R. v. Naglik [1993] 3 S.C.R. 122: Accused convicted of failing to provide necessaries of life to infant son - Whether objective standard of conduct applicable

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

Constitutional law - Charter of Rights - Fundamental justice - Mens rea - Failure to provide necessaries - Accused convicted of failing to provide necessaries of life to infant son - Whether objective standard of conduct applicable - Whether objective standard violates s. 7 of Canadian Charter of Rights and Freedoms - Criminal Code, R.S.C., 1985, c. C-46, s. 215.

Criminal law - Failure to provide necessaries - Mens rea - Accused convicted of failing to provide necessaries of life to infant son - Whether objective standard of conduct applicable - Whether objective standard violates s. 7 of Canadian Charter of Rights and Freedoms - Criminal Code, R.S.C., 1985, c. C-46, s. 215.

Criminal law - Trial - Charge to jury - Jury asking whether they had "to agree on guilty or not guilty" - Trial judge answering that they had to be "unanimous one way or the other" - Whether charge in error.

The appellant and her common law husband were charged with aggravated assault of, and failure to provide necessaries of life to, their infant son. The infant, then aged eleven weeks, had been brought to hospital, where he was found to have sustained a number of serious injuries which had caused permanent damage. The injuries had been sustained over a period of time, estimated by physicians to be four weeks. The appellant gave exculpatory statements concerning her child's condition to police and other authorities which were inconsistent with the medical evidence at trial. She did not testify at trial. Her common law husband did testify, denying any involvement in causing the injuries to the child, and claiming that the appellant was the child's primary caregiver. His counsel obtained permission to comment on the appellant's failure to testify. In his charge to the jury, the trial judge remarked that the appropriate test to be applied to the charge of failure to provide necessaries was an objective one, and that the jury should convict if they were of the view that the parent "knew, or ought to have known, the seriousness of the child's condition and that it required medical attention". After the jury had retired, they returned to ask "Do we have to agree on guilty or not guilty?" The trial judge answered that they had to be "unanimous one way or the other". The jury returned verdicts of guilty on both counts for both accused. The Court of Appeal allowed the appellant's appeal from her conviction on the count of failure to provide necessaries and ordered a new trial on that count, on the basis that lack of subjective knowledge or honest belief (whether reasonable or not) were sufficient to negate the mens rea for the offence. The court also found that the comment by counsel for the co-accused on the appellant's failure to testify was not prohibited by s. 4(6) of the Canada Evidence Act, by the common law or by s. 11(c) of the Canadian Charter of Rights and Freedoms, and the majority of the court found there was no error in the charge to the jury. The appellant appealed the ruling with respect to comment by counsel for a co-accused and with respect to the charge to the jury. The Crown cross-appealed the Court of Appeal's ruling with respect to the mens rea for failure to provide necessaries.

Held (L'Heureux-Dubé and Gonthier JJ. dissenting in part): The appeal and cross-appeal should be allowed. The appellant's convictions on both counts should be set aside and a new trial ordered on each count.

(1) Mens Rea for Failure to Provide Necessaries

Per La Forest, L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ.: Lamer C.J.'s reasons were agreed with respecting the mens rea for s. 215, except his adoption of the objective test for penal negligence discussed in R. v. Gosset. For the reasons given in R. v. Creighton, in determining what the accused "ought to have known", the trier of fact must determine the conduct of the reasonable person when engaging in the particular activity of the accused in the specific circumstances that prevailed. These circumstances do not include the personal characteristics of the accused, short of characteristics which deprived her of the capacity to appreciate the risk. Youth, inexperience, and lack of education were not suggested on the evidence to deprive the accused of the capacity to appreciate the risk associated with neglecting her child. Therefore, she must be held to the standard of the reasonably prudent person.

Per Lamer C.J. and Sopinka, Iacobucci and Major JJ.: While there is no language in s. 215 such as "ought to have known" indicating that Parliament intended an objective standard of fault, the reference to the failure to perform a "duty" suggests that the accused's conduct in a particular circumstance is to be determined on an objective, or community, standard. The concept of a duty indicates a societal minimum which has been established for conduct: as in the law of civil negligence, a duty would be meaningless if every individual defined its content for him or herself according to his or her subjective beliefs and priorities. The policy goals of the provision support this interpretation. Section 215 is aimed at establishing a uniform minimum level of care to be provided for those to whom it applies, and this can only be achieved if those under the duty are held to a societal, rather than a personal, standard of conduct.

Section 215(2)(a)(ii) makes the failure to fulfil the duty to provide necessaries an offence where "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". It thus punishes a marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanent endangerment to the health, of the child. The Crown must prove beyond a reasonable doubt both that the circumstances listed in subs. (2)(a)(ii) were objectively foreseeable in the circumstances, and that the conduct of the accused represented a marked departure from the standard of care required by those circumstances. This objective basis of criminal liability does not per se violate the Charter. Nor does a conviction under s. 215 carry with it such social stigma and such a severe penalty that a conviction based on penal negligence would violate s. 7 of the Charter. While a conviction under s. 215(2)(a)(ii) will no doubt result in the stigmatization, or even vilification, of the accused, this stigmatization is neither unfairly disproportionate nor unrelated to the culpable conduct of which the accused was found guilty. The lack of a minimum penalty means that the sentencing judge can tailor the sentence to the circumstances of the particular offence and offender, eliminating the danger of the accused being punished to a degree out of proportion to the level of fault actually found to exist. The availability of a defence of lawful excuse in s. 215(2) also serves to prevent the punishment of the morally innocent, even where the accused fails to meet the standard of care imposed by the objective test of penal negligence.

(2) Charge to the Jury

Per Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.: Answers to questions from the jury are extremely important, and carry influence far exceeding instructions given in the main charge. If the jury asks a question about an issue addressed in the main charge, it is clear that they did not understand or remember that part of the main charge, and it is also clear that they must exclusively rely on the answer given by the trial judge to resolve any confusion or debate on the point which may have taken place in the jury room during their deliberations up to that point. The trial judge's answer to the jury's question in this case, which gave the jury the impression that they had no right to disagree, superseded the initial instruction in the minds of the jury. Accordingly, it is possible, if not likely, that the jury members resumed their deliberations with the mistaken impression that they were required to reach a verdict, and that they had misunderstood the earlier reference to their right to disagree. Given this error, a new trial must be ordered on both counts.

Per L'Heureux-Dubé and Gonthier JJ. (dissenting on this issue): The trial judge's charge to the jury contained no error. There is no suggestion that the response to the jury's query failed to satisfy their concerns or that it raised further doubts as to the previous instructions. The charge must be read as a whole. Here the trial judge had already made it clear to the jury in his initial instructions that they had the right to disagree, and an appellate court should assume that such instructions are understood. The question as formulated by the jury shows that the members were not under any misapprehension about their ability to disagree, but rather that they were uncertain as to whether or not they needed to be unanimous in reaching a verdict. To that specific interrogation, the trial judge gave a full, careful and correct response. There is no further obligation to provide answers to questions that are not asked. Moreover, any doubt was completely laid to rest by the fact that the jurors were individually polled at the request of counsel for the appellant. The principal appeal should be dismissed, the cross-appeal allowed and the conviction restored.

(3) Comment by Counsel for Co-Accused on Accused's Failure to Testify

Per Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.: It is not necessary to address the issue relating to comment by counsel for a co-accused since a new trial is to be held given the disposition regarding the charge to the jury.

Per L'Heureux-Dubé and Gonthier JJ.: There is no rule of law prohibiting such comment, which is permitted as part and parcel of the right of an accused to make full answer and defence.

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