R. v. Makara, 2023 ONSC 2608

Court File and Parties

COURT FILE NO.: CR 20-108 DATE: 2023/05/01

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING David G. Kirk, for the Crown

- and -

MALLORIE MAKARA Andrew Perrin and Dan Baker, for the accused Mallorie Makara

HEARD: April 3 to 12, 2023

THE HONOURABLE MR. JUSTICE DAVID J. NADEAU

Reasons for Judgment

[1] Rhonda McClenaghan was a 54-year-old female who was a long-term resident of a residential care facility in North Bay called Banner House. She had a history of cerebral palsy with spastic quadriplegia and cognitive impairment, epilepsy, and osteoporosis. She reportedly had the cognitive function of an 18-month-old and required assistance with the activities of daily living with the exception of feeding. She was reportedly immobile, and wheelchair bound and required a mechanical lift for transfer. From all accounts, Rhonda was a special and happy person even with her substantial challenges and profound limitations.

[2] On the morning of her death, Rhonda was in her residence at Banner House in the care of two night staff employed by Community Living North Bay; Mallorie Makara, part-time night staff since returning from her second parental leave, and Gabrielle Lamb, full-time night staff who had more years of experience than Mallorie Makara. As has been described during the trial by both night staff, tragically Rhonda drowned in the bathtub at the Banner House bathroom for its residents.

[3] Mallorie Makara is charged that she, on the 9th day of July 2018, did fail without lawful excuse to provide the necessaries of life to Rhonda McLenaghan, a person under her charge and unable, by reason of physical and intellectual disability to withdraw herself from such charge, and to provide herself with such necessaries of life, thereby endangering the life of Rhonda McLenaghan, contrary to Section 215(2)(b) of the Criminal Code of Canada. Mallorie Makara entered her plea of not guilty to this charge.

[4] The relevant provisions of that offence are:

215. (1) Duty of persons to provide necessaries – Everyone is under a legal duty (c) to provide necessaries of life to a person under his charge if that person (i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and (ii) is unable to provide himself with necessaries of life.

(2) Offence – Every person commits and offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse to perform that duty, if (b) with respect to a duty imposed by paragraph (1)(c), 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 injured permanently.

[5] During this trial, Crown Counsel called six witnesses for the prosecution and there were six Exhibits presented. Mallorie Makara was the sole witness called in her defence, and her testimony as well as statements made by her, together with the testimony of Gabrielle Lamb, have informed this Court of the events surrounding Rhonda’s drowning that morning.

[6] With respect to the events of the morning in question, the only prosecution witness present leading up to Rhonda’s drowning was Gabrielle Lamb. One of the Managers, Julie Desjardins, arrived at Banner House only after the ambulance was leaving with Rhonda. Although the Manager at that time and Carol Fryer both testified that there were 8 residents on July 9, 2018 at Banner House, all with developmental disabilities, Gabrielle Lamb testified that there were 7 residents that morning. She and the accused, Mallorie Makara, discussed the bathing routine for that day and they decided that Rhonda would be the second person to get up and bathe. They began the routine at 5:45 a.m., and according to Gabrielle Lamb it was a “busy time”. They had 3 residents to bathe in the same bathtub that morning, as well as one lady to shower and another lady needed a bed bath. The expectation at Banner House was that the bathing of the residents was to be completed by the night staff, as well as with their other duties, before their nightshift ended at 8:00 a.m.

[7] Gabrielle Lamb was to bathe the first man and he was coughing during his bath. She handed the man off to Mallorie Makara to dress him, and then Mallorie Makara moved on to get Rhonda for her bath. Although Gabrielle Lamb could not see that, she could hear the bathtub running and eventually the jets running in the tub. The first man was agitated and was coughing and screaming. Mallorie Makara therefore left the bathroom and went into the medication room looking for cough medicine for the first man. Then Mallorie Makara went to the dining area and had a conversation with Gabrielle Lamb, who assumed that Rhonda was in the bathtub because the jets were on.

[8] The Crown asked Gabrielle Lamb the following important question; how much time had elapsed from when she handed the man off to Mallorie Makara or heard the bath running that second time to when she had this conversation in the dining area? Gabrielle Lamb responded, “it wasn’t very long, maybe about 10 minutes”. They decided that it was time to help Rhonda out of the tub.

[9] Gabrielle Lamb followed Mallorie Makara into the bathroom. They could see the black sling that was hooked up to the lift mechanism, and they both found Rhonda in the bathtub on her side. Gabrielle Lamb stated that Rhonda was still inside the sling, but she was sideways instead of sitting upright the way she should have been. The bathtub was more then halfway full of water and Rhonda was under the water, with only her left should being out of the water.

[10] After Mallorie Makara tried to pull Rhonda out of the bathtub, she called 911. Gabrielle Lamb used the lift to get Rhonda out and lowered her to the floor. There were no signs of breathing and Rhonda was turning a little blue around the lips and in her face. Gabrielle Lamb started chest compressions and she could not do it, so Mallorie Makara took over doing Cardiopulmonary resuscitation while still on the phone with 911 waiting for the ambulance to arrive.

[11] From the Agreed Statement of Fact for the Forensic Pathologist:

“It is Dr. Danielson’s understanding that, on the morning of death, she was transferred with a mechanical lift to a Jacuzzi-style bathtub by an employee of the facility. She was washed by the employee and subsequently left unsupervised to soak in the tub. When the employee returned to the bathing room approximately 10 minutes later, she was unresponsive with her head submerged under the water. She was without vital signs after removal from the water. Resuscitation was initiated and she was transported to hospital where resuscitation continued. She was diagnosed with severe hypoxic ischemic encephalopathy and died ~7 hours after discovery submerged.

At autopsy the body was that of a well-nourished adult woman with no evidence of injury to account for death. The external aspect of the body was clean and the hair and nails appeared well-groomed. There were extensive resuscitation-related injuries identified involving the torso including multiple bilateral rib fractures associated with subcutaneous hemorrhage, right hemothorax, and an intraparenchymal laceration of the liver. There were non-specific recent bruises involving the extensor surfaces of the extremities and non-specific healing bruises involving the lower extremities; these injuries did not contribute to death. Focal bilateral intramuscular hemorrhage was identified involving the base of tongue which may be an artifact of resuscitation or could represent antemortem seizure activity.

