W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1) (a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.
COURT OF APPEAL FOR ONTARIO
LASKIN, LANG AND MACFARLAND JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
G. Greg Brodsky, Q.C. for the appellant
Respondent
- and -
J. F.
Kim Crosbie for the respondent
Appellant
Heard: March 5, 2007
On appeal from the conviction entered by Justice Erwin W. Stach of the Superior Court of Justice, sitting with a jury, dated December 14, 2004.
MACFARLAND J.A.:
1The appellant appeals his conviction by a jury for manslaughter by criminal negligence in connection with the death of his foster child, K.M.
OVERVIEW
2On April 15, 2000, K.M. came into the care of the appellant and his wife, V.. On June 20, 2000, just over two months later, K.M. was pronounced dead at the Sandy Lake Nursing Station after efforts to revive him failed. K.M. was only four years old at the time of his death.
3Both the appellant and his wife were charged in relation to K.M.’s death. V. was charged with second-degree murder and manslaughter. On November 29, 2004 she pleaded guilty to manslaughter. She admitted to having caused K.M.’s death by inflicting blunt trauma to the back of his head.
4The appellant was charged with two counts of manslaughter by unlawful act, the first by criminal negligence, and the second by failing to provide the necessaries of life. At trial, a jury found the appellant guilty on the first count (manslaughter by criminal negligence) and acquitted him on the second count (manslaughter by failing to provide the necessaries of life).
5On appeal, the appellant argues that these verdicts are inconsistent. For the reasons that follow, I agree.
THE FACTS
6On April 15, 2000, K.M. came into the care of the appellant and his wife V. as their foster child.
K.M.’s treatment while at the F.s’ home
7At trial, a number of witnesses testified as to K.M.’s physical and mental condition after he came to the F.s’ home. The evidence on these points was somewhat varied, and provided as follows.
8Soon after K.M. began living with the F.s, on May 2, 2000, Nurse Michelle De Coene conducted a physical examination of K.M. for Tikinagan Child and Family Services. The purpose of this examination was to document any injuries, determine any care needed, and to comment on the child’s immunization status. During her examination, Nurse De Coene noticed nothing unusual – K.M. had no bruising, scrapes or cuts, his abdomen was soft, and the boy showed no indication of soreness or tenderness.
9However, when K.M. stayed at the home of R.G. a short time later between May 19 and May 26, 2000, Ms. R.G. noticed a bruise in the middle of K.M.’s forehead and scratches on top of his head. Although Ms. R.G. saw K.M. without clothing, she did not see bruises on his body. Ms. R.G. did not take K.M. to a doctor – or tell the appellant and V. to do so – on account of these marks, but she was surprised when she saw them. She had not seen scratches like that before on a child and showed them to her sister.
10On June 1, 2000, Warren Meekis, the appellant’s foster care worker, attended at the F. residence. He observed the home to be clean and found no reason to believe anything was wrong there.
11The appellant’s mother said that K.M. had visited her home less than ten times. Her husband bought K.M. a bicycle that he fell off of several times. She did not see many bruises on K.M. nor had she ever seen the appellant or V. strike the boy.
12J.K., the foster mother of K.M.’s biological sister, had K.M. visit her home twice and did not see any injuries on him. But when she saw K.M. in the week before his murder, Ms. J.K. noted that his behaviour was different and that he “acted scared”.
13L.K., a friend of V., saw K.M. at the F. home about a week before he died but did not notice that he had any injuries. She had, however, noticed a bruise extending across K.M.’s face, from one cheek to the other, sometime in the month leading up to his death.
14L.K. and D.A., another friend of V., went shopping with V. and K.M. on the Saturday before his death. Both women observed V. call the boy “stupid” during this outing. L.K. considered this unusual because she did not normally hear V. speak like that to people. D.A. also noted that V. yelled at K.M. again when the group returned to the F. residence.
