially fatal disorder which was due to the absence of insulin.  The doctor admonished the parents when he learned that they had consciously withheld the insulin.  He told the parents that insulin would be required by their son for life, and after this incident Mr. Tutton assured the family physician that insulin would not be withheld in future without consulting a doctor.  A year later, however, insulin was again stopped.  Mrs. Tutton believed that she had a vision of God in which she was told that Christopher was cured, that no more insulin was needed, and that God would take care of her son.  The insulin injections were stopped on October 14, l981.  Mr. Tutton did not know of the withdrawal of insulin until October 15 but on learning of it he approved.  The child sickened quickly.  On October 17, he was taken to the hospital where he was pronounced dead on arrival.  The forensic pathologist who conducted a postmortem examination gave his opinion that death was caused by complications of diabetic hyperglycemia.  The respondents were jointly charged with manslaughter in an indictment which provided:

 

ARTHUR TUTTON AND CAROL TUTTON stand charged that between the period of the 14th day of October, 1981, and the 17th day of October, 1981, both dates inclusive, at the Township of Wilmot, in the Judicial District of Waterloo, being the parents of Christopher Tutton, they did cause the death of Christopher Tutton, age five years, by criminal negligence, to wit, they did, without lawful excuse, omit to provide necessaries of life to Christopher Tutton, which was their duty to provide, thereby showing wanton or reckless disregard for the life or safety of the said Christopher Tutton, and did thereby commit manslaughter, contrary to the Criminal Code .

 

Particulars were given in these terms:

 

It is further particularized that the said Arthur Tutton and Carol Tutton failed, without lawful excuse, while their said son, Christopher, was in necessitous circumstances,

 

(1) to provide insulin to him

 

(2) to obtain timely medical assistance for him.

 

The relevant statutory provisions which were considered in the courts below are set out hereunder:

 

197. (1) Every one is under a legal duty

 

(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;

 

                                                                          . . .

 

    (2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies upon him, to perform that duty, if

 

(a) with respect to a duty imposed by paragraph (1)(a) or (b),

 

(i) the person to whom the duty is owed is in destitute or necessitous circumstances, or

 

(ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently;  or

 

                                                                          . . .

 

202. (1) Every one is criminally negligent who

 

(a) in doing anything, or

 

(b) in omitting to do anything that it is his duty to do,

 

shows wanton or reckless disregard for the lives or safety of other persons.

 

    (2) For the purposes of this section, "duty" means a duty imposed by law.

 

    At trial, the defence was that as far as the Crown's case rested on the failure to provide insulin the Tuttons honestly believed that Christopher had been cured by Divine intervention and, therefore, no further insulin was necessary.  This would raise the defence of an honest though mistaken belief in the existence of a circumstance or circumstances which, if present, would render their conduct non-culpable.  It was also argued that as far as the Crown's case depended upon a failure to provide timely medical assistance for their son, the parents were unaware of the fact that he was seriously ill as a result of the withdrawal of the insulin and, accordingly, their conduct in this regard could not be said to exhibit a wanton or reckless disregard for the life or safety of their son.

 

    The judgment of the Court of Appeal is now reported at (1985), 18 C.C.C. (3d) 328.  Dubin J.A. after reviewing the facts noted that the indictment as drawn involved two offences:  manslaughter, and failing to provide necessaries under s. 197  of the Criminal Code .  He recognized that this made for a difficult charge to the jury involving, as it did, a charge of manslaughter in respect of which the onus of proof beyond a reasonable doubt rested entirely upon the Crown, and, as well, a charge in respect of which the Crown was required only to prove beyond reasonable doubt the duty to provide necessaries and a failure to do so, following which to escape conviction the accused was required to prove a lawful excuse on a balance of probabilities.  Dubin J.A. in his reasons reproduced substantial parts of the charge and concluded that the jury might well have been confused as to the burden of proof and may have formed the impression that the accused were under a burden to show an excuse, both with respect to the failure to provide necessaries and to the charge of manslaughter.

 

    In considering the charge, it seems to me, that in so far as it dealt with the burden of proof on manslaughter it was an adequate statement of the law.  At the risk of undue repetition, I will reproduce the manslaughter portion of the charge referred to by Dubin J.A., at p. 335 in the report:

 

    To succeed on this indictment therefore the Crown must satisfy you, beyond a reasonable doubt, of each and every one of these following elements:--

 

    That it was the duty of the Tuttons to provide Christopher with the necessaries of life;

 

    That they omitted to do so without lawful excuse;

 

    That in omitting to do so they showed wanton or reckless disregard for the life or safety of Christopher;

 

and that it was that omission or failure which did cause his death.