Internal examination revealed focal moderate coronary artery atherosclerosis and microscopic evidence of early hypertensive changes within the kidneys. The degree of underlying natural disease identified is insufficient to account for death.

Neuropathology consultation was obtained following formalin fixation of the brain and spinal cord which revealed cerebral atrophy, cerebellar atrophy, bilateral hippocampal sclerosis, and scattered neurons with changes suggestive of ischemia. The spinal cord was free of gross and microscopic abnormality.

Toxicological analysis revealed no evidence of intoxicating drugs or ethanol to account for death. The prescription medications trazodone and sertraline were detected. These medications are not considered contributory to death in this case. A list of prescribed medications was not available at the time of completion of this report.

The cause of death is drowning in a woman with cerebral palsy and epilepsy. Risk factors for drowning in this case include epilepsy and immobility resulting from cerebral palsy with spastic quadriplegia. Seizure activity may be associated with tongue biting and antemortem/perimortem seizure activity cannot be entirely excluded.

Although not diagnostic of seizure activity, the presence of hemorrhage within the tongue is suggestive of possible seizure activity prior to death. It is not possible to determine pathologically whether the possible seizure activity occurred prior to or after submersion under water.”

[12] The Crown alleges that the following conduct of Mallorie Makara caused Rhonda’s death and was a marked departure from that of a reasonable person in the same circumstances:

(a) Failure to comply with the Community Living North Bay Quality Assurance Measures, in particular Policy #9.1 and #13.1; (b) Failure to review and comply with Rhonda’s Individual Support Plan, in particular that Rhonda cannot be left unattended while in the bathtub and that Rhonda requires a bath chair in the tub when having a bath with the seat belt on; (c) Failure to comply with the Memo from her Manager dated May 4, 2017, in particular that any person with a seizure disorder should never be left alone while being in the tub bathing; (d) Failure to review the Communication/Daily Log binder; and (e) Failure to take adequate precautions to protect Rhonda from the risk of drowning when she left the bathroom for up to 10 minutes while Ronda was soaking in her sling in the bathtub.

[13] It is alleged by the prosecution that these acts and primarily omissions individually or cumulatively caused Rhonda’s death and that the conduct was a marked departure from that of a reasonable person in the circumstances.

[14] The position of the defence is that the conduct of Mallorie Makara that morning did not fall below the standard of care of a reasonable person in the same circumstances, and it certainly was not a marked departure from that standard of care. In support of that position, it is submitted that both Gabrielle Lamb and Mallorie Makara have testified that it was common practice for her caregivers to leave Rhonda alone in the bathroom to soak in her bathtub while conducting other required duties. Specifically, their testimony included a verbal direction from her primary support worker Carol Fryer allowing Rhonda’s caregivers to leave the bathroom while Rhonda would soak in her bathtub for her joints.

[15] To decide the guilt or innocence of Mallorie Makara, I must first decide whether the Crown has proved beyond a reasonable doubt that her acts or omissions caused Rhonda’s death. Assuming that this is proven, I must determine the relevant circumstances or context for the acts or omissions that caused the death. Finally, I must determine whether the acts or omissions in the circumstances that I find to exist have been proven beyond a reasonable doubt to be a marked departure from the standard of care of a reasonable caregiver in the same circumstances.

[16] As with the majority of criminal trials the main issue here is whether the Crown’s case has been proven beyond a reasonable doubt. Mallorie Makara is not required to explain the allegations in any way, even to the extent as to why she gave the testimony that she did, in effect unfairly shifting this burden of proof away from the prosecution. It remains always incumbent on the prosecution to proffer sufficient reliable evidence to meet its burden of proof.

[17] In assessing the credibility of every witness in this trial, I have considered the reasonableness of their evidence, contradictions in the evidence, whether or not their character has been impugned, the personality and demeanour of the witness, corroboration with other testimony, any self-interest, their powers of observation and recollection as well as their capacity of expression. My focus has been on the reliability of the testimony of the witness as opposed to their sincerity in the witness box. This Court realizes that demeanour alone does not provide a sufficient basis for making a credibility finding for or against a particular witness. This Court has sought to identify any confirmatory or supporting evidence which strengthen my belief that the witness is telling the truth.

[18] The manner in which this trial proceeded requires me to review the framework of analysis in a criminal trial. Interwoven with the presumption of innocence is the standard of proof required to displace that presumption. To secure a conviction in a criminal case, the Crown must establish each essential element of the charge against the accused to a point of “proof beyond a reasonable doubt.” This standard of proof is very exacting. It is a standard far beyond the civil threshold of proof on a balance of probabilities.

[19] The law recognizes a spectrum of degrees of proof. The police lay charges on the basis of “reasonable ground to believe” that an offence has been committed. Prosecutions only proceed to trial if the case meets the Crown’s screening standard of there being “a reasonable prospect of conviction.” In civil litigation, a plaintiff need only establish their case on a “balance of probabilities.” However, to support a conviction in a criminal case, the strength of evidence must go much farther and establish the Crown’s case to a point of proof beyond a reasonable doubt. This is not a standard of absolute or scientific certainty, but it is a standard that certainly approaches that. Anything less entitles an accused to the full benefit of the presumption of innocence, and a dismissal of the charge.

[20] The expression proof “beyond a reasonable doubt” has no precise definition. However, the Supreme Court of Canada has outlined a suggested model jury charge in the Lifchus case in 1997. This is the definitive guide for criminal trial courts in Canada. It is worth setting out here today.

The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit, because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand, you must remember that it is virtually impossible to prove anything to an absolute certainty, and the Crown is not required to do so. Such a standard of proof is impossibly high.

[21] In short if, based upon the evidence before this Court, I am sure that the accused committed the offence then I should convict since this demonstrates that I am satisfied of her guilt beyond a reasonable doubt. On the other hand, if I am not sure that she committed the offence based on all of the evidence or the lack of evidence, or the credibility of one or more of the witnesses or the reliability of their evidence, I should find her not guilty of it.

[22] Ultimately my assessment of this charge against Mallorie Makara turns substantially on the assessment of the reliability and credibility of this accused when measured against the Crown’s burden of proof. With respect to this charge, does the evidence have sufficient quality and force to establish the accused’s guilt beyond a reasonable doubt?