15The appellant admitted to seeing bruises on K.M.’s legs, arms and chest area on the Thursday before his death and that K.M. had told him that the bruised areas all hurt. The appellant also described seeing “a scratch” on K.M.’s penis on the Monday evening before his death. According to the appellant, when he asked K.M. about that scratch, the boy told him that the dog had bitten him. Notably, the medical evidence in this case suggested that this “scratch” was not caused by a dog bite. Rather, the “scratch” was described as a “cut” or a “laceration”. Dr. Deborah Lindsay, a pediatrician and expert in child abuse, testified that the cut on the penis was three to five days old while Dr. Nicolas Escot, a pathologist, estimated the wound to be at least one or two days old. Both Drs. Lindsay and Escot said that the wound was inconsistent with a dog bite because of its straight edges and the absence of other signs that they would expect from a dog.
K.M.’s death
16On June 20, 2000, the appellant brought K.M. to the Sandy Lake Nursing Station; he was not breathing and had no pulse. CPR and medications were immediately started. Although K.M.’s heart started to beat for about two minutes, it then stopped and never resumed. K.M. was pronounced dead at 11:55 p.m. and resuscitation ceased.
17While efforts were being made to revive K.M., at least two of the nurses attending to him noted that he had bruises all over his body. Nurse De Coene – the same nurse that had noted nothing unusual with respect to K.M. less that two months earlier – observed bruises all over K.M.’s body, face, neck, torso, arms, and legs. Nurse De Coene thought that these bruises varied in age. Further, Nurse De Coene observed that K.M. was pale, had an abrasion on one side of his neck, blueness around his lips, a slightly infected wound on the top of his foot, a swollen nose, dried blood at his right nostril, and that his foreskin was scraped. She said that she had never before been presented with a child in K.M.’s condition and that she was “shocked” by it.
18Nurse Marie Carolan also observed K.M.’s bruises. She thought that a lot of the bruises appeared to be more than twenty-four hours old; she indicated that she would be surprised if all the bruises had occurred in the last eighteen hours before K.M.’s death.
19The cause of K.M.’s death was determined to be multiple blunt trauma to the head which, essentially, caused acute hemorrhaging at different layers in the brain’s covering. His brain became so “very swollen” that it ceased to function.
20Dr. William Halliday, a neuropathologist who testified at trial, estimated that the interval between K.M.’s fatal injuries and his death was between two and three hours. According to Dr. Halliday, within ten minutes of suffering these types of head injuries, K.M. would have been crying, his level of consciousness would have been affected, he may have had a seizure, and he may have vomited.
21In addition to his multiple head traumas, K.M. suffered hemorrhaging in the small bowel. Significant force is required to cause this type of injury, which is common in motor vehicle accidents as it typically results from tissue being crushed between two hard surfaces. This injury would have caused K.M. severe pain and rendered him unable to walk.
22The police investigation following K.M.’s death revealed evidence of the harm that K.M. had suffered in the F. residence. Police found K.M.’s blood on two towels, his bed sheet, a comforter, the wall of his bedroom, the wall of the appellant and V.’s bedroom, and the bathroom floor. Police seized a child’s T-shirt that was stained and smelled of vomit. In addition, the police noticed an indentation in the bathroom wall with a number of cracks and fractures. The damage to the wall was located at about K.M.’s height. Testing revealed one of K.M.’s hairs imbedded in one of the cracks as well as the presence of K.M.’s blood.
The appellant’s trial
23Unfortunately, the physician who conducted the post-mortem examination on the K.M. died before trial. Accordingly, at trial it was necessary to call experts to give their opinions based on the numerous photographs taken at the Nursing Station soon after K.M.’s death. These experts had not had the benefit of personally examining K.M.
24Bruises change colour over time in predictable ways. While physicians are unable to give the age of any bruise precisely, they are able to say based on a bruise’s colour whether the bruise is of relatively recent origin or a day or more old. However, in the absence of being able to conduct a physical examination to assess a victim’s bruises, a physician must rely on the colour of a bruise as captured by a camera. Unfortunately, colour can be distorted where a flash is used in the presence of fluorescent lights.
25Defence counsel at trial spent much time cross-examining the doctors who testified about their observations from the photographs of K.M. The thrust of that cross-examination seemed to be to support the defence theory that K.M.’s bruising was all very recent and could have been inflicted in one final “frenzy” of attack after the blow to the boy’s head. All of which was an attempt to demonstrate that the appellant might not have been aware of any ongoing abuse.
