Inconsistent verdicts

R. v. J.F., 2008 SCC 60 (released last week) deals with a sad case where a child was killed in foster case. The Court considered the curious situation where the accused, the child's foster father, was charged with manslaughter by criminal negligence and manslaughter by failing to provide the necessaries of life. He was convicted by a jury on the first count, but acquitted on the second. The Court ruled the the verdicts inconsistent. A case comment and part of the decision follow.

M was four years old when he died in his foster home from multiple blunt traumas to his head. M's body was extensively bruised. M's foster mother confessed to beating M and pleaded guilty to manslaughter. The accused, M's foster father, was charged with manslaughter by criminal negligence and manslaughter by failing to provide the necessaries of life. He was convicted by a jury on the first count, but acquitted on the second. The accused appealed his conviction. A majority of the Court of Appeal overturned the conviction and ordered a new trial on the charge of manslaughter by criminal negligence on the basis that the verdicts were inconsistent. The Crown appealed as of right on the issue of inconsistent verdicts. The accused cross‑appealed the order for a new trial, contending that an acquittal ought to have been entered.

The Supreme Court held that the appeal should be dismissed and the cross‑appeal should be allowed. The order setting aside the conviction on the charge of manslaughter by criminal negligence should be affirmed and an acquittal entered.

The verdicts rendered at trial are inconsistent and the conviction of manslaughter by criminal negligence must be quashed. There was no reasonable basis upon which to convict and acquit the accused at the same trial, of the same offence committed in the same way against the same victim. The accused was tried on two counts of manslaughter by omission. Though each count alleged different "underlying" or "predicate" offences, the accused's guilt in respect of both counts was made by the Crown to depend on exactly the same failure to perform exactly the same duty: the duty to protect his foster child from foreseeable harm from his spouse.

The actus reus, the prosecution theory, and essentially the fault element are common to both offences. The count of failure to provide the necessaries of life required proof of a marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the omission would lead to a risk of danger to M's life, or a risk of permanent endangerment to his health. Criminal negligence, the more serious offence, required proof that the same omission represented a marked and substantial departure from the conduct of a reasonably prudent parent in circumstances where the accused either recognized and ran an obvious and serious risk to M's life or gave no thought to that risk. The conviction can only be supported upon a finding that the accused failed in his duty to protect M, the factual foundation and the gravamen of both counts.

The verdicts signify that a lesser degree of fault was not established whereas a greater degree of fault was proven beyond a reasonable doubt. Even if the fault requirements were treated as equivalent, the verdicts are incomprehensible.

The verdicts cannot be reconciled retrospectively based on arguments that the offences differ or the trial judge misdirected the jury. Abstract differences between the offences formed no part of the trial and are of no relevance on the facts of the case. Nor is it likely that the jury was misled by the trial judge's instructions with respect to failure to provide the necessaries of life. Even if the intructions were erroneous, improper instructions do not make improper verdicts proper, nor inconsistent verdicts consistent.

Where criminal negligence and failure to provide the necessaries of life are alleged, the jury first should consider whether the accused failed a duty to provide the necessaries of life. If so, the jury is bound to find the accused guilty of that offence. The jury then should consider whether the accused, in failing to provide the necessaries of life, showed a wanton or reckless disregard for the life or safety of the child. If so, the jury is bound to find the accused guilty of criminal negligence. If not, the jury could still find the accused guilty of failure to provide the necessaries of life, but not of criminal negligence.

This is not an appropriate case in which to order a new trial. Rather, an acquittal should be entered on the count of manslaughter by criminal negligence. Since, in this case, the Crown did not appeal the accused's acquittal on the count of manslaughter by failing to provide the necessaries of life, a new trial would deprive the accused of the benefit of his acquittal and expose him to a finding that he did in fact commit the offence of which he was acquitted.

The Court writes:

[7] The fault element required for conviction at trial was essentially common to both counts of manslaughter. On count 1, the requisite fault element was that of the underlying offence of criminal negligence; on count 2, the requisite fault element was that of failure to provide the necessaries of life. Neither criminal negligence nor failure to provide the necessaries of life requires proof of intention or actual foresight of a prohibited consequence. Under both counts, the jury was required to determine not what the respondent knew or intended, but what he ought to have foreseen.