 

and, further, he said:

 

    Another element which the Crown must establish is that the accused omitted to provide Christopher with insulin and timely medical assistance without lawful excuse.  Excuse of course means excuse in law.  A lawful excuse might be that the person does not have the money to purchase insulin or that because of some personal or physical incapacity he is unable to obtain the insulin or that he or she did not know how to administer it.  It is not a lawful excuse for a person to have religious beliefs that say it is wrong to give insulin or that God has told them that it is not necessary to give insulin to a child.  The law of this country is paramount and must be obeyed by everyone without exception.

 

    To sum up then.  To succeed on this indictment the Crown must satisfy you, beyond a reasonable doubt.  Firstly, that it was the duty of the Tuttons to provide Christopher with the necessaries of life, namely his daily injections of insulin and timely medical assistance.  That they failed to do so without lawful excuse.  That in omitting to do so they showed wanton or reckless disregard for his life or safety.  That it was that omission or failure which caused his death.  If the Crown has so satisfied you then you will return a verdict of guilty on this indictment.  [Emphasis in original.]

 

Dubin J.A. agreed that in that portion of the charge the onus to negate a lawful excuse had been placed upon the Crown, but he then considered a further portion of the charge, at p. 336, which is also reproduced below:

 

    Now I have already reviewed all of those essential ingredients that make up this charge and I don't propose to go through them with you again.

 

    The first two elements will give you no problem.  Those two elements are that the accused are the parents of Christopher and he was under the age of sixteen years.  That has been admitted.

 

    The next issue.  Has the Crown proved, beyond a reasonable doubt, that they failed to provide him with the necessaries of life.  I have already instructed you on the law on that issue.

 

    Finally the Crown must prove, beyond a reasonable doubt, that their failure to provide their child with the necessaries of life endangered his life.

 

    Now if the Crown does prove those items that is not the end of the matter.  You have to go on and determine if the accused have proved that they had a lawful excuse which would entitle them to be acquitted.  The question of lawful excuse has already been discussed with you and as I indicated to you it is to be determined on all of the facts of the circumstances of this case.

 

    I have reviewed with you the evidence and the explanation of the accused as to why they withdrew insulin from him and I have also reviewed with you what constituted a lawful excuse.  I told you that the burden would be on the accused to prove lawful excuse.  Parliament has enacted that special provision.  But this burden on the accused is not as heavy as the burden on the Crown.  The Crown has to prove all of the elements of the offence beyond a reasonable doubt.  The burden on the accused, with respect to proving lawful excuse, is only to show on a balance of probabilities that they had a lawful excuse.

 

    So, if on balance, it comes down in favour of the accused that they have proved lawful excuse they are entitled to be acquitted.  If on balance it comes down against them and they have not proved lawful excuse and the Crown having proved everything that it has to prove, beyond a reasonable doubt, you will then be obliged to convict.  Now if the balance is so even on this issue of lawful excuse that you cannot decide one way or the other then they have not discharged the burden and they have not proved lawful excuse and you should convict.  [Emphasis in original.]

 

Dubin J.A. considered that the jury may have formed the impression from these comments that, both with respect to the underlying question concerning the provision of necessaries of life and the actual offence charged, manslaughter, there was a burden on the accused to show on a balance of probabilities that they had a lawful excuse.  He considered this resulted in reversible error and on that basis a new trial would be required.

 

    I am in agreement with him on that point because of the complications arising out of the form of the indictment and the confusion concerning the burden of proof which varied with different aspects of the offence charged.  In my view, this would be sufficient to resolve the appeal, but because of the nature of this case Dubin J.A. felt obliged to go further and deal with other issues raised by the parties.  Some comment is required, then, from this Court.