[23] The presumption of innocence is perhaps the most fundamental principle in our criminal law, and every person charged with a criminal offence is presumed to be innocent until the Crown proves his guilt beyond a reasonable doubt. Mallorie Makara does not have to prove she is innocent. Let me put this another way; Mallorie Makara does not have to prove anything. It is up to the Crown to prove its case on each element of this offence beyond a reasonable doubt.

[24] Counsel for the accused and Crown Counsel have both directed me to the dissenting reasons of Justice O’Ferrall, essentially agreed upon by the Supreme Court of Canada, in R. v. Stephan 2017 ABCA 380. It is outlined therein with respect to the elements of the charge facing Mallorie Makara:

“ 219 The trial judge properly identified the three elements apparent on the face of section 215 that are required for a conviction. He instructed the jury that the Crown was required to prove that the Stephans: (1) Were under a legal duty to provide necessaries of life to Ezekiel; (2) failed to provide the necessaries of life to Ezekiel; and that (3) this failure endangered Ezekiel’s life.

220 However, the above elements only speak to the actus reus of the offence. They do not address the fault element of mens rea of the offence. That too must be established in order to establish the offence of failing to provide the necessaries of life.

221 The full test has been clearly laid out by Deschamps, J., in her dissenting opinion in R. v. JF, 2008 SCC 60 at paras 66-67:

The actus reus of failing to provide the necessaries of life will be established if it is proved (1) that the accused was under a legal duty to provide the necessaries of life to the person in question pursuant to s. 215(1)(a); (2) that, from an objective standpoint, he or she failed to perform the duty; and (3) that, again from an objective standpoint, this failure endangered the life of the person to whom the duty was owed, or caused or was likely to cause the health of that person to be endangered permanently. Following Charron J.’s reasoning in R. v. Beatty, 2008 SCC 5, the marked departure standard is not applied at this point, since “[n]othing is gained by adding to the words of [the statute] at this stage of the analysis” (para. 45).

The mens rea of failing to provide the necessaries of life will be established if it is proved that the conduct of the accused represented a marked departure from the conduct of a reasonable parent, foster parent, guardian or family head in the same circumstances.

222 Each of the four elements specified in the above test (the three elements of the actus reus plus the mens rea requirement) must be proven in order to obtain a conviction. It was important for the jury to keep these four distinct elements in mind. However, the trial judge, in his charge to the jury, combined two of them. Specifically, he appears to have included the mens rea requirement while instructing the jury on the second element of the actus reus. He may or may not have erred in so doing, although the authorities seem to suggest that whether the mens rea element is present should be determined only after the actus reus has been established. In any event, it was incumbent upon the trial judge to ensure that both the second element of the actus reus and the mens rea were adequately explained to the jury. These two elements required separate, distinct and sequential instruction.”

[25] More from the Stephan decision, with respect to mens rea and marked departure;

“ 245 With respect to the mens rea requirement, it was not sufficient for the Crown to prove that reasonably prudent parents, in the circumstances of the Stephans, would have done things differently. While doing so may have satisfied the second element of the actus reus (the failure), it would still leave outstanding the question of fault. The Crown had to prove beyond a reasonable doubt that the conduct of the Stephans represented a marked departure from that of the reasonably prudent parent. I replicate the jury charge on this element of the offence below:

In deciding whether the Crown has proven beyond a reasonable doubt that David Stephan failed to provide necessaries of life you must determine whether the Crown has proven beyond a reasonable doubt that the conduct of David Stephan represented a marked departure from the conduct of a reasonably prudent and ordinary person where that reasonable person, in all circumstances of David Stephan would foresee that medical attention was required to maintain [the child’s] life, and that reasonable person would also foresee that failing to provide the medical attention would endanger [the child’s] life. 6 [emphasis added]

246 The trial judge provided no explanation whatsoever to the jury as to what constituted a marked departure.

247 Marked departure is a difficult concept even for those with legal training and therefore requires explanation. The discussion in R. v. Beatty, 2008 SCC 5 is helpful. That case dealt with the charge of dangerous driving which, like that of failing to provide the necessaries of life, requires proof of a marked departure from the standard of care of a reasonable person in order to found a conviction. The majority in Beatty explains, at paragraph 7, that:

The distinction between a mere departure and a marked departure from the norm is a question of degree. It is only when the conduct meets the higher threshold that the court may find, on the basis of that conduct alone, a blameworthy state of mind.

248 In R. v. Brander, 2003 ABQB 756, where the main issue in dispute was also dangerous driving, Brooker, J. found that the accused was undoubtedly negligent but not guilty beyond a reasonable doubt of a marked departure having regard to all of the circumstances. The accused in that case was criminally charged after his vehicle struck another, killing a child and seriously injuring another. In acquitting the accused, the judge noted that an accused may be wrong, and may even be negligent, but he added that the law does not lightly brand a person as a criminal: see also R. v. Creighton at 59, 105 DLR (4th) 632.

249 A review of the case law indicates that marked departure means “more than simple inadvertence, more than thoughtlessness or a simple error in judgment”: R. v. McKay at para 52 (QB). It also means more than mere carelessness: see, for instance, R. v. Allen, 2007 ONCJ 235 at para 20; R. v. Randy Smith, 2010 ONSC 2904 at para 27. Ball, J. in R. v. Patenaude, 2004 SKQB 295 adds that there must be a criminal quality to conduct for it to amount to a marked departure: para. 4.

250 The requirement to carefully consider the concept of marked departure is clear from the case law, including such cases as Beatty and Brander. It is perhaps even more critical to do so for the charge of failing to provide the necessaries of life, where a marked departure may be more difficult to identify than in a case of dangerous driving. In considering whether a certain manner of driving constitutes a marked departure from the norm, we have a set of standards which have been in place for decades. Those standards are contained in rules of the road which are codified in traffic safety legislation across Canada. They provide a measurement against which conduct can be assessed as constituting or not constituting a marked departure from the norm. There is no such code or standards when it comes to parenting or caregiving.

