Criminal Law
Cases
Regina v. Naglik
Supreme Court of Canada
September 9, 1993
BACKGROUND
Naglik was convicted at her trial of aggravated assault and failing to provide the
necessaries of life to her infant son (contrary to section 215 of the Criminal Code).
She appealed against her convictions to the Ontario Court of Appeal which allowed her
appeal against conviction under section 215 but dismissed her appeal against conviction of
aggravated assault. Naglik then appealed against the dismissal of her appeal on the charge
of aggravated assault while the Crown "cross-appealed" against the decision of
the Court of Appeal to order a new trial on the charge of failing to provide the
necessaries of life. The Supreme Court of Canada allowed Naglik's appeal and ordered a new
trial in relation to both of her convictions. The Supreme Court also allowed the Crown's
cross-appeal (which concerned the trial judge's instructions to the jury concerning the
basic elements of the offence under section 215).
MAIN ISSUES
The decision in this case primarily turned on the question of whether the trial judge had
misdirected the jury about the need for unanimity and the right of jurors to disagree.
However, in the following extracts, the main issues are: (1) whether section 215 of the Criminal
Code imposes objective liability; and (2) whether section 215 violates section 7 of
the Charter?
JUDGMENTS
The majority judgment concerning the interpretation of section 215 of the
Code was delivered by Justice McLachlin (with whom Justices La Forest,
L'Heureux-Dube, Gonthier, and Cory agreed). Chief Justice Lamer delivered a concurring
judgment (with whom Justices Sopinka, Iacobucci, and Major agreed).
LAMER C.J. --
Facts
In 1987, Christine Naglik (to whom I shall
refer as "Naglik," as she is both appellant and respondent before this Court)
and her common-law husband, Peter Geoffrey Pople, were charged with the aggravated assault
of, and failure to provide necessaries of life to, their infant son Peter Naglik. The
Crown proceeded by indictment. The evidence established that Peter Naglik, then aged 11
weeks, was brought to hospital where he was found to have sustained a number of serious
injuries (including a broken collarbone, fractured ribs in at least 15 places, a fractured
vertebra, two separate skull fractures, and haemorrhaging of the brain and the retina)
which had caused permanent damage. The injuries had been sustained over a period of time,
estimated by physicians to be four weeks. Naglik gave exculpatory statements concerning
her child's condition to police and other authorities which were inconsistent with the
medical evidence at trial. At trial before a judge and jury, Naglik did not testify. Pople
did testify, denying any involvement in causing the injuries to the child, and claiming
that Naglik was the child's primary caregiver.
In his charge to the jury, the trial judge
remarked that, under s. 215 of the Criminal Code, R.S.C., 1985, c. C-46 (formerly
s. 197), the appropriate test to be applied was an objective one, and that the jury should
convict if they were of the view that the parent "knew, or ought to have known, the
seriousness of the child's condition and that it required medical attention...".
The jury returned verdicts of guilty on
both counts for both Naglik and Pople at 8:08 p.m., and was polled at the request of
defence counsel. Both were sentenced to four and one-half years on the first count
(aggravated assault) and two years on the second count (failure to provide necessaries),
to be served concurrently.
The Ontario Court of Appeal allowed
Naglik's appeal from her conviction on the second count (failure to provide necessaries),
set aside the conviction, and ordered a new trial on that count: (1991), 3 O.R. (3d) 385,
65 C.C.C. (3d) 272, 46 O.A.C. 81.
Naglik has appealed the Court of Appeal's
ruling with respect to comment by counsel for a co-accused by leave, and with respect to
the charge to the jury as of right (based on a dissent by Morden A.C.J.O.). The Attorney
General for Ontario has cross-appealed the Court of Appeal's ruling with respect to the mens
rea for s. 215 by leave.
Issues
Did the Court of Appeal for Ontario err in
concluding that the trial judge erred in instructing the jury that on a charge of failing
to provide the necessaries of life, the test for determining whether the respondent
breached her duty to provide necessaries was to a reasonable person or objective standard?
If so, on the issue of the
constitutionality of an objective basis of liability for s. 215, I stated the following
constitutional questions by order dated May 1, 1992:
1. Does an objective basis of liability for
s. 215 of the Criminal Code of Canada offend s. 7 of the Canadian Charter of
Rights and Freedoms?
2. If the answer to question 1 is yes, is
an objective basis of liability for s. 215 a reasonable limit on the s. 7 Charter
right pursuant to s. 1 of the Charter?