 

    The indictment and its particulars have been reproduced above and, of course, the Crown is bound by what it has pleaded.  The Crown has alleged that the appellants have caused the death of their son by criminal negligence and did thereby commit manslaughter.  It has particularized its allegation in the indictment and also in the particulars, alleging that the appellants without lawful excuse did omit to provide necessaries of life to their son which it was their duty to provide.  This failure is the basis of the allegation of wanton or reckless disregard for the life or safety of their son and it is the sole basis on which the charge of manslaughter may be supported.  It is therefore clear that while the appellants are charged with the commission of one specific offence, manslaughter, the Crown may only succeed in its proof by establishing the commission of a different offence, provided for in s. 197(2)  of the Criminal Code , and one in which a burden of proof relating to the question of lawful excuse is imposed on the accused.

 

    The task of a trial judge charging a jury in these circumstances would be difficult and, in my view, it would be necessary to keep clearly separate the two offences or the elements of the two offences which must be dealt with.  This could be achieved by approaching the charge in two steps.  The first step, I suggest, would be to deal with the underlying offence in s. 197(2) of the Code, for under this indictment until this question is settled no approach can be made to the crime of manslaughter actually charged.  The jury should be instructed on the elements of the offence under s. 197 and told that for a conviction under that section they must be satisfied beyond a reasonable doubt that the appellants were under a duty to provide necessaries of life to their son, and that they failed to do so without lawful excuse.  If they were not so satisfied, they would acquit the accused and go no further, for the sole basis of the manslaughter allegation would be gone.  If, however, they were to find that the accused had failed to provide the necessaries without lawful excuse, then it would be necessary for them to go further and consider whether in such failure they had shown a wanton and reckless disregard for the life and safety of their son.  If the jury were satisfied beyond a reasonable doubt that such conduct had been shown and that it had caused the death of the child, they would be obligated to convict of manslaughter, and on this indictment that is the only way a conviction of manslaughter could be reached.  If, on the other hand, the jury were not so satisfied, they would be required to acquit the accused of the crime of manslaughter.  If, however, they were satisfied that the necessaries of life had been withheld but in doubt as to whether the deprivation was the cause of the son's death, they could in that case convict of the included offence under s. 197, otherwise they would acquit.  The advantage, in my view, of putting the matter to the jury in this manner is that it would clarify the separate issues and make it clear that in reaching a conclusion on the offence of manslaughter, it is the conduct of the parents in relation to the provision of necessaries and medical assistance which must be considered in deciding if wanton and reckless disregard has been shown.

 

    In reaching a conclusion as to whether the conduct of an accused person has shown, within the meaning of s. 202  of the Criminal Code , wanton or reckless disregard for the lives or safety of other persons, the authorities dictate an objective test:  see the review of the authorities on this subject by Cory J.A. for the Court of Appeal in R. v. Waite (1986), 28 C.C.C. (3d) 326, approved in this Court, [1989] 1 S.C.R. 000.  Indeed, in the Court of Appeal, Dubin J.A. accepted the objective test as one of general application, but made an exception in cases where the conduct complained of consisted of an act or acts of omission, as opposed to those of commission.  In such cases, it was his view that occasions would arise where a subjective test would be required where acts of omission were under consideration.  He considered this was such a case.  It is my view, however, that no such distinction as Dubin J.A. would adopt may be made.  I am wholly unable to see any difference in principle between cases arising from an omission to act and those involving acts of commission.  Indeed, the words of s. 202 of the Code make it clear that one is criminally negligent who, in doing anything or in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.  The objective test must, therefore, be employed where criminal negligence is considered for it is the conduct of the accused, as opposed to his intention or mental state, which is examined in this inquiry.

 

    Our concept of criminal culpability relies primarily upon a consideration of the mental state which accompanies or initiates the wrongful act, and the attribution of criminal liability without proof of such a blameworthy mental state raises serious concerns.  Nonetheless, negligence has become accepted as a factor which may lead to criminal liability and strong arguments can be raised in its favour.  Section 202  of the Criminal Code  affords an example of its adoption.  In choosing the test to be applied in assessing conduct under s. 202 of the Code, it must be observed at once that what is made criminal is negligence.  Negligence connotes the opposite of thought-directed action.  In other words, its existence precludes the element of positive intent to achieve a given result.  This leads to the conclusion that what is sought to be restrained by punishment under s. 202 of the Code is conduct, and its results.  What is punished, in other words, is not the state of mind but the consequence of mindless action.  This is apparent, I suggest, from the words of the section, which make criminal, conduct which shows wanton or reckless disregard.  It may be observed as well that the words "wanton or reckless" support this construction, denying as they do the existence of a directing mental state.  Nor can it be said that criminal negligence, as defined in s. 202, imports in its terms some element of malice or intention.  This point was made in the Crown's factum in paragraph 41, which provided, in part:

 

The plain and ordinary meaning of the terms "wanton" and "reckless" when used in connection with the concept of negligence would seem to include a state of being heedless of apparent danger.  Section 202(1) does not use the term "reckless" as an extended definition of intention or malice, but rather employs the term as part of a definition of conduct which amounts to "negligence" in a criminal context.

