(Last revised November 2017)
(Read relevant part of indictment or count.)
1. (NOA) (specify alleged act or omission);[2]
2. In (specify alleged act or omission), (NOA) showed wanton or reckless disregard for the lives or safety of others; and
3. (NOA)’s conduct caused bodily harm to (NOC).
Unless you are satisfied beyond a reasonable doubt that the Crown has proved all these essential elements, you must find (NOA) not guilty of criminal negligence causing bodily harm.
If you are satisfied beyond a reasonable doubt of all these essential elements, [and you have no reasonable doubt[3] after considering the defence(s) (specify defences) about which I will instruct you] you must find (NOA) guilty of criminal negligence causing bodily harm.
(Where the Crown relies on both an act and an omission:)
The Crown must prove beyond a reasonable doubt either of the following:
1. that (NOA) (specify alleged act); or,
2. that (NOA) failed to (specify alleged omission), which s/he had a legal duty to do.
The Crown does not have to prove both. Nor do you all have to agree on the same act or omission as long as each of you is satisfied that one or the other has been proved beyond a reasonable doubt.
The law imposes a duty on (specify category of persons, e.g. parents, guardians, teachers, police officers, etc.) to ( specify obligation or duty). First, you must determine whether this duty applies to (NOA) in the circumstances of this case. Second, you must determine whether s/he failed to perform that duty.
(Review relevant evidence of act and omission and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) either (specify alleged act) or failed to (specify alleged omission), which s/he had a legal duty to do, you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) either (specify alleged act) or failed to (specify alleged omission), which s/he had a legal duty to do, you must go on to the next question.
(Where the Crown relies only on an act:)
The Crown must prove beyond a reasonable doubt that (NOA) (specify alleged act). It is for you to say, based on all the evidence, whether (NOA) (specify alleged act).
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) (specify alleged act), you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) (specify alleged act), you must go on to the next question.
(Where the Crown relies only on an omission:)
The Crown must prove beyond a reasonable doubt that (NOA) had a legal duty to (specify), and that (NOA) failed to perform that duty.
The law imposes a duty on (specify category of persons, e.g. parents, guardians, teachers, police officers, etc.) to (specify obligation or duty). First, you must determine whether this duty applies to (NOA) in the circumstances of this case. Second, you must determine whether s/he failed to perform that duty.
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) had a legal duty to (specify) and that s/he failed to perform it, you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) had a legal duty to (specify) and that s/he failed to perform it, you must go on to the next question.
To prove that (NOA) showed a wanton or reckless disregard for the lives or safety of others, the Crown does not have to prove that (NOA) meant to kill or seriously harm (NOC), or anybody else. Rather, the Crown must prove beyond a reasonable doubt that:
1. (NOA)’s conduct showed a marked and substantial departure[4] from the conduct of a reasonable person in the circumstances;[5] and
2. A reasonable person in the same circumstances would have foreseen that this conduct posed a serious risk to the lives or safety of others .[6]
(NOA)’s conduct is measured against an objective standard, specifically, what a reasonable person would have done or foreseen in the circumstances. The standard does not change because (NOA) was (specify, e.g., inexperienced, fatigued, intoxicated, etc.).[7]
(Where appropriate, review evidence relating to the standard of care here, e.g., expert testimony.)
Next, consider whether (NOA)’s conduct was a marked and substantial departure from that standard.
(Review relevant evidence, including evidence relating to (NOA)’s state of mind,[8] experience, and expertise if any, as well as any explanation[9] for (NOA)’s conduct.)
Unless you are satisfied beyond a reasonable doubt that what (NOA) did (or failed to do) showed a wanton or reckless disregard for the lives or safety of others, you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that what (NOA) did (or failed to do) showed a wanton or reckless disregard for the lives or safety of others, you must go on to the next question.
To prove that (NOA) caused bodily harm to (NOC) the Crown must prove beyond a reasonable doubt that (NOC) suffered bodily harm and that (NOA)’s conduct contributed significantly to it.[10]
“Bodily harm” is any hurt or injury that interferes with a person’s health or comfort and is more than just brief or minor.
A person’s conduct may contribute significantly to another person’s bodily harm even though that conduct is not its sole or main cause. You must consider all the evidence concerning the cause of bodily harm to (NOC), including the expert evidence of (NOW),[11] in determining whether the Crown has proved that (NOC) suffered bodily harm and that (NOA)’s conduct contributed significantly to it. It is for you to decide.
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA)’s conduct caused bodily harm to (NOC), you must find (NOA) not guilty of criminal negligence causing bodily harm.
(Insert instructions on any included offences.[12])
If you are satisfied beyond a reasonable doubt that (NOA)’s conduct caused bodily harm to (NOC), you must find (NOA) guilty of criminal negligence causing bodily harm.
[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 duty to do”.
[3] 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.
[4] 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, 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.
[5] 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.
[6] 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.
[7] 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.
[8] 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.
[9] R. v. Tutton, [1989] 1 S.C.R. 1392, at para. 44; R. v. Creighton, [1993] 3 S.C.R. 3, at para 138.
[10] 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).
[11] Delete the reference to expert evidence if none has been given.
[12] 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.