26However, even accepting the theory that the photographs of K.M.’s bruises were distorted and so did not accurately reflect their recency, the nurses who were present when K.M. was brought to the Nursing Station saw the boy first-hand and were of the view that his bruises were both old and recent. Moreover, even based on the photographs, one of the physicians guessed that between eighty and ninety percent of the bruising looked recent and that ten to twenty percent of the bruising looked old.
27In the end, as I have noted, the appellant was convicted of manslaughter by criminal negligence and acquitted of manslaughter by failing to provide the necessaries of life.
ANALYSIS
28The critical question for this court is whether the appellant’s conviction for manslaughter by criminal negligence was reasonable given his acquittal on the charge of manslaughter by failing to provide the necessaries of life.
29The appellant says that these verdicts are inconsistent and unreasonable. As he states in paragraph 37 of his factum:
The appellant’s position is that the Jury rendered an inconsistent verdict. As the legal elements of both offences are the same, and the facts and evidence supporting both charges is the same, the only reasonable verdict was an acquittal on both charges, given the acquittal on manslaughter by failing to provide the necessaries of life. Rendering a different verdict on the charge of manslaughter by criminal negligence was unreasonable and clearly indicates that the Jury was confused as to the evidence or reached an unjustifiable compromise.
30The test for unreasonable verdicts based on inconsistency is a strict one. The Supreme Court of Canada most recently had occasion to consider this issue in R. v. Pittiman (2006), 2006 SCC 9, 206 C.C.C. (3d) 6 where Charron J. on behalf of the court said at pp. 10-11:
The onus of establishing that a verdict is unreasonable on the basis of inconsistency with other verdicts is a difficult one to meet because the jury, as the sole judge of the facts, has a very wide latitude in its assessment of the evidence. The jury is entitled to accept or reject some, all or none of a witness’s testimony. Indeed, individual members of the jury need not take the same view of the evidence so long as the ultimate verdict is unanimous. Similarly the jury is not bound by the theories advanced by either the Crown or the defence. The question is whether the verdicts are supportable on any theory of the evidence consistent with the legal instructions given by the trial judge. Martin J.A. aptly described the nature of the inquiry in R. v. McShannock (1980), 1980 2973 (ON CA), 55 C.C.C. (2d) 53 (Ont. C.A.), at p. 56, as follows:
Where on any realistic view of the evidence, the verdicts cannot be reconciled on any rational or logical basis the illogicality of the verdict tends to indicate that the jury must have been confused as to the evidence or must have reached some sort of unjustified compromise. We would, on the ground that the verdict is unreasonable alone, allow the appeal, set aside the verdict, and direct an acquittal to be entered.
The search for a rational or logical basis for the verdicts does not mean that where a narrative of the events is not readily apparent from the jury’s findings that the impugned verdict must necessarily be set aside as unreasonable. The jury’s task is not to reconstruct what happened. Rather, it is to determine whether the Crown has proven each and every element of the offence beyond a reasonable doubt. Therefore, in the case of a single accused charged with multiple offences, different verdicts may be reconcilable on the basis that the offences are temporally distinct, or are qualitatively different, or dependent on the credibility of different complainants or witnesses. The strength of the evidence relating to each count may not be the same, leaving the jury with a reasonable doubt on one count but not on the other. On the other hand, when the evidence on one count is so wound up with the evidence on the other that it is not logically separable, inconsistent verdicts may be held to be unreasonable. [Emphasis added.]
31The appellant says that the evidence on both counts of manslaughter in this case was so wound up that was is not logically separable. In support of this position he points to the fact that both allegations against him were premised on the same set of circumstances, based on the same facts, and supported by the same evidence. Namely, the Crown’s allegations against the appellant were premised on the theory that he failed in his duty to protect K.M. from the unlawful violence of V., and that this failure caused K.M.’s death. Further, the offences were not temporally distinct or dependent on the credibility of different witnesses. Finally, the legal elements of both offences are, in these particular circumstances, identical.
