Are There Two Tiers of Criminal Liability for Strictly Regulated Organizations and Their Management Arising From Workplace or Other Operationally Related Fatalities?
On November 14, 2019 the Supreme Court of Canada (“SCC”) released its decision in R. v. Javanmardi in which it simplified the test for wrongful act manslaughter (“manslaughter”). In so doing, Abella J. speaking for the majority provided a very clear and precise delineation between manslaughter (s. 222(5)(a) of the Criminal Code) and criminal negligence causing death (“criminal negligence”) (s. 219(1)). The Court’s analysis reveals two tiers of criminal liability for strictly regulated organizations and their management arising from workplace or other operationally related fatalities.
In Javanmardi, a Quebec naturopath was charged with one count each of criminal negligence and manslaughter as the result of the death of an elderly patient she had treated by way of an intravenous injection of nutrients. The patient quickly developed an infection and died shortly after the treatment.
Pursuant to s. 31(1) of Quebec’s Medical Act (a strict liability provision), naturopaths are not permitted to administer intravenous injections. Although the Crown identified several of the accused’s alleged acts or omissions as the bases for criminal negligence and as the predicate offences for manslaughter, central to its theory of liability was her breach of s. 31(1).
The accused acquitted at trial, the Crown was successful in its appeal to the Quebec Court of Appeal, which set aside the acquittals, substituted a conviction on the manslaughter charge and ordered a new trial on the criminal negligence charge. Before the SCC, Abella J. allowed the accused’s appeal and restored the acquittals. She found that the Court of Appeal had erred in its treatment of the trial judge’s application of the reasonable person standard. In addition, the findings of fact the trial judge had made supporting her conclusions that the accused’s departure from the standard of care expected did not rise to the level required for criminal convictions to be registered.
In beginning her analysis, Abella J. set out and compared the essential elements of criminal negligence and manslaughter:
As to criminal negligence, the wrongful act is made out when the accused does anything or omits to do anything that is its duty imposed by law to do that causes death. The fault requirement requires that the act or omission show wanton and reckless disregard for the lives or safety of other persons, requiring a measure of conduct on the reasonable person standard. A mere departure is insufficient. The phrase “wanton and reckless disregard” requires that it be marked and substantial in circumstances where the accused either recognized and ran an obvious and serious risk to another’s life or gave no thought to that risk; and,
As to manslaughter, the wrongful act or omission is complete once the Crown has proved that the accused committed the predicate, unlawful act that caused the death of the victim. As to the fault requirement, there are two parts the Crown must prove: (1) the fault requirement for the predicate offence; and, (2) that the unlawful act created the objectively foreseeable risk of bodily harm (not death), that was neither trivial nor transitory. In a case like the one before the Court in which the predicate offence is one of strict liability, the departure from the standard of care reasonably expected in the circumstances must be marked as opposed to mere, the latter being sufficient to ground regulatory, but not criminal, liability. Differing from previous judicial treatments, Abella J. found that it would be superfluous to require that the unlawful act be found to be objectively dangerous, it being one and the same with the objectively foreseeable risk of bodily harm.
There is a paucity of judicial guidance on what distinguishes a “marked” departure from one that is “marked and substantial”, other than it is a matter of degree arising from a contextual analysis of the prevailing circumstances: R. v. J.F.,  3 S.C.R. 215.
Both criminal negligence and manslaughter are forms of culpable homicide. They are both indictable offences, punishable by life imprisonment and unlimited fines. They also rely on breaches of legal duties, albeit not exclusively, in establishing alleged wrongful omissions. Statutory duties created by either the Criminal Code (for example, the s. 217.1 workplace duty of care) or regulatory legislation (such as workplace safety and environmental legislation) can inform both offences, the latter so long as they create offences of strict, as opposed to, absolute, liability. Given their reliance in definition on tests rooted in reasonableness, both are measures of conduct in relation to the risk created. There may be other shared traits, but it is the required degree of measurement for each that distinguishes them.
The SCC’s use of the adjective “marked” in relation to manslaughter, in comparison to “marked and substantial” for criminal negligence, reflects its conclusion in previous case law that the latter is the more serious of the two offences: J.F., supra. Unlike that in manslaughter, the fault requirement in criminal negligence requires that the act or omission show wanton and reckless disregard. Prior to the 1982 introduction of the Charter, and the SCC’s numerous decisions following it that diluted the constitutionally required minimum fault element for criminal offences from a positive state of mind to negligence (or an objective measure of conduct), this phrase was defined as the advertence or willful blindness to the risk, commensurate with recklessness: O’Grady v. Sparling,  S.C.R. 804. Recognizing and running a serious risk, in the minds of many, may very well be one and the same as advertence, but the distinction in the court’s mind is that the former, as a measure of conduct and not a subjective inquiry into the accused’s state of mind, fits more closely with the purpose of the prohibition: R. v. Tutton,  1 S.C.R. 1392. The same can be said when willful blindness (deliberately ignorant of the circumstances) is compared to simply not thinking of the risk created.
In regard to manslaughter, there is no reference to a requirement that the unlawful act or omission show wanton and reckless disregard for the lives or safety of others; only that the act or omission creates the objectively foreseeable risk of bodily harm, not death, that is neither trivial nor transitory. In comparison to criminal negligence, this is a measurement substantially less than recognizing and running a serious risk. In the result, manslaughter is the less serious of the two offences justifying a lower (a marked) measure of conduct.
The irony, as former University of Windsor Law Professor Larry Wilson observed in “Beatty, J.F., and the Law of Manslaughter” ((2010), 47 Alta. L. Rev. 651 at 668), is “that criminal negligence has become the more serious of the crimes, even though when it was initially introduced it was in response to a concern that jurors were more likely to convict of something called criminal negligence than the more serious sounding manslaughter.” Be that as it may, unless and until the SCC elevates the fault requirement for manslaughter based on a predicate offence in the form of the breach of a statutory duty of care within, at least, the category of strict liability, to “marked and substantial” from “marked”, manslaughter is, in effect, if not in law, an offence included in that of criminal negligence.
In relation to strictly regulated organizations and their management, the result is that there are two paths to criminal liability for workplace or other operational fatalities. One (manslaughter) is judicially considered less serious than the other (criminal negligence) and therefore less onerous in its fault requirements, even though a conviction on either exposes an accused to the same liability (life imprisonment and unlimited fines). One can only expect that in circumstances where a law enforcement officer concludes that an omission causing death is more than mere but perhaps not marked and substantial, the accused will be charged with both. An acquittal on a charge of criminal negligence may still leave the accused exposed on manslaughter. To draw a rough parallel with murder, the categorization of criminal negligence into second (by manslaughter) and first degrees would be apt.
There is nothing new as to how to avoid the tragedy of operational fatalities and the nightmare of regulatory, or worse, criminal prosecution, although it may be easier said than accomplished. Exercise reasonable care by: (1) maintaining written policies and procedures reflecting and addressing the regulatory risks the organization’s operations engage: (2) satisfactory initial employee training and regular re-training thereon; and, (3) adequate employee supervision to ensure the policies and procedures are being followed, coupled with progressive discipline, up to and including dismissal, for those who fail to follow their training and the written policies and procedures.