251 Further, while the legislated duty prescribed in section 215(1) may require an objective or community standard or the establishment of a societal minimum for the conduct of parents and caregivers, the fact is that the section does not purport to prescribe specific parenting or care-giving standards. And that is why it was so critical for the trial judge to instruct the jury to separately consider whether the Stephans’ failure or omissions constituted a marked departure from what a reasonable parent would be expected to do in the same circumstances. This obligation was particularly important given all the medical evidence the jury heard. The jury should have been cautioned that a marked departure was not failing to do what a medical doctor would do when presented with the symptoms exhibited by their child.

252 Turning back to the general requirement to prove the fault element for the offence at hand (it being a negligence-based offence), further guidance was provided by Deschamps, J. in J.F. at para 65:

The underlying premise for finding fault in respect of a negligence-based offence lies in the “failure to direct the mind to a risk [of harm] which the reasonable person would have appreciated” (R. v. Creighton, at p. 58). However, the fault element is in large part premised on the actus reus. Indeed, the inquiry into the actus reus entails an objective assessment of the specific risk of harm at issue. The judge will determine what the specific risk is by looking at the words of the statute. For example, for the purposes of various Criminal Code offences, the risk of harm can be defined as “in a manner that is dangerous to the public” (s. 249(1)(a)), “in a careless manner or [page 242] without reasonable precautions for the safety of other persons” (s. 86(1)), “shows … disregard for the lives or safety of other persons” (s. 219(1)), or “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” (s. 215(2)(a)(ii)). The risk of harm is therefore generally set out in the statutory description of the actus reus.

253 In other words, in determining whether the fault element has been established, a significant consideration is the assessment of the “risk of harm” as contained in the third element of the actus reus. And in fact, such an assessment may have been the objective of the trial judge here when, immediately after identifying to the jury the standard of marked departure, he indicated that the reasonable person in the circumstances of the Stephans would have foreseen that medical attention was required to maintain their child’s life. But if this was the trial judge’s objective (i.e., to instruct on assessing “risk of harm” for the purpose of a marked departure assessment) when he made this statement, it was not at all clear from his jury instructions. Moreover, as previously discussed, it appears that the trial judge was inviting the jury to assume that the reasonable person would have foreseen harm or endangerment (third element of actus reus) before actually letting the jury make a finding that regard.

254 In sum, in determining whether the Stephans’ conduct constituted a marked departure from that of a reasonably prudent parent, the trial judge had an obligation to properly instruct the jury both as to (1) the meaning of marked departure, and (2) the notion of “risk of harm”. The jury needed to be told that the concept of marked departure was to be assessed on the basis of how far the accused’s conduct departed from that of a reasonably prudent parent. The jury needed to be specifically instructed on this because of all the medical evidence they had heard. The jury should have been expressly cautioned that a marked departure was not failing to do what a medical doctor would do when presented with the symptoms exhibited by their child.”

[26] It follows from Stephan that:

“265 It appear to be settled law that Parliament intended an objective standard of care when it mandated the duty to provide the necessaries of life in section 215(1) of the Criminal Code. But whether that objective standard has been met or breached is very much dependent upon circumstances. The question is what would the reasonably prudent parent have done in the circumstances which presented themselves to the accused. Those circumstances needed to be considered in assessing: (1) whether there had been a failure, and (2) in the event there had been a failure, whether that failure was a marked departure from the conduct of a reasonably prudent parent.

266 Also a requirement in assessing whether the marked departure standard has been met is foreseeability of harm or endangerment. Foreseeability is engaged because the standard is one of the reasonably prudent parent. To reiterate, the circumstances which presented themselves to the accused affect the determination of what was or was not foreseeable. Hindsight is not foreseeability. That is why, in this case, it was so critical that the jury be carefully instructed to consider the circumstances as they unfolded and what the accused did to address those circumstances as they unfolded. The instructions need to address the facts as they presented themselves to the accused, what the accused did in response to those facts and when they did it.”

[27] Importantly, I note the distinction between this offence that Mallorie Makara is charged with and criminal negligence by omission as outlined in R. v. J.F. 2008 SCC 60 as follows:

“ 64 The essential elements of the offences of criminal negligence by omission and of failing to provide the necessaries of life differ. The offences are both negligence-based, however.

65 The underlying premise for finding fault in respect of a negligence-based offence lies in the “failure to direct the mind to a risk [of harm] which the reasonable person would have appreciated” (R. v. Creighton, at p. 58). However, the fault element is in large part premised on the actus reus. Indeed, the inquiry into the actus reus entails an objective assessment of the specific risk of harm at issue. The judge will determine what the specific risk is by looking at the words of the statute. For example, for the purposes of various Criminal Code offences, the risk of harm can be defined as “in a manner that is dangerous to the public” (s. 249(1)(a)), “in a careless manner or [page 242] without reasonable precautions for the safety of other persons” (s. 86(1)), “shows … disregard for the lives or safety of other persons” (s. 219(1)), or “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” (s. 215(2)(a)(ii)). The risk of harm is therefore generally set out in the statutory description of the actus reus.

66 The actus reus of failing to provide the necessaries of life will be established if it is proved (1) that the accused was under a legal duty to provide the necessaries of life to the person in question pursuant to s. 215(1)(a); (2) that, from an objective standpoint, he or she failed to perform the duty; and (3) that, again from an objective standpoint, this failure endangered the life of the person to whom the duty was owed, or caused or was likely to cause the health of that person to be endangered permanently. Following Charron J.’s reasoning in R. v. Beatty, 2008 SCC 5, the marked departure standard is not applied at this point, since “[n]othing is gained by adding to the words of [the statute] at this stage of the analysis” (para. 45).

67 The mens rea of failing to provide the necessaries of life will be established if it is proved that the conduct of the accused represented a marked departure from the conduct of a reasonable parent, foster parent, guardian or family head in the same circumstances. The conduct must represent a marked departure because, as Lamer C.J. indicated: “Unlike negligence under civil law, which is concerned with the apportionment of loss, penal negligence is concerned with the punishment of moral blameworthiness” (R. v. Gosset, at p. 93). As Charron J. stated: “The degree of negligence is the determinative question because criminal fault must be based on conduct that merits punishment” (Beatty, at para. 35). Thus, “penal negligence punishes a marked departure from an objectively reasonable standard of care” (R. v. Naglik, at p. 142 (emphasis in original)).