Analysis
Mens rea for s. 215
Unlike the first ground of appeal, this
issue must be resolved, since it will be a crucial element of the judge's charge to the
jury in Naglik's new trial. Before answering the constitutional questions, it is necessary
to decide whether s. 215(2)(a)(ii) enacts an offence for which Parliament has
indicated that objective fault is appropriate, or whether Parliament has enacted an
offence for which subjective fault must be proven.
With respect to the wording of s. 215,
while there is no language in s. 215 such as "ought to have known" indicating
that Parliament intended an objective standard of fault, the language of s. 215 referring
to the failure to perform a "duty" suggests that the accused's conduct in a
particular circumstance is to be determined on an objective, or community, standard. The
concept of a duty indicates a societal minimum which has been established for conduct: as
in the law of civil negligence, a duty would be meaningless if every individual defined
its content for him or herself according to his or her subjective beliefs and priorities.
Therefore, the conduct of the accused should be measured against an objective, societal
standard to give effect to the concept of "duty" employed by Parliament.
The policy goals of the provision support
this interpretation. Section 215 is aimed at establishing a uniform minimum level
of care to be provided for those to whom it applies, and this can only be achieved if
those under the duty are held to a societal, rather than a personal, standard of conduct.
While the section does not purport to prescribe parenting or care-giving techniques, it
does serve to set the floor for the provision of necessaries, at the level indicated by,
for example, the circumstances described in subs. (2)(a)(ii). The effects of a
negligent failure to perform the duty will be as serious as an intentional refusal to
perform the duty.
Since s. 215 enacts an offence for which
objective fault is appropriate to sustain a conviction, it remains to be considered what
the nature of that objective liability is, and, under the terms of the constitutional
questions, whether that standard of liability offends s. 7 of the Charter in such a
way that it may not be saved by resort to s. 1.
In R. v. Gosset, [1993] 3. S.C.R. 76
(judgment rendered concurrently), I discuss the nature of objective liability in the
criminal law, which I term "penal negligence." Briefly, Gosset
establishes that penal negligence punishes a marked departure from an objectively
reasonable standard of care, in accord with Cory J.'s reasons in R. v. Hundal,
[1993] 1 S.C.R. 867. However, I also make it clear in Gosset that the
reasonableness of the accused's conduct is not to be assessed in the abstract, but with
reference to the circumstances of the accused and the offence, to avoid punishing the
morally innocent who could not have acted other than they did in the circumstances;
specifically, in Gosset I summarize the operation of penal negligence as follows,
at pp. 95 - 96:
Once a marked departure from the standard of care is established, the focus of the
investigation under penal negligence must shift, therefore, to the question of whether the
accused was capable of recognizing that he or she had fallen short of the standard of care
required in the circumstances by the charging section.
Another crucial consideration would be
whether it was possible for Naglik to control or compensate for her incapacities in the
circumstances. For example, the evidence indicates that the services of a Public Health
Nurse were made available to Naglik to help her with the adjustment to caring for the
child, given her age, education, and lack of experience with children. Naglik apparently
resisted these attempts to assist her with the care of the baby. Furthermore, s. 215(2)(a)(ii)
covers a failure to provide necessaries in an ongoing relationship and over a period of
time, as well as the failure to perform a specific act as part of a discrete transaction,
suggesting that the nature of the failure alleged by the Crown would also affect the
jury's assessment of Naglik's actions. The test for penal negligence outlined in Gosset
will direct the trier of fact's attention to all of these considerations.
What parts of the offence must be
objectively foreseeable? In this appeal, Naglik was charged under ss. 197(2)(a)(ii)
and 197(3) (now ss. 215(2)(a)(ii) and 215(3)) of the Criminal Code, which
make the failure to fulfil the duty to provide necessaries an offence where "the
failure to perform the duty endangers the life of the person to whom the duty is owed, or
causes or is likely to cause the health of that person to be endangered permanently."
I would hold that s. 215(2)(a)(ii) punishes 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. This is not one of the few
offences, described in R. v. Creighton, [1993] 3 S.C.R. 3 (judgment rendered
concurrently), in which the nature of an underlying act, unlawful in itself, is so risky
that it is presumed to involve objective foresight of the risk of the consequences which
follow and which give rise to a separate offence. The circumstances described in subs.
(2)(a)(ii) are not just aggravating consequences, but are essential elements of the
actus reus of the offence. Thus, the Crown must prove beyond a reasonable doubt
both that the circumstances listed in subs. (2)(a)(ii) were objectively foreseeable
in the circumstances, and that the conduct of the accused represented a marked departure
from the standard of care required by those circumstances.
As this Court's decisions in Hundal
and in R. v. DeSousa, [1992] 2 S.C.R. 944, made clear, this objective basis of
criminal liability does not, per se, violate the Charter. That is, there is
no principle of fundamental justice requiring subjective foresight for criminal offences.