32The Crown says, to the contrary, that there are material differences in the elements of the two offences charged.
33Remarkably, both the appellant and the Crown say that the trial judge correctly instructed the jury in relation to the legal elements of both offences.
34I start my analysis of whether the verdicts in this case were inconsistent by considering and comparing the legal elements of the offences with which the appellant was charged.
Manslaughter generally
35First, in order to find the appellant guilty of manslaughter, the Crown had to prove beyond a reasonable doubt that
the appellant caused K.M.’s death in the sense that his omission or failure to act must have been at least a contributing cause – one that was more than trifling or minor in nature; and
that the appellant caused K.M.’s death unlawfully.
36An unlawful act is one that amounts to an offence under our law. There were two unlawful acts alleged in this case: failure to provide the necessaries of life under s. 215 of the Criminal Code and criminal negligence under s. 219 of the Criminal Code.
Manslaughter by failing to provide the necessaries of life
37The Criminal Code provides:
215(1) Everyone is under a legal duty
(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;
(2) Everyone commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies upon him, to perform that duty, if
(a) with respect to a duty imposed by paragraph (1)(a) or (b),
(ii) 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[.]
38In other words, to establish that the appellant failed to provide K.M. with the necessaries of life, the Crown had to prove beyond a reasonable doubt:
that the appellant had a legal duty to provide K.M. with the necessaries of life;
that the appellant failed in that duty; and
that the appellant’s failure endangered the life of K.M. or caused, or was likely to cause, the health of K.M. to be endangered permanently.
39Failing to provide the necessaries of life is a hybrid offence. The punishment for this offence, where the Crown proceeds by way of indictment, is imprisonment for a term not exceeding five years. Where the Crown proceeds by way of summary conviction, the term of imprisonment cannot exceed eighteen months.
40To make out the offence of failing to provide the necessaries of life, the appellant’s conduct must constitute a marked departure from the standard of care expected of a reasonably prudent person.
41As this court noted in R. v. Peterson (2005), 2005 37972 (ON CA), 201 C.C.C. (3d) 220 at 231:
The phrase “necessaries of life” includes not only food, shelter, care, and medical attention necessary to sustain life but also appears to include protection of the person from harm. [Citations omitted. Emphasis added.]
42It is apparent, therefore, that the appellant’s failure to step in and protect K.M. in the circumstances of this case could constitute breach of s. 215 of the Criminal Code.
43Notably, failing to provide the necessaries of life may also ground a prosecution for criminal negligence under s. 219 of the Criminal Code resulting in liability under either s. 220 or s. 221 of the Code depending on the consequences that follow (i.e. death or bodily harm, respectively).
Manslaughter by criminal negligence
44The Criminal Code provides:
219(1) Everyone is criminally negligent who
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section “duty” means a duty imposed by law.
45In other words, for a manslaughter conviction in this case to be properly founded on criminal negligence the Crown had to establish three essential elements beyond a reasonable doubt:
that the appellant did or omitted to do something that it was his legal duty to do;
that the appellant showed a wanton reckless disregard for the life or safety of K.M., which constituted a marked and substantial departure from what a reasonably prudent person would do under the circumstances; and1
that the appellant’s act or omission was at least a contributing cause – one that was beyond trifling in nature – of K.M.’s death.
46Causing death by criminal negligence is an indictable offence and, if convicted, a person is liable to imprisonment for life.
Criminal negligence versus failing to provide the necessaries of life in this case
47There are subtle differences between the offences of criminal negligence and failing to provide the necessaries of life. First, the nature or degree of the conduct for the offences is described in slightly different language. With respect to criminal negligence the conduct must constitute a marked and substantial departure from what a reasonably prudent person would do under the circumstances. Whereas, for failing to provide the necessaries of life, the conduct must only constitute a marked departure from the standard of care expected of a reasonably prudent person in the circumstances.
48Second, in criminal negligence the Crown must prove that the accused showed a wanton or reckless disregard for the life or safety of another. That which the Crown must prove is described differently in respect of failing to provide the necessaries of life. Namely, for that offence the Crown must establish that the accused’s failure endangered the life of the person to whom he or she owed a duty or that the accused caused, or was likely to cause, the health of that person to be endangered permanently.