68 Turning to the offence of criminal negligence, the actus reus will be established if it is proved (1) that the accused was under a legal duty to do something; (2) that, from an objective standpoint, he or she failed to perform the duty; and (3) that in failing to perform the duty, he or she showed, again from an objective standpoint, wanton or reckless disregard for the lives or safety of other persons. Proof of the mens rea will flow from a finding that the conduct of the accused was wanton or reckless. Wanton or reckless behaviour has been equated with a marked and substantial departure from the norm (H. Parent, Traité de droit criminel (2nd ed. 2007), vol. 2 at p. 299), which necessarily includes behaviour that constitutes a marked departure.

69 From the above discussion, it is clear that the two offences do not have the same actus reus. It is true that they may involve the same legal duty. However, in addition to the fact that criminal negligence requires evidence of wanton or reckless conduct, whereas the standard for a failure to provide the necessities of life is a marked departure from the conduct of a reasonable person in the same circumstances, the offences involve different types of risk of harm. In the actus reus of criminal negligence, the risk of harm is defined as “shows … disregard for the lives or safety of other persons”, whereas in the actus reus of the failure to provide the necessaries of life, it is defined as “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”. In the present case, the trial judge clearly understood that the offence of failing to provide the necessaries of life involves a distinct type of harm. His instructions to the jury on this point were clear.”

[28] The Supreme Court of Canada recently provided further guidance as follows in R. v. Goforth, 2022 SCC 25:

“ 27 Section 215 creates a penal negligence offence. It 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” (R. v. Naglik, at p. 141 (emphasis deleted)). Liability is premised on what a reasonable person in the accused’s position would have known or foreseen, so “fault lies in the absence of the requisite mental state of care” (R. v. Beatty, 2008 SCC 5 at para. 8). The provision punishes conduct that is a marked departure from an objectively reasonable standard of care. More specifically, the mens rea requirement for s. 215 is established when the Crown proves that the accused’s conduct constitutes “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” (Naglik, at p. 143; see also R. v. J.F., 2008 SCC 60, at para. 8).

28 In R. v. Roy, 2012 SCC 26, at para 36, Cromwell J. provided a useful analytical framework for assessing whether objective mens rea has been made out:

It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances. [Emphasis in original.]

29 In this case, the Crown needed to prove beyond a reasonable doubt that Mr. Goforth had the requisite mens rea for the predicate offence under s. 215 as well as the requisite mens rea for the offences of manslaughter and unlawfully causing bodily harm.

30 In order to satisfy the mens rea requirement for s. 215, the Crown needed to prove that (a) it was objectively foreseeable, to a reasonable person in the circumstances of the accused, that the failure to provide food, fluids, or medical care would lead to a risk of danger to the life, or a risk of permanent endangerment to the health, of the children; and that (b) the accused’s conduct represented a marked departure from the conduct expected of a reasonably prudent parent, foster parent, guardian or head of a family in the circumstances.

31 In order to satisfy the mens rea requirement for either manslaughter or unlawfully causing bodily harm, the Crown needed to prove – in addition to establishing the mens rea for s. 215 – that it was objectively foreseeable, to a reasonable person in the circumstances of the accused, that the failure to provide necessaries of life to the children would lead to a risk of bodily harm which was neither trivial nor transitory (Creighton, at pp. 44-45). This is a lower foreseeability standard than what is required for s. 215, as the foreseeability of death or permanent endangerment to health is not required. Therefore, when the offence under s. 215 is the predicate offence for either manslaughter or unlawfully causing bodily harm, if the Crown proves the requisite mens rea requirement for s. 215, then, by necessary implication, the additional mens rea requirement for manslaughter or unlawfully causing bodily harm will be satisfied.”

[29] As originally stated by Justice McLachlin in R. v. Creighton:

“110 By way of background, it may be useful to restate what I understand the jurisprudence to date to have established regarding crimes of negligence and the objective test. The mens rea of a criminal offence may be either subjective or objective, subject to the principle of fundamental justice that the moral fault of the offence must be proportionate to its gravity and penalty. Subjective mens rea requires that the accused have intended the consequences of his or her acts, or that knowing of the probable consequences of those acts, the accused have proceeded recklessly in the face of the risk. The requisite intent or knowledge may be inferred directly from what the accused said or says about his or her mental state, or indirectly from the act and its circumstances. Even in the latter case, however, it is concerned with “what was actually going on in the mind of this particular accused at the time in question”: L’Heureux-Dubé J. in R. v. Martineau, supra, at p. 655, quoting Stuart, Canadian Criminal Law (2nd ed. 1987), at p. 121.

111 Objective mens rea, on the other hand, is not concerned with what the accused intended or knew. Rather, the mental fault lies in failure to direct the mind to a risk which the reasonable person would have appreciated. Objective mens rea is not concerned with what was actually in the accused’s mind, but with what should have been there, had the accused proceeded reasonably.

112 It is now established that a person may be held criminally responsible for negligent conduct on the objective test, and that this alone does not violate the principle of fundamental justice that the moral fault of the accused must be commensurate with the gravity of the offence and its penalty: R. v. Hundal.

113 However, as stated in Martineau, it is appropriate that those who cause harm intentionally should be punished more severely than those who cause harm inadvertently. Moreover, the constitutionality of crimes of negligence is also subject to the caveat that acts of ordinary negligence may not suffice to justify imprisonment: R. v. City of Sault Ste. Marie; R. v. Sansregret. To put it in the terms used in Hundal, the negligence must constitute a “marked departure” from the standard of the reasonable person. The law does not lightly brand a person as a criminal.”

[30] Once again in R. v. Goforth, the Supreme Court of Canada recently outlined:

“41 The law is clear that personal characteristics of an accused, short of incapacity, are irrelevant in assessing objective mens rea (Creighton, at p. 61). In Creighton, the majority of this Court rejected the view that “individual excusing conditions” (p. 63) such as educational, experiential, and “habitual” characteristics of an accused may be taken into account (p. 61). Consideration of personal characteristics, short of incapacity, injects subjectivity into the objective test, which undermines the purpose of having a single and uniform minimum legal standard of care (pp. 61 and 70). This is not to say that the reasonable person is placed in a factual vacuum. “While the legal duty of the accused is not particularized by his or her personal characteristics short of incapacity, it is particularized in the application by the nature of the activity and the circumstances surrounding the accused’s failure to take the requisite care” (p. 71; see also R. v. Javanmardi, 2019 SCC 54, at paras. 36-38). The reasonable person is therefore placed in the relevant circumstances of the accused. These circumstances “do not personalize the objective standard; they contextualize it” (D. M. Paciocco, “Subjective and Objective Standards of Fault for Offences and Defences” (1995), 59 Sask. L. Rev. 271, at p. 285).”