In Hundal, Cory J. wrote (at p. 882): "In the appropriate context, negligence
can be an acceptable basis of liability which meets the fault requirement of s. 7 of the Charter."
However, it remains to be decided whether a
conviction under s. 215 carries with it such social stigma and such a severe penalty that
a conviction based on penal negligence would violate s. 7 of the Charter, under the
test developed in Vaillancourt. I do not think that it does.
While the conduct proscribed by s. 215(2)(a)(ii)
is undoubtedly serious, involving as it does a breach of a parent's duty to his or her
child, this is not a situation as existed in the case of constructive murder, under which
an accused who had no subjective foresight of the risk of death was nevertheless branded
with the stigma attendant on a conviction for murder. While a conviction under s. 215(2)(a)(ii)
will no doubt result in the stigmatization, or even, as Naglik submitted, vilification, of
the accused, this stigmatization is neither unfairly disproportionate nor unrelated to the
culpable conduct of which the accused was found guilty. Where a person is convicted of an
offence under s. 215(2)(a)(ii) only, the stigma which attaches to the conviction is
only that described by the offence: if an objective standard is accepted, the accused is
stigmatized as someone who failed to provide for his or her child in circumstances where
the reasonably prudent parent clearly would have so provided.
There is no minimum penalty for this hybrid
offence, and a maximum prison term of two years if the Crown proceeds successfully by
indictment. The lack of a minimum penalty means that the sentencing judge can tailor the
sentence to the circumstances of the particular offence and offender, eliminating the
danger of the accused being punished to a degree out of proportion to the level of fault
actually found to exist.
The availability of a defence of lawful
excuse in s. 215(2) also serves to prevent the punishment of the morally innocent, even
where the accused fails to meet the standard of care imposed by the objective test of
penal negligence.
Because of my conclusion that no violation
of the Charter is indicated, it is not necessary to answer the second
constitutional question.
Also, because I would order a new trial on the second ground of appeal (relating to the
charge to the jury), it is not necessary to examine the trial judge's charge to the jury
for conformity to the objective test for penal negligence I have set out above. At
Naglik's new trial, the trial judge must charge the jury on this objective basis of
liability, with specific reference to Naglik's particular personal capacities and the
circumstances of the offence relevant to the charges on which that trial proceeds.
Disposition
I would therefore allow Naglik's appeal as
of right on the second ground of appeal, set aside the convictions on both counts, and
order a new trial on each of these counts.
I would also allow the Attorney General for Ontario's cross-appeal and answer the
constitutional questions as follows:
1. Does an objective basis of liability for
s. 215 of the Criminal Code of Canada offend s. 7 of the Canadian Charter of
Rights and Freedoms?
A. No.
2. If the answer to question 1 is yes, is
an objective basis of liability for s. 215 a reasonable limit on the s. 7 Charter
right pursuant to s. 1 of the Charter?
A. It is not necessary to answer this
question.
The second constitutional issue, raised by
cross-appeal, is the validity of s. 215 of the Criminal Code, R.S.C., 1985, c.
C-46, under s. 7 of the Charter.
On the cross-appeal, I agree with the
reasons of the Chief Justice, save for his comments which adopt his view of the objective
test for penal negligence discussed in R. v. Gosset, [1993] 3 S.C.R. 76, released
concurrently. I respectfully disagree with the Chief Justice's conclusion that when
considering what the accused "ought to have known" under an objective standard,
one should have regard to Ms. Naglik's "youth, experience, [and] education," as
advocated by the Chief Justice. For the reasons discussed in R. v Creighton, [1993]
3 S.C.R. 3 (released concurrently), it is my view that in determining what Ms. Naglik
"ought to have known," the trier of fact must determine the conduct of the
reasonable person when engaging in the particular activity of the accused in the specific
circumstances that prevailed. These circumstances do not include the personal
characteristics of the accused, short of characteristics which deprived her of the
capacity to appreciate the risk. Youth, inexperience, and lack of education were not
suggested on the evidence to deprive Ms. Naglik of the capacity to appreciate the risk
associated with neglecting her child. Therefore, she must be held to the standard of the
reasonably prudent person.
I agree with the Chief Justice that the
appeal should be allowed, the convictions set aside on both counts, and a new trial
ordered. I would allow the cross-appeal and answer the constitutional questions as does
the Chief Justice.
Appeal by accused allowed;
new trial ordered;
cross-appeal allowed.
Source: Adapted from R.
v. Naglik (1993), 83 C.C.C. (3d), pp.529-546. Copyright © 1993 Canada Law Book. Used with
permission.
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