49Finally, criminal negligence is considered to be the more serious of the two offences. This is borne out by the fact that the Crown must prove a marked and substantial departure by the accused, by the fact that the penalty for criminal negligence is greater than that for failing to provide the necessaries of life, and by the fact that criminal negligence causing death is an indictable offence while failing to provide the necessaries of life is a hybrid offence.
50In my view, however, on the particular facts of this case where the wrong on which the Crown relied to support both charges against the appellant was his failure to protect K.M. from V.’s violence, the distinctions between these offences are distinctions without a difference.
51What is significant, in my view, is that the same conduct –the failure to protect K.M. – was capable of supporting a conviction for either charge. Indeed on these facts, the charge of failing to provide the necessaries of life was akin to a lesser included offence of criminal negligence where the degree of misconduct was not quite so acute.
52I am of the view that a conviction on the more serious offence (criminal negligence) coupled with an acquittal on the lesser offence (failing to provide the necessaries of life) rendered the verdicts inconsistent. This is a case, as Charron J. noted in Pittiman, supra, at p. 11 where “the evidence on one count is so wound up with the evidence on the other that it is not logically separable”. In this case, these inconsistent verdicts are unreasonable.
53I would allow the appeal.
54The appellant seeks an acquittal. In my view, that remedy would not be appropriate here. This court is not setting aside the verdict in this case because it is unsupported by the evidence. To the contrary, in my view, the evidence was capable of supporting convictions on both counts. The verdict finding the appellant guilty of manslaughter by criminal negligence is being set aside only because, on the particular facts of this case, it is inconsistent with an acquittal on the charge of manslaughter by failing to provide the necessaries of life and is therefore unreasonable. Quoting again from Pittiman at p. 14:
[W]here the verdict is found to be unreasonable on the basis of inconsistency of verdicts, but the evidence against the appellant supported the conviction, the appropriate remedy will usually be a new trial.
55Accordingly, I would allow the appeal, set aside the conviction, and order a new trial.
“J. MacFarland J.A.”
“I agree John Laskin J.A.”
1I have had the opportunity to read the comprehensive reasons of my colleague MacFarland J.A.; however, I am unable to agree with her conclusion that the appellant’s conviction for manslaughter by criminal negligence causing death is inconsistent with his acquittal for manslaughter by failing to provide the necessaries of life causing death.
2As my colleague notes, R. v Pittiman (2006), 2006 SCC 9, 206 C.C.C. (3d) 6 (S.C.C.), is the leading authority on the issue of inconsistent verdicts. In that case, Charron J. explained that the test for inconsistent verdicts is a strict one, which asks “whether the verdicts are supportable on any theory of the evidence consistent with the legal instructions given by the trial judge.” In other words, “are the verdicts irreconcilable such that no reasonable jury, properly instructed, could possibly have rendered them on the evidence”.
3In my view, the verdicts in this case cannot be said to be inconsistent because there are material differences in the constituent elements of the two offences and the trial judge’s instructions to the jury on those differences are not impugned.
4For ease of reference, I repeat the two relevant sections of the Criminal Code, R.S.C. 1985, c. C-46. Failing to provide the necessaries of life is set out in s. 215:
(1) Every one is under a legal duty
(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;
(2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies on him, to perform that duty, if
(a) with respect to a duty imposed by paragraph (1)(a) or (b),
(ii) 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[.]
5Criminal negligence is set out in s. 219:
(1) Every one is criminally negligent who
(b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.
6Importantly, criminal negligence includes the essential element that the accused showed “wanton or reckless disregard for the … safety” of another. In contrast, failing to provide the necessaries of life includes a failure to perform a duty such that the failure “is likely to cause the health of that person to be endangered permanently”.
7I see two important distinctions between the offences on the facts of this case. First, the Crown must prove the accused’s “reckless disregard” as an element of the offence of criminal negligence while the Crown must prove a “failure to perform” a duty to provide the necessaries of life. Second, the Crown must prove that the accused’s conduct related to the life or “safety” of the victim for criminal negligence, while it must prove that it was “likely to cause the health of [the victim] to be endangered permanently” for failing to provide the necessaries of life.