[31] In R. v. Ibrahim 2019 ONCA 631, the Ontario Court of Appeal recently outlined the following:

“[31] Cromwell J. followed this approach in Roy, at paras. 39-41. Cromwell J. explained that determining whether the marked departure fault element is established will generally require the trier of fact to draw inferences from all the circumstances: at para. 39. This in turn requires the trier of fact to examine all of the evidence, including evidence about the accused’s actual state of mind.

[32] Although evidence of an accused person’s state of mind is relevant to fault for dangerous driving, it operates differently within he modified objective framework than it would in the case of an offence based on subjective mens rea. Factual assertions in an accused person’s evidence – about things observed, actions performed, the sequence of events, etc. – may be helpful to a jury in determining whether the Crown has proved the fault requirements for dangerous driving. Such testimony may well raise a reasonable doubt.

[33] However, given that these subjective perceptions must be considered within an objective framework, their acceptance does not necessarily lead to a verdict of not guilty. That is, it may be possible for the trier of fact to accept the accused’s evidence about what occurred but find that the marked departure standard has been proved. Still, as Beatty makes clear, the testimony of an accused person about his or her perceptions may be capable of raising a reasonable doubt about whether a reasonable person in the circumstances would have been aware of the risk created by the conduct. Indeed, the wording in Beatty, at para. 49, directs that where such evidence is adduced, the trier of fact must consider whether this evidence raises [page 284] a reasonable doubt. This is consistent with the underlying justification for the modified objective test as explained by Charron J. in Beatty, at para. 8:

Objective mens rea is based on the premise that a reasonable person in the accused’s position would have been aware of the risks arising from the conduct ... However, where the accused raises a reasonable doubt whether a reasonable person in his or her position would have been aware of the risk arising from the conduct, the premise for finding objective fault is no longer sound and there must be an acquittal.

[34] Therefore, in light of the direction in Beatty, the testimony of an accused person may be relevant to the actus reus of dangerous driving, as well as the two interrelated mens rea elements: (i) whether the conduct in question constitutes a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances; and (ii) whether a reasonable person in similar circumstances would have been aware of the risk of the danger involved in the conduct manifested by the accused.”

[32] From R. v. Mills, 2021 ONSC 6900, Justice Forestell of this Court outlines:

“ 396 While the standard of care may be easily articulated, giving meaningful content to the standard as it applies in the unique circumstances of this case, is more difficult. The British Columbia Court of Appeal, in the case of Bergen v. Guliker Estate, 2002 BCCA 496, described this process:

109 Translating the general standard into particular obligations imposed on a defendant in a given case (i.e., the content of the standard) and the determination of whether the defendant has met those obligations (i.e., whether there is a breach), are questions of fact …

110 External indicators of reasonable conduct, including professional standards and internal policy, may inform the content of the standard and whether it was breached. However, policies and statutory standards, while instructive, are not definitive of the content of the standard of care… [citations omitted]

111 Similarly, while compliance with policy may be an important factor to consider in determining whether the standard of care has been met, failure to follow policy does not automatically compel the conclusion that the standard of care was breached.

397 While, generally, expert evidence is called to establish the parameters of the standard of care in a case of criminal negligence in the context of a trade or profession, determining the standard of care of a careful or prudent parent does not generally require expert evidence. As the Alberta Court of Appeal held in R. v. Clark, 2005 ABCA 264:

Expert evidence is antithetical to the standard of the reasonable person, or the reasonably prudent parent. The conduct of the accused is to be measured against something that is commonly understood by members of society – a ‘societal minimum which has been established for conduct’ or a ‘uniform minimum level of care’. An expert in parenting does not set the standard under this section, nor does a medical doctor. It is the conduct of the reasonably prudent parent that is the measure.

398 Although the standard of care for a teacher is that of a careful and prudent parent, the Supreme Court of Canada has cautioned that the application of the standard will vary from case to case and “will depend upon the number of students being supervised at any given time, the nature of the exercise or activity in progress, the age and the degree of skill and training which the students may have received in connection with such activity, the nature and condition of the equipment in use at the time, competency and capacity of the students involved, and a host of other matters which may be widely varied but which, in a given case, may affect the application of the prudent parent standard to the conduct of the school authority in the circumstances”.

399 In applying the standard, I must also bear in mind that the standard is “… not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable [person], judged in the circumstances prevailing at the time…”.

[33] Since the Crown has proceeded against Mallorie Makara on an indictable offence, it is to be noted that upon conviction she will be liable to imprisonment for a term not exceeding five years. In this regard, the Supreme Court of Canada in R. v. Beatty 2008 SCC 5 outlined the following:

“ 6 In my respectful view, the approach advocated by the Crown does not accord with fundamental principles of criminal justice. Unquestionably, conduct which constitutes a departure from the norm expected of a reasonably prudent person forms the basis of both civil and penal negligence. However, it is important not to conflate the civil standard of negligence with the test for penal negligence. Unlike civil negligence, which is concerned with the apportionment of loss, penal negligence is aimed at punishing blameworthy conduct. Fundamental principles of criminal justice require that the law on penal negligence concern itself not only with conduct that deviates from the norm, which establishes the actus reus of the offence, but with the offender’s mental state. The onus lies on the Crown to prove both the actus reus and the mens rea. Moreover, where liability for penal negligence includes potential imprisonment, as is the case under s. 249 of the Criminal Code, the distinction between civil and penal negligence acquires a constitutional dimension.

7 The modified objective test established by this Court’s jurisprudence remains the appropriate test to determine the requisite mens rea for negligence-based criminal offences. As the label suggests, this test for penal negligence “modifies” the purely [page 57] objective norm for determining civil negligence. It does so in two important respects. First, there must be a “marked departure” from the civil norm in the circumstances of the case. A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence, but will not suffice to ground liability for penal negligence. The distinction between a mere departure and a marked departure from the norm is a question of degree. It is only when the conduct meets the higher threshold that the court may find, on the basis of that conduct alone, a blameworthy state of mind.