[8] On the count alleging failure to provide necessaries, the Crown was bound to establish that the respondent's failure to protect his foster child represented "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": R. v. Naglik, 1993 CanLII 64 (S.C.C.), [1993] 3 S.C.R. 122, at p. 143 (emphasis added). It will later become apparent why I have emphasized the word "risk" in this description of the offence by the Chief Justice, speaking for the Court on this point.

[9] On the count alleging criminal negligence, the Crown was bound to show that the respondent's very same omission represented a marked and substantial departure (as opposed to a marked departure) from the conduct of a reasonably prudent parent in circumstances where the accused either recognized and ran an obvious and serious risk to the life of his child or, alternatively, gave no thought to that risk: R. v. Tutton, 1989 CanLII 103 (S.C.C.), [1989] 1 S.C.R. 1392, at pp. 1430-31; R. v. Sharp reflex, (1984),12 C.C.C. (3d) 428 (Ont. C.A.).

[10] The difference between a marked departure and a marked and substantial departure has been considered in several appellate decisions since Naglik and Tutton, mainly but not exclusively in the context of driving offences: See, for example, R. v. Willock 2006 CanLII 20679 (ON C.A.), (2006), 210 C.C.C. (3d) 60 (Ont. C.A.); R. v. L. (J.) 2006 CanLII 805 (ON C.A.), (2006), 204 C.C.C. (3d) 324 (Ont. C.A.); R. v. Palin (1999), 135 C.C.C. (3d) 119 (Que. C.A.); R. v. Fortier 1998 CanLII 12917 (QC C.A.), (1998), 127 C.C.C. (3d) 217 (Que. C.A.); R. v. Brown 2000 CanLII 2048 (ON C.A.), (2000), 134 O.A.C. 151; R. v. Baker 2006 CanLII 19332 (ON C.A.), (2006), 209 C.C.C. (3d) 508 (Ont. C.A); R. v. E. (A.) 2000 CanLII 16823 (ON C.A.), (2000), 146 C.C.C. (3d) 449 (Ont. C.A.). This case does not turn on the nature or extent of the difference between the two standards.

[11] A brief comment on this branch of the matter will therefore suffice. If the fault element under both counts was the same — if a marked departure was sufficient in both instances — an acquittal on one and a conviction on the other would be plainly inconsistent because both counts alleged the identical actus reus as well. It is undisputed, however, that criminal negligence, unlike failure to provide the necessaries of life, involves a marked and substantial departure from the norm of a reasonable person. In this light, the verdicts at trial — not guilty of failing to provide necessaries, yet guilty of criminal negligence — are not only inconsistent, but incomprehensible as well.

[12] Moreover, Parliament has made it clear not only in the relevant procedural provisions of the Criminal Code, R.S.C. 1985, c. C-46, but also in the sentencing provisions that criminal negligence is the more serious of the two offences. Criminal negligence causing bodily harm must be prosecuted by indictment; failure to provide the necessaries of life, a hybrid offence, can be prosecuted either by indictment or on summary conviction. Criminal negligence is punishable by a maximum of 10 years' imprisonment; failure to provide the necessaries of life is punishable, on indictment, by a maximum of 5 years (at the time of trial, 2 years) and, on summary conviction, by 18 months (at the time of trial, 6 months).

[13] That criminal negligence is a more serious offence, signifying more blameworthy conduct, has been recognized by the courts as well. This is reflected in cases where the accused has been found guilty of both offences: Applying the rule against multiple convictions in accordance with Kienapple v. The Queen, 1974 CanLII 14 (S.C.C.), [1975] 1 S.C.R. 729, and R. v. Provo, 1989 CanLII 71 (S.C.C.), [1989] 2 S.C.R. 3, courts have systematically recorded a conviction of criminal negligence, as the more serious of the two offences, and entered a stay on the charge of failure to provide the necessaries of life (see, for example, R. v. Johnson, 2007 CarswellOnt 7765 (Ct. J.)). And in the few reported cases where the accused was finally acquitted of one of these offences and convicted of the other, the conviction was for failure to provide the necessaries of life and the acquittal for criminal negligence (see, for example, R. v. J.R.B., [2002] N.J. No. 296 (QL) (Prov. Ct.); R. v. Fitze reflex, (2000), 35 C.R. (5th) 114 (Alta. Q.B.)). I am not aware of a single case in which a conviction has been recorded for failing to provide the necessaries of life and a stay entered for criminal negligence pursuant to the rule against multiple convictions.