 

In my view, then, an objective standard must be applied in determining this question because of the difference between the ordinary criminal offence, which requires proof of a subjective state of mind, and that of criminal negligence.  In criminal cases, generally, the act coupled with the mental state or intent is punished.  In criminal negligence, the act which exhibits the requisite degree of negligence is punished.  If this distinction is not kept clear, the dividing line between the traditional mens rea offence and the offence of criminal negligence becomes blurred.  The difference, for example,  between murder and manslaughter, both unlawful killings, is merely one of intent.  If the question of an accused's intent had to be considered and separately proved in offences under s. 202 of the Code, the purpose of the section would be defeated because intentional conduct would perforce be considered under other sections of the Code and s. 202, aimed at mindless but socially dangerous conduct, would have no function.  For these reasons, the objective test should be employed and, in my view, the Court of Appeal was in error in concluding in this case that a subjective test would be required.  The test is that of reasonableness, and proof of conduct which reveals a marked and significant departure from the standard which could be expected of a reasonably prudent person in the circumstances will justify a conviction of criminal negligence.

 

    In reaching this conclusion, I am not overlooking the comments I made in Sansregret v. The Queen, [1985] 1 S.C.R. 570, at pp. 581-82, which were cited by counsel for the appellant.  In Sansregret v. The Queen, I expressed the view that "recklessness, to form a part of the criminal mens rea, must have an element of the subjective".  I then went on to say that, "[i]t is in this sense that the term `recklessness' is used in the criminal law and it is clearly distinct from the concept of civil negligence".  It was argued upon the basis of these words and later comments on the nature of negligence in relation to the criminal law that a subjective test should therefore be applied in considering the existence of criminal negligence under s. 202 of the Code.  I would reject that argument on the basis that the concept of recklessness there described is not applicable in a case under s. 202 of the Code.  Sansregret was charged with rape, a crime which involves positive mind-directed conduct on the part of the accused which aims at the accomplishment of a specific result.  It is a traditional mens rea offence and a mental state must be proved, in that case an intention to persist with his purpose despite the fact that the complainant's consent has been extorted by threats and fear.  Recklessness on his part forms a part of the mens rea (the blameworthy state of mind) and has to be proved on a subjective basis as part of the mental element of the offence.  In this sense, the words in Sansregret v. The Queen are apposite.  Section 202, on the other hand, has created a separate offence;   an offence which makes negligence -- the exhibition of wanton or reckless behaviour -- a crime in itself and has thus defined its own terms.  As noted by Cory J.A. in R. v. Waite, s. 202 of the Code was enacted in its present form as a codification of the offence which had emerged in Canadian jurisprudence, and in respect of which the necessary mens rea may be inferred on an objective basis from the acts of the accused.

 

    The application of an objective test under s. 202 of the Code, however, may not be made in a vacuum.  Events occur within the framework of other events and actions and when deciding on the nature of the questioned conduct surrounding circumstances must be considered.  The decision must be made on a consideration of the facts existing at the time and in relation to the accused's perception of those facts.  Since the test is objective, the accused's perception of the facts is not to be considered for the purpose of assessing malice or intention on the accused's part but only to form a basis for a conclusion as to whether or not the accused's conduct, in view of his perception of the facts, was reasonable.  This is particularly true where, as here, the accused have raised the defence of mistake of fact.  If an accused under s. 202 has an honest and reasonably held belief in the existence of certain facts, it may be a relevant consideration in assessing the reasonableness of his conduct.  For example, a welder, who is engaged to work in a confined space believing on the assurance of the owner of the premises that no combustible or explosive material is stored nearby, should be entitled to have his perception, as to the presence or absence of dangerous materials, before the jury on a charge of manslaughter when his welding torch causes an explosion and a consequent death.