8 Second, unlike the test for civil negligence which does not concern itself with the mental state of the driver, the modified objective test for penal negligence cannot ignore the actual mental state of the accused. Objective mens rea is based on the premise that a reasonable person in the accused’s position would have been aware of the risks arising from the conduct. The fault lies in the absence of the requisite mental state of care. Hence, the accused cannot avoid a conviction by simply stating that he or she was not thinking about the manner of driving. However, where the accused raises a reasonable doubt whether a reasonable person in his or her position would have been aware of the risks arising from the conduct, the premise for finding objective fault is no longer sound and there must be an acquittal. The analysis is thus contextualized, and allowances are made for defences such as incapacity and mistake of fact. This is necessary to ensure compliance with the fundamental principle of criminal justice that the innocent not be punished.”

[34] Since Mallorie Makara chose to testify in this trial, it is helpful to return to the suggested language in R. v. W.(D.). Writing for the majority, Cory J., at p. 758 S.C.R., wrote that a trial judge “might well instruct the jury on the question of credibility” along the following lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

Judges have tinkered with the language of this formulation over the years. Some judges prefer a four-part approach over the three-part approach set out by Cory J. However, the core remains the same – the instruction is meant to explain how reasonable doubt applies to credibility. More specifically, the instruction is intended to convey to the jury that they must consider whether based on the whole of the evidence, including the testimony of the accused, they are left with a reasonable doubt.

[35] Upon making my credibility assessments of all of the witnesses that testified, and in applying the facts of this case as I have found them to the applicable law as I have discussed, I have been satisfied that the Crown has proven beyond a reasonable doubt the actus reus of this offence. Specifically, I have been satisfied beyond a reasonable doubt that (1) Mallorie Makara was under a legal duty to provide the necessaries of life to Rhonda McClenaghan; and (2) that from an objective standpoint, she failed to perform the duty; and (3) that, again from an objective standpoint, her failure endangered Rhonda’s life, or caused or was likely to cause the health of Rhonda to be endangered permanently.

[36] The question remains whether the Crown has proven beyond a reasonable doubt the mens rea of failing to provide the necessaries of life which will be established if it is proved beyond a reasonable doubt that the conduct of Mallorie Makara represented a marked departure from the conduct of a reasonable caregiver in the same circumstances. As indicated in the caselaw, there is only a blameworthy state of mind on the basis of the conduct alone arising from a marked departure from the norm, as distinguished from a mere departure. The degree of negligence is the critical issue since criminal fault is to be based only on conduct that merits punishment. And the circumstances which presented themselves to Mallorie Makara affect the determination of what was or was not foreseeable. “Hindsight is not foreseeability”.

[37] It is to be noted that section 215 of the Criminal Code does not prescribe specific standards for caregivers, and certainly not for a part-time night caregiver in the circumstances of Mallorie Makara at Banner House that morning. The Crown has submitted that the accused failed to comply with Quality Assurance Measures, Rhonda’s Individual Support Plan, a Memo from her Manager more than a year earlier, and an apparently disorganized Communication/Daily Log binder to demonstrate that the expected standard of care had been breached by her. However, internal policy itself, while instructive, does not define the content of the community standard of care on an objective basis for caregivers. And as indicated in the Mills decision, a failure to follow policy does not automatically compel the conclusion that the standard of care was breached in circumstances such as described here by Gabrielle Lamb and the accused where the policy was not widely followed nor enforced by the Managers.

[38] This issue of whether or not the conduct of Mallorie Makara that morning rises to the higher threshold of a marked departure sufficient to brand her as a criminal has required me to make important credibility assessments regarding the testimony of Carol Fryer, Gabrielle Lamb, and also of the accused.

[39] Gabrielle Lamb presented as a very credible witness and she testified in a quite straightforward manner of an obviously emotional event for her. I accept that her version of the events is truthful, and this prosecution witness contradicted in many significant ways the testimony of Carol Fryer, Rhonda’s primary support worker and the person in charge of Rhonda’s Individual Support Plan. Gabrielle Lamb confirmed that Carol Fryer had said that she wanted Rhonda to be bathed only in the sling without the bath chair because Rhonda could be lowered more in the bathtub so that more of her body would be in warm water. Gabrielle Lamb had also personally seen Carol Fryer bathe Rhonda and leave her in the bathtub unattended in the sling without the bath chair for lengthy periods of time. She stated that she had seen Carol Fryer go start Rhonda’s breakfast in the kitchen area while Rhonda was in the bathtub alone in the bathroom down the hall.

[40] Gabrielle Lamb also testified that the seatbelt, or strap, for the bath chair was not available at times, or misplaced. She had personally observed Mallorie Makara bathing Rhonda in the sling without the bath chair and that the accused was not her only co-worker bathing Rhonda and leaving her unattended to soak in her sling without the bath chair. According to her, it was “quite common” and that it was Carol Fryer who established that practice with Rhonda for the purpose of allowing Rhonda to soak longer and deeper in the bathtub. Gabrielle Lamb replied that if she believed that in doing so Mallorie Makara was endangering Rhonda’s life, she would not have let her do it. She confirmed that Mallorie Makara, and other co-workers, were following Carol Fryer’s practice and direction with respect to bathing Rhonda to help with her joints.

[41] Although Gabrielle Lamb chose not to leave the bathroom with Rhonda in the bathtub, therefore not leaving the jets on as long as Carol Fryer had asked, she did however choose to use the bath chair to bathe Rhonda. Gabrielle Lamb confirmed as well that Rhonda’s primary support worker Carol Fryer had “asked us to allow Rhonda to soak for at least 3 jets which at 20 minutes each is about an hour”. Her testimony was that Carol Fryer had said “we could turn on the jets and then go tidy Rhonda’s room or start laundry while waiting for the jets to run, then check on her and when the jets stop to turn them back on again”.

[42] Gabrielle Lamb also testified that the training at Banner House was done by her and other co-workers there, and not by the Management. She confirmed that there was minimal interaction with others including Managers. In effect, Gabrielle Lamb’s testimony corroborated quite well with the testimony of the accused Mallorie Makara, and was in many ways completely contradictory to the testimony proffered by another prosecution witness, Carol Fryer.