8I concentrate on these distinctions because I agree with my colleague that the facts of this case raise no discernible differences regarding the other constituent elements of the two offences.
9For the purposes of my reasons, it is unnecessary to review in detail the evidence that has already been amply reviewed by my colleague. In essence, the appellant, who acted as foster father for K.M., was present in the small family home when his wife, K.M.’s foster mother, applied blunt force trauma to K.M.’s head that resulted in his death. There is no allegation that the appellant at any time inflicted any direct injury to K.M. At the time the fatal injuries were inflicted, the appellant was apparently asleep in his bedroom and the weight of the evidence suggested that the appellant wakened after the injuries had been inflicted and when K.M. was no longer responsive.
10The Crown virtually conceded at trial that K.M.’s death was not foreseeable by the appellant or anyone else who came in contact with the child in the days immediately before his death. The question for the jury, however, was whether the appellant should have anticipated the event, or some degree of danger for the child, and whether he should have intervened to protect K.M. from what happened. Specifically, the Crown submitted to the jury that while “clearly the injuries [to K.M.] that were observed earlier … weren’t life threatening”, they must have been observed by the appellant.
11In addition, the Crown submitted that a threat to K.M.’s safety was foreseeable as was a threat that K.M.’s health would be permanently endangered.
12I will deal first with the different conduct on the part of the appellant as an element of each charge and the element of the danger to K.M.
13On the distinction between the appellant’s conduct in relation to the two offences, the Crown addressed the appellant’s wanton or reckless disregard for the safety of K.M. in relation to the charge of criminal negligence. Immediately afterwards, the Crown submitted that failing to provide the necessaries of life required conduct by the appellant that showed “a marked departure from the conduct of a reasonably prudent parent and that that failure was likely to cause the health of [K.M] to be permanently endangered.” The Crown repeated this distinction on more than one occasion, including at the end of its submissions.
14In his submissions, the appellant’s counsel queried whether the Crown had proven pre-existing bruising and asked whether, in all the circumstances, the appellant should have been alerted to any danger to the child. He specifically asked the jury whether the appellant’s failure to take action “would lead to a risk of danger of the life or a risk of permanent endangerment of the health of the child.” This submission by the defence drew a clear distinction for the jury between the two offences.
15The trial judge not only told the jury about the differences between the two offences, but emphasized those differences by charging first on the elements of criminal negligence, then on the facts, and then on the elements of failing to provide the necessaries of life. On both counts, the trial judge referred to the foreseeability of the child’s death, but as I have said, the Crown conceded that the child’s death was not foreseeable so that the focus was on the perceived danger to K.M.
16Regarding criminal negligence, the trial judge told the jury to ask whether the appellant showed “wanton or reckless disregard for the safety” of K.M. and whether “there was a discernible risk of more than trifling or short-lived bodily harm to the child”. He then explained: “Wanton disregard means heedless disregard for the consequences of your failure to act. Reckless means showing indifference to the consequences of your failure to act.” He also told the jury to consider whether the conduct established criminal negligence, which required a marked and substantial departure from that of the reasonably prudent parent. This statement was immediately followed by this instruction:
Crown counsel may prove this in either of two ways: by proving that [J.F.] was aware of a danger or risk to the health or safety of [K.M.] but ignored that risk; or by proving that [J.F.] failed to direct his mind to the risk to the health or safety of [K.M.] which a reasonable parent would have understood.
17Finally, on this element, the trial judge referred again to whether the appellant recognized the “risk” to K.M.
18In dealing with the necessaries of life count, the trial judge referred specifically to the different wording for this offence and explained the necessary element that the Crown prove the appellant’s failure to provide the necessaries of life “caused or was likely to cause [K.M’.s] health to be permanently endangered” and said this was about the foreseeability of the harm: “Was it objectively foreseeable that the failure to provide necessaries of life would lead to a risk of danger to life, or a risk of permanent endangerment to the health of [K.M.]?” [Emphasis added.]
