When Does Negligence Become Criminal? The Criminal Code of Canada contains several negligence based criminal offences, including dangerous driving as well as failure to provide the necessaries of life. The broader offence of criminal negligence is contained at section 219 of the Criminal Code. Section 220 is the provision dealing with criminal negligence causing death. They read as follows: 219 (1) Everyone is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that 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 duty imposed by law. *** 220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable (a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (b) in any other case, to imprisonment for life. In the recent case of R. v. Javanmardi, the Supreme Court of Canada commented on the elements of criminal negligence offences, specifically criminal negligence causing death. In the Javanmardi case, a naturopath in Quebec provided a patient with an intravenous injection of nutrients. The patient ended up suffering endotoxic shock and subsequently died. The naturopath was charged with the offences of criminal negligence causing death and unlawful act manslaughter. At trial the judge acquitted the naturopath of all charges, as they felt the actions of the accused did not show a wanton or reckless disregard. The trial judge felt that the naturopath had the necessary skills to administer injections, had followed sufficient protocols and had taken adequate caution in the case. The Quebec Court of Appeal disagreed and felt that the intravenous injection was inherently dangerous and the conduct of the naturopath was a marked departure from reasonable standards. The Court of Appeal convicted the accused of unlawful act manslaughter and ordered a new trial on the charge of criminal negligence causing death. In their decision, the majority of the Supreme Court of Canada assessed the fault element of the offence of criminal negligence – specifically when does an accused’s act or omission “show wanton or reckless disregard for the lives or safety of other persons”. They confirmed that this offence imposes a modified objective standard of fault. It is the objective reasonable person standard. The Court outlined that, “As with other negligence-based criminal offences, the fault element of criminal negligence causing death is assessed by measuring the degree to which the accused’s conduct departed from that of a reasonable person in the circumstances.” The level of departure may vary with each offence – for criminal negligence causing death it is the elevated standard of marked and substantial. However, these standards all ask “whether the accused’s actions created a risk to others, and whether a reasonable person would have foreseen the risk and taken steps to avoid it if possible”. In this case the Supreme Court upheld the acquittals of the trial judge. The Court felt that the actions of the accused met the reasonableness standard. They concluded that the factual findings of the trial judge supported the conclusions that an intravenous injection, performed properly by a naturopath qualified to administer such injections, did not pose an objectively foreseeable risk of bodily harm in the circumstances. Of note, particularly for naturopaths and other professionals, the Supreme Court of Canada outlined that the professional training and qualifications of an accused were factors to be considered in assessing the applicable standard of care for criminal negligence. The Court viewed these factors as particularly relevant considerations in assessing whether the conduct of an accused departed from that of a reasonable person in similar circumstances. If you have been charged with a criminal offence, or have questions pertaining to a similar situation, contact criminal defence lawyer David M. Schell of Devry Smith Frank LLP directly at (416) 446-5096, or alternatively, at david.schell@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal LawNovember 28, 2019July 5, 2023
Cannabis: Legislation passed For Legalization – But What Happens Next? On October 17, 2018, the historic formation of a new industry was birthed and the decriminalization of cannabis and its recreational use was finally introduced. A day whereby some thought would most certainly never be the case, however, the general perception of liberalism in Ontario may, in actual fact, not be as unrestricted as one may think. So, what does it mean exactly? – Inevitably, despite months of deliberation, the concept of what constitutes full legalization is still lacking clarity and for that reason alone, it should be acknowledged that there are some considerations that one ought to possibly observe when possessing and partaking in recreational use of cannabis legally. Nonetheless, three main issues still seem to be at the forefront of peoples minds: Selling Cannabis Unless you are a licensed retailer, you are prohibited from selling Cannabis to other individuals. As tempting as it may seem to sell a gram or two to a friend, it is strongly advised you obtain the proper licensing beforehand, or you run the risk of a possible custodial sentence and/or a hefty fine. You can, however, give the cannabis away, to an adult friend, without the expectation of remuneration, on the basis that it is less than 30 grams worth. Travelling with Cannabis As a Canadian, you may be able to travel with the stipulated amount of up to 30 grams of cannabis on domestic flights only. Yet, if you intend to cross over into international territory, it is still a criminal offence to have it on your person. – Even if you are intending to end your journey in a legalized US state. Driving It is illegal, under the Criminal Code of Canada , to operate a vehicle while impaired by alcohol or drugs or where you have exceeded a certain level of alcohol or drug concentration in your blood. The legislation, Bill C-45, amended the Criminal Code such that police can now conduct roadside saliva tests on drivers they suspect to be under the influence of drugs and how you are reprimanded depends on the amount of THC detected. – Which can leave a trace for several hours after smoking cannabis? It is recommended that you avoid driving and consuming cannabis altogether to avoid these penalties. That said, indeed you can still be charged if you are found to be in violation of the Cannabis Act However, judging by the vagueness of this legislature, it would be fair to anticipate what might be deemed a few teething problems. Devry Smith Frank LLP will be monitoring the province’s efforts to adhere to and enforce the Cannabis Act in Ontario. If you have questions about cannabis laws or need advice understanding how the recent legislation will impact you both professionally and personally, please contact our office online or directly on (416) 449-1400 “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Cannabis Law, Criminal LawOctober 20, 2018June 16, 2020
If My Guests Drive Drunk/Stoned, Am I Responsible? October is here, and over the next few months, there will be a number of family gatherings and work events that may involve the consumption of alcohol/drugs. When your guest leaves your house and drives while impaired, can you be held responsible if they injure themselves or others? Being a host, you should always be concerned about how your guests are getting home, who is the designated driver, and always be ready to offer up your couch or blow-up mattress for the night. Luckily, we have options like Uber, taxis, and even a service called Safe-T-Ride that will pick you up and drive you home (IN YOUR OWN CAR!) so that you and your vehicle arrive home safely. Morally, as responsible and caring hosts, we should ensure the safety of our guests while in our care in or around our home. The case law is fairly clear about that but once your guest leaves your home does that duty end? The short answer is probably (but don’t take chances and keep your guest and the public safe!). The Supreme Court of Canada in Childs v. Desormeaux confirmed that social host liability probably does not exist in Canada. The homeowner that has a party serving alcohol may have no duty of care to members of the public who may be injured by the activities of the impaired guest after they have left the care of the host. This reasoning may also apply with parties where marijuana or other drugs are used. Regrettably we may see an increase in impaired driving with legalization of marijuana use for non-medicinal purposes. According to Marc Spivak, lawyer and managing partner of Devry Smith Frank LLP’s personal injury group, the Supreme Court of Canada decision may leave open liability on the host if: all of the alcohol that was served was supplied by the host and consumed there and there was some sort of relationship between the host of the party and the guest whereby the host would have control over the extent of the alcohol consumption and whether the guest was intoxicated upon leaving the home. Social host liability cases can take years to litigate with appeals to higher courts by the upset loser of the litigation. These cases cost hundreds of thousands of dollars to litigate and reflect the loss of life or loss of enjoyment of life that nobody should have to experience. If you are hosting a party this season, be prudent and take steps to avoid such possible accidents. Plan before your guests arrive and ensure your guests have safe transportation home. Judgment ability may change during your festivities. Make sure that won’t affect your guest’s safety and what happens after leaving your home. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal Law, Personal InjuryOctober 6, 2017June 18, 2020