[43] On the other hand Carol Fryer did not testify in a straightforward manner. She appeared extremely nervous and could not recall many details of issues that Gabrielle Lamb and Mallorie Makara discussed in their testimony. Although she was being subjected to extensive cross-examination by defence Counsel, she became extremely defensive and even argumentative during her answers to the point of being evasive at times. I therefore had great difficulty with not only the reliability, but also the credibility, of much of her testimony. It was obvious when answering questions on critical issues that she may have felt pressure from either her employment supervisors or maybe even the McClenaghan family; all present in the Courtroom during her testimony.

[44] Mallorie Makara testified of her educational background to become a Social Service Worker however she described why she became employed by Community Living North Bay. She stated that she received very little training from their Management for long term care of group home residents with physical and developmental disabilities, however she started working at Banner House in December 2013. Her training therefore consisted of watching full-time staff there “do what they do”, including the bathing routine they employed. In fact, Mallorie Makara indicated that two other residents at Banner House could not fit in the bath chair so they had to be bathed in the sling alone.

[45] With respect to the Memo dated May 4, 2017 from the Manager at Banner House at that time, Dan Lachance, Mallorie Makara testified that it was never brought to her attention as part-time night staff. Although the Memo was initialled by both full-time staff that testified, Carol Fryer and Gabrielle Lamb, it was not initialled by Mallorie Makara who testified that, if she had seen it, she would have initialled it.

[46] Mallorie Makara testified that two or three weeks before July 9, 2018, she had a conversation with Carol Fryer about bathing Rhonda without the bath chair so that she could be more submerged in the water for her joints. She had this conversation because it was apparent that Carol Fryer had directed staff that Rhonda was to be soaking for longer in the tub to help her joints. According to Mallorie Makara, Carol Fryer’s practice was to leave Rhonda suspended in her sling in the water without the bath chair to soak for 2 rounds of jets, which would be for up to 40 minutes. And although Carol Fryer denied, or could not recall, any such direction and practice, the evidence is that Carol Fryer did add the following in Rhonda’s Individual Support Plan: “Jacuzzi tub every day, likes to splash in the water and have several jets”. Carol Fryer also confirmed that Banner House is “a very busy house”.

[47] For the reasons that follow, the credibility of primarily two key prosecution witnesses as well as the credibility of this accused who testified became critical issues in determining whether the prosecution has proven each element of this offence beyond a reasonable doubt. And in that determination, I much prefer the testimony proffered by Gabrielle Lamb and Mallorie Makara over that presented by Carol Fryer, and I find that the reliability and credibility of both night staff was established as truthful.

[48] As indicated by Justice Cromwell in Roy, in assessing whether objective mens rea has been made out the first question is whether in light of all relevant evidence, a reasonable person would have foreseen the risk to Rhonda in leaving her alone soaking in the bathtub in her sling and taken steps to avoid it if possible. If so, the second question is whether Mallorie Makara’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in Mallorie Makara’s circumstances.

[49] For this Court to answer those two questions, it is extremely important to appreciate that this factual scenario does not involve any overt action by Mallorie Makara toward Rhonda, a person she very much cared for. The allegation is rather inaction or omission by Mallorie Makara that led to Rhonda’s drowning. And although the law is clear that Mallorie Makara’s personal characteristics, short of incapacity, are irrelevant in assessing objective mens rea since that injects subjectivity into the objective test, the reasonable person is not placed in a factual vacuum. The reasonable person is therefore placed in the relevant circumstances of Mallorie Makara that morning. As such, I do not personalize the objective standard, I contextualize it here in her circumstances. I must also bear in mind that the standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable person, judged in the circumstances prevailing at the time.

[50] Leading up to the time when Mallorie Makara left Rhonda soaking in the bathtub with the jets on, as directed and seen to be done by her primary support worker, Mallorie Makara testified that she believed that Rhonda was secured safely in her sling in the water. She obviously had no reason to believe that Rhonda would slip sideways in her personal sling. This Court is left to speculate how that may have happened on this evidence presented, and in fact Rhonda’s personal sling was never located after that morning, nor examined by these litigants or produced for this trial.

[51] Objective mens rea is based on the premise that a reasonable person in Mallorie Makara’s position would have been aware of the risk arising from her conduct that morning. It was a very busy morning for these two night staff caring for 7 or 8 residents, with three more residents still to bathe after Rhonda. The more experienced of the two, Gabrielle Lamb, certainly did not think that it was unusual or even dangerous for Mallorie Makara to be looking for cough medication when they were having a conversation in the dining area. Gabrielle Lamb assumed that Rhonda was left alone in the bathtub because the jets were on, and she also would have been aware of any risk of danger to Rhonda involved in the conduct being manifested by the accused. Having regard to the direction and also the practice of Rhonda’s primary support worker, Carol Fryer, as well as the common practice existing at Banner House at that time for the staff bathing Rhonda by leaving her in her sling without the bath chair soaking with jets in the tub for her joints certainly raises a reasonable doubt of whether a reasonable person in Mallorie Makara’s position would have been aware of the risk arising from such conduct when it was being done by other staff including Carol Fryer. Mallorie Makara obviously got distracted by assisting the agitated first man with his cough, she could not determine if he was prescribed cough medicine and did not find any. She sought the assistance of the more experienced Gabrielle Lamb before they decided to check on Rhonda. Mallorie Makara made an inadvertent error in judgement in that time span, with tragic consequences, however I have not been satisfied beyond a reasonable doubt that it was a marked departure from the conduct of a reasonable caregiver in the same circumstances. The premise for finding objective fault by Mallorie Makara that morning therefore has not been proven beyond a reasonable doubt for this offence.

Conclusion

[52] For all of these written reasons on this evidence as I have found it, I have not been satisfied that the degree of negligence that morning was such that criminal fault attaches to such conduct meriting criminal punishment. I have not been satisfied beyond a reasonable doubt that she had the requisite mens rea to brand her as a criminal on this evidence for this criminal offence. I therefore find Mallorie Makara not guilty.

Released: May 1, 2023 The Honourable Mr. Justice David J. Nadeau