19Significantly, however, in the post-charge conference, the Crown raised an objection to these words, particularly the words “risk of”. He suggested that “risk of” was not reflected in the words used by the Criminal Code and that “risk of permanent endangerment” was a less onerous test than “likely to lead to permanent endangerment”. Not surprisingly, the appellant’s trial counsel agreed that it was preferable to adhere to the precise wording of the section.
20In the result, the trial judge called the jury back and asked the jury members to “strike the words ‘lead to a risk of danger to’ and in its place write the words, ‘endanger the’”. He re-read the resulting instruction for the jury: “Was it objectively foreseeable that the failure to provide necessaries of life would endanger the life, or is likely to permanently endanger the health of [K.M.]”. In this way, the distinction between the likelihood of harm in the two offences was highlighted for the jury with “risk” to K.M. restricted to the charge of criminal negligence. Thus, with the acquiescence of the defence at trial, the elements for criminal negligence were clearly distinguished from those for failing to provide K.M. with the necessaries of life. As I have said, appellant’s counsel does not impugn the correctness of the trial judge’s instructions.
21Consistent with this distinction, the defence did not suggest to either the jury or the judge that a conviction on one count would inevitably involve a conviction on the other. To the contrary, the defence specifically told the jury that the Crown had to prove the appellant “guilty of one of the two offences he’s charged with.”
22After the jury rendered its verdict, the defence raised the spectre of inconsistent verdicts. The Crown took the position that the jury was “very alert to those two different tests” and the trial judge commented that they were separate offences. The issue of potentially inconsistent verdicts was raised again on sentencing when defence counsel indicated he was having trouble with sentencing submissions because he was “having some difficulty” with his perception of inconsistent verdicts. To this, the trial judge – who was in the best position to understand the nuances of the evidence and his charge - responded, “I am not.” In addition, the trial judge remarked in his reasons for sentence that the jury must have found that the appellant was aware of the “risk” to the health and safety of K.M., but that the appellant ignored or failed to direct his mind to that “risk”. This comment was in keeping with his charge to the jury that criminal negligence was proven if the appellant was aware of the risk and ignored it, or if the appellant failed to direct his mind to the risk.
23In other words, one explanation for the different verdicts was the element of “risk” in criminal negligence and the failure of the appellant to address his mind to that risk.
24In my view, there is a second reason why the verdicts have not been shown to be inconsistent. That reason lies in the distinction between safety and permanent endangerment to health.
25While on some occasions, the trial judge referred to the danger of risk “to the health or safety” of the child in the portion of the charge dealing with criminal negligence, his charge on failing to provide the necessaries of life focussed on the child’s “health”. Reading the submissions and the charge in their entirety, the jury would have considered “safety” in relation to criminal negligence and “health” in relation to failing to provide the necessaries of life.
26“Safety”, as commonly understood, would include risk of injury of any kind, including the bruising and the laceration to the penis that were identified on K.M.’s body. In contrast, “health” refers more often to the general condition of the body reflected in the expressions that one is in “good health” or “poor health”. Moreover, to have one’s health “permanently endangered” imports an element of a condition that is indefinite in duration. The jury was entitled to conclude that there was a difference between K.M.’s “safety” and permanent endangerment to his health.
27On the evidence in this case, it was open to the jury to conclude that bruising, even extensive bruising, was not likely to permanently endanger K.M.’s health - at least his physical health - but that the bruising was sufficiently extensive to suggest child abuse of a nature to alert the appellant that K.M.’s safety was at risk and he was reckless in ignoring that risk.
28Although permanent endangerment of health could conceivably encompass the bruising established in this case, in my view it does not necessarily do so. The jury was entitled to exercise its common sense to conclude that the distinction between safety and health was determinative on the facts of this case.
29Since the constituent elements of the two offences charged were different in the respects I have discussed, I would conclude that the appellant has failed to satisfy the strict test for establishing inconsistent verdicts. The verdicts have not been shown to be irreconcilable such that no reasonable jury, properly instructed, could have rendered them on the evidence in this case. Accordingly, I would dismiss the appeal.
RELEASED: July 4, 2007 “JL”
“S.E. Lang J.A.”