[1] Where identity is an issue, remember to include any further instructions that may be relevant (e.g., eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment.

Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B. (G.), [1990] 2 S.C.R. 3.

[2] Where the Crown relies on an omission, this element should end with the words “…that it was his/her legal duty to do”.

[3] If there is an issue about whether (NOC) is dead, further instructions will be required.

[4] This instruction will have to be modified where the accused has a legal burden of proof, such as for mental disorder and non-insane automatism.

[5] In R. v. J.F., [2008] 3 S.C.R. 215 the Supreme Court of Canada approved the phrase “marked and substantial” to explain the phrase “wanton and reckless disregard” in section 219 of the Code, which defines criminal negligence. This is a higher standard than what is required for other negligence-based criminal offences (e.g., dangerous driving), which merely require proof of a “marked departure” from the standard of a reasonable person: R. v. Beatty, [2008] 1 S.C.R. 49; see also R. v. Javanmardi, 2019 SCC 54, paras 21-23.

[6] In many cases, it will be appropriate at this point to specify for the jury the activity in which the accused was engaged (e.g., driving, flying a plane, performing surgery, etc.) rather than referring generally to the “circumstances”. For example, the jury may be instructed to consider whether the accused’s conduct represented a marked and substantial departure from the behavior of a reasonable bush pilot. However, the accused’s purely personal characteristics (e.g., inexperience, fatigue, intoxication, etc.) are not relevant in defining the standard of care. As said in R. v. Creighton, “The legal standard of care is always the same—what a reasonable person would have done in all the circumstances. The de facto or applied standard of care, however, may vary with the activity in question and the circumstances in the particular case”: R. v. Creighton, [1993] 3 SCR 3 at para 139. See also: R. v. Javanmardi, 2019 SCC 54, at paras 36-40, where the Court stated:

[36] This Court most comprehensively considered how to assess and apply the reasonable person standard in Creighton. In that case, a woman died as a result of a cocaine injection given to her by Marc Creighton, a drug dealer. McLachlin J. clarified that the modified objective standard “is that of the reasonable person in all the circumstances of the case” (p. 41). She endorsed the “reasonable person” standard in order to maintain “a uniform standard for all persons … regardless of their background, education or psychological disposition” (p. 60). In her view, “[w]ithout a constant minimum standard, the duty imposed by the law would be eroded and the criminal sanction trivialized” (p. 70). She concluded that Mr. Creighton’s habitual drug use was not to be considered in setting the “reasonable person” standard.

[37] McLachlin J. explained, however, that greater care may be expected of the “reasonable person” on the basis of the nature and circumstances of the activity (p. 72). Certain activities, for example, require special attention and skill. An accused undertaking such an activity may be found to have breached the reasonable person standard if he or she is not qualified to provide the special care that the activity requires, or negligently failed to exercise such care while engaged in the activity. In this way, the law maintains a “constant minimum standard” for every person who engages in an activity requiring special care and skill: they must be both qualified and exercise the special care that the activity requires.

[38] Creighton’s activity-sensitive approach to the modified objective standard has been applied in a variety of contexts, including in cases involving driving, hunting and parenting (Beatty, at para 40; R. v. Gendreau, 2015 QCCA 1910, at para. 30 (CanLII); J.F., at paras. 8-9). These decisions confirm that while the standard is not determined by the accused’s personal characteristics, it is informed by the activity. In this case, the activity is administering an intravenous injection, and the standard to be applied is that of the reasonably prudent naturopath in the circumstances.

[39] In measuring Ms. Javanmardi’s conduct against this standard, Villemure J. was not only entitled, she was obliged to consider her prior training, experience and qualifications as a naturopath. Where the Crown’s theory is, as it is in this case, that the accused engaged in an activity without the requisite training and knowledge, the accused’s activity-specific knowledge and experience are clearly relevant to determining whether the applicable standard of care was met. An accused’s training and experience may, for example, be used to rebut an allegation of being unqualified to engage in an activity. Evidence of training and experience may also be used to show how a reasonable person would have performed the activity in the circumstances.

[40] In this case, Ms. Javanmardi’s professional experience and her education were relevant in determining whether she was qualified for the activity in which she was engaged and were, as a result, relevant in determining whether she met the applicable standard of care. I see no error in Villemure J.’s treatment of this evidence, which the defence adduced to rebut the allegation that Ms. Javanmardi was not qualified to administer an intravenous injection. The Court of Appeal, with respect, erred in overturning Ms. Javanmardi’s acquittals on this basis.

[7] This instruction is intended to reflect the fault element in R. v. J.F., [2008] 3 S.C.R. 215, para 9, in which the Court said that the Crown has to prove that the accused’s conduct represented a marked and substantial departure from the conduct of a reasonable and prudent person in the circumstances where the accused either recognized and ran an obvious and serious risk to the lives or safety of others, or alternatively, gave no thought to that risk. See also R. v. Roy, 2012 SCC 26, at para 36.

[8] This instruction may have to be modified where there is evidence that the accused did not have either the capacity to appreciate the nature and quality of his or her “intentional” act or the capacity to appreciate the risk that the alleged act or omission entailed. See: R. v. Naglik, [1993] 3 S.C.R. 122; 83 C.C.C. (3d) 526, at 546.

[9] See R. v. Roy, 2012 SCC 26, at para 36-42 (3D) 219; R. v. J.F., [2008] 3 S.C.R. 215, at para 9; R. v. Beatty, [2008] 1 S.C.R. 49, at paras 43 and 47-49.

[10] R. v. Tutton, [1989] 1 S.C.R. 1392, at para 44; R. v. Creighton, [1993] 3 S.C.R. 3, at para 138.

[11] Following R. v. Nette, [2001] 3 S.C.R. 488, it would appear that this formulation of the general test of causation is not reversible. It expresses the central element of the test in R. v. Smithers, [1978] 1 S.C.R. 506, which stipulated that a cause should be “not insignificant.” The two formulations are equivalent. Thus Nette is regarded as affirming the standard in Smithers, but providing a positive alternative for expressing it. This interpretation is reinforced by the Court’s decision in R. v. Maybin, 2012 SCC 24, in which it confirmed that the correct test is found in Smithers and Nette. Note also that the Court stated:

Further, this Court emphasized that causation issues are case-specific and fact-driven. The choice of terminology to put to a jury is discretionary in the context of the circumstances of the case (Nette, at para 72). Implicit in Nette then, is the recognition that different approaches may be helpful in assessing legal causation, depending upon the specific factual context (at para 17).

If the facts of the case require it, you may have to include one or more of the following statements:

“There must not be anything that somebody else does later (or some other subsequent event) that results in (NOA)’s conduct no longer being a contributing cause of (NOC)’s death. If you find that (NOA)’s conduct contributed significantly to (NOC)’s death, it does not matter that proper or timely (medical) treatment might have saved (NOC)’s life. Nor does it matter that what (NOA) did only accelerated (NOC)’s death from some existing disease or condition.”

You may also wish to refer to Criminal Code, ss. 224-228. In Nova Scotia, the Court of Appeal has prescribed a more extensive instruction on intervening cause which has not been applied in other provinces: See: R. v. Reid, [2003] NSCA 104, [2003] N.S.J. No. 360 (C.A.).

[12] Delete the reference to expert evidence if none has been given.

[13] Note that in driving cases consideration should be given to Criminal Code, s. 662(5) which incorporates included offences that are defined in s. 249 and s. 249.1(3). Other included offences may arise from the wording of the indictment.