 

    As noted earlier, the Tuttons raised the defence of mistake of fact at trial.  They argued that the failure to supply insulin was based upon the belief that the child had been cured by Divine intervention and that the failure to provide medical care in timely fashion was based upon the belief that the child was not seriously ill, so medical assistance was not necessary.  The trial judge, it was argued, was in error in telling the jury that for any such belief to be effective as a defence it must have been reasonably held.  It was held in this Court in Pappajohn v. The Queen, [1980] 2 S.C.R. 120, that an honest, though mistaken, belief in the existence of circumstances which, if present, would make the questioned conduct non-culpable would entitle an accused to an acquittal.  It was also held in Pappajohn v. The Queen that the honest belief need not be reasonable, because its effect would be to deny the existence of the requisite mens rea.  The situation would be different, however, where the offence charged rests upon the concept of negligence, as opposed to that of the guilty mind or blameworthy mental state.  In such case, an unreasonable though honest belief on the part of the accused would be negligently held.  The holding of such a belief could not afford a defence when culpability is based on negligent conduct.  I would therefore conclude that the trial judge made no error in charging the jury to the effect that any mistaken belief which could afford a defence in a charge of criminal negligence would have to be reasonable.

 

    In the case at bar, then, the assertion of the Tuttons that they believed a cure had been effected by Divine intervention and that insulin was not necessary for the preservation of the child's life would have to be considered by the jury.  The jury would have to consider whether such belief was honest and whether it was reasonable.  In this, they would be required to consider the whole background of the case.  They would have to take into account the experience of the Tuttons with the child's illness;  the fact that they had seen the result of the withdrawal of insulin on one occasion and that they had been informed of its necessity for the continued care of the child;  and, that Mrs. Tutton had received some formal instruction or training in dealing with diabetes and diabetics.  They would, as well, have to consider whether the belief in a miraculous cure leading to the conclusion that insulin and medical care were not required, though honest, was reasonable.  Upon these facts and all others concerning the matter which were revealed in the evidence, the jury would be required to decide whether the refusal of insulin and medical attention represented a marked and significant departure from the standard to be observed by reasonably prudent parents.

 

    I would dismiss the appeal and confirm the direction for a new trial.

 

//Lamer J.//

 

    The following are the reasons delivered by

 

    LAMER J. -- I have read the reasons of my colleague, Justice McIntyre, and I am in agreement with them, subject to the following remarks.  I am of the view that, when applying the objective norm set out by Parliament in s. 202 of the Criminal Code, R.S.C. 1970, c. C-34, must be made "a generous allowance" for factors which are particular to the accused, such as youth, mental development, education (see Stuart, Canadian Criminal Law: A Treatise (2nd ed. 1987), p. 194; see also Pickard, "Culpable Mistakes and Rape: Relating Mens Rea to the Crime" (1980), 30 U. of T. L.J. 75).  When this is done, as we are considering conduct which is likely to cause death, that is high risk conduct, the adoption of a subjective or of an objective test will, in practice, nearly if not always produce the same result (see Colvin, "Recklessness and Criminal Negligence" (1982), 32 U. of T. L.J. 345).

 

    I should note that Parliament, when enacting s. 202, did not purport to determine the nature of the negligence which is required when grounding  criminal liability thereupon.  My understanding of s. 202 is that Parliament has in that section simply defined the expression "criminal negligence" whenever used in the Criminal Code .

 

    I should finally mention that in this case the constitutionality of s. 205(5)(b) was not in issue.  Indeed, assuming without now deciding that it is a principle of fundamental justice that knowledge of a likely risk or deliberate ignorance thereof (foresight or wilful blindness) is an essential element of the offense of manslaughter, the issue as to whether proof of the substituted element of "criminal negligence" as defined by Parliament and interpreted by this Court satisfies the test set out in R. v. Vaillancourt, [1987] 2 S.C.R. 636, does not arise.  I therefore do not by my concurrence feel precluded or limited when addressing such a constitutional challenge, of course, if and when called upon to do so.

 

    I would, as does my colleague McIntyre J., dismiss the appeal and let the order for a new trial stand.

 

    Appeal dismissed.

 

    Solicitor for the appellant:  Attorney General for Ontario, Toronto.

 

    Solicitors for the respondent Arthur Thomas Tutton:  Kerekes, Collins, Toronto.

 

    Solicitor for the respondent Carol Anne Tutton:  Irwin Koziebrocki, Toronto.