COURT OF APPEAL FOR ONTARIO

DATE: R. v. Doering, 2022 ONCA 559

DOCKET: C67952

Fairburn A.C.J.O., Doherty and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicholas Doering

Appellant

Alan D. Gold and Ellen Williams, for the appellant

Jamie Klukach and Samuel Greene, for the respondent

Michael Lacy and Philip Wright, for interveners, the Toronto Police Association (“TPA”) & Canadian Police Association (“CPA”)

Joseph Markson and Kate Robertson, for the intervener, the Police Association of Ontario (“PAO”)

Heard: February 9, 2022 by video conference

On appeal from the convictions entered by Justice R.M. Pomerance of the Superior Court of Justice on November 1, 2019, with reasons reported at 2019 ONSC 6360, and the sentence imposed on September 21, 2020, with reasons reported at 2020 ONSC 5618.

Doherty J.A.:

I Overview

[1] The appellant, a police officer with the London Ontario Police Service (“LPS”), was tried by a judge alone on one count of failing to provide Debra Chrisjohn (“Ms. Chrisjohn”) with the necessaries of life contrary to s. 215(2)(b) of the Criminal Code, R.S.C., 1985, c. C-46, and one count of criminal negligence causing death contrary to s. 220 of the Criminal Code. Both charges arose out of the same events.[^1]

[2] The appellant arrested Ms. Chrisjohn on an outstanding warrant in the early evening of September 7, 2016. Ms. Chrisjohn had ingested what turned out to be a toxic level of methamphetamine. She was obviously significantly impaired. About an hour later, the appellant turned Ms. Chrisjohn over to the Ontario Provincial Police (“OPP”), who had obtained the warrant on which she had been arrested. The OPP officers drove Ms. Chrisjohn to the OPP local lockup. About 40 minutes later, Ms. Chrisjohn was examined by Emergency Medical Services (“EMS”) personnel. They took her to the hospital. Ms. Chrisjohn died less than an hour later of a heart attack brought on by “methamphetamine toxicity”.

[3] On the failure to provide necessaries charge, the Crown alleged that the appellant was under a legal duty to provide medical assistance to Ms. Chrisjohn while she was in his custody. The appellant’s failure to provide medical assistance before he turned Ms. Chrisjohn over to the OPP endangered her life and breached the appellant’s duty to provide the “necessaries of life” under s. 215(1)(c) of the Criminal Code. The Crown further alleged that, in the circumstances, the risk of harm to Ms. Chrisjohn flowing from the failure to provide medical assistance was reasonably foreseeable and the appellant’s conduct amounted to a marked departure from the conduct expected of a reasonably prudent police officer in the same circumstances.

[4] On the criminal negligence charge, the Crown alleged that, at the time the appellant transferred Ms. Chrisjohn to the OPP officers, he deliberately misled the officers by indicating she had been assessed by EMS personnel and that her condition had not changed while she was in the appellant’s custody. The Crown alleged both statements were, to the appellant’s knowledge, false and showed a wanton and reckless disregard for Ms. Chrisjohn’s life. The Crown maintained the appellant’s misrepresentations to the OPP officers who were assuming custody of Ms. Chrisjohn constituted a marked and substantial departure from the conduct expected of a reasonably prudent police officer in the circumstances. Finally, the Crown argued that the appellant’s misrepresentations to the OPP officers delayed Ms. Chrisjohn’s ultimate access to medical assistance and thereby materially contributed to her death.

[5] The appellant testified. He indicated that he did not believe Ms. Chrisjohn was in need of medical attention at any time while she was in his custody. Based largely on his considerable personal experience with individuals in his custody who had consumed drugs, including methamphetamine, the appellant believed Ms. Chrisjohn was cycling through the stages associated with an individual “coming down” from the effects of a powerful drug. The appellant testified he believed those effects would eventually wear off without medical intervention. The appellant also indicated that his assessment was confirmed by the comments of Sean Hill, an EMS supervisor who spoke with the appellant shortly after he arrested Ms. Chrisjohn.

[6] In answer to the criminal negligence charge, the appellant submitted that he did not see any need for medical care when he transferred Ms. Chrisjohn to the OPP. Defence counsel at trial pointed out that the various OPP officers who took custody of Ms. Chrisjohn also saw no need for medical assistance until some time later, and only after Ms. Chrisjohn’s condition had worsened significantly. The appellant denied deliberately misleading the OPP when he transferred custody of Ms. Chrisjohn to them. He submitted that the evidence of the OPP officers and the appellant, at most, suggested some misunderstanding between the appellant and the OPP officers. Their evidence could not reasonably support the finding that the appellant deliberately misled the OPP officers about Ms. Chrisjohn’s condition.

[7] Trial counsel also argued that anything the appellant did or did not do at Tim Hortons before he turned Ms. Chrisjohn over to the OPP was not sufficiently connected to Ms. Chrisjohn’s death to establish legal causation.

[8] The trial judge made a finding of guilt on both counts. She summarized her findings at paras. 131-32 of her reasons:

I am satisfied that a reasonably prudent police officer would have appreciated the need for medical assistance at the time of the transfer to the OPP, if not before, and would have been aware of the risk that failure to obtain such medical assistance would endanger Ms. Chrisjohn’s life. I find in relation to s. 215 of the Code that Cst. Doering failed to provide Ms. Chrisjohn with the necessaries of life and demonstrated a marked departure from the standard of care of a reasonably prudent police officer.

I am further satisfied that, in providing the OPP with erroneous and incomplete information about Ms. Chrisjohn’s condition, Cst. Doering demonstrated a wanton and reckless disregard for Ms. Chrisjohn’s life. His conduct created a risk that medical assistance would be even further delayed. It represented a marked and substantial departure from the standard of care. It was a contributing cause of Ms. Chrisjohn’s death and grounds culpability, under s. 219 of the Code, for criminal negligence causing death.

[9] On sentencing, the trial judge applied the “Kienapple” principle and conditionally stayed the conviction on the failure to provide necessaries charge. She imposed a sentence of 12 months in jail with a 10-year firearm prohibition on the criminal negligence causing death charge.

[10] The appellant appeals conviction and seeks leave to appeal sentence. I would dismiss the appeal from the finding of guilt on the failure to provide necessaries charge, but would allow the appeal on the charge of criminal negligence causing death, and would enter an acquittal on that charge. The conditional stay on the failure to provide necessaries charge must be set aside. Submissions as to the appropriate disposition on the failure to provide necessaries charge are required.

II The Facts

(i) The Events of September 6, 2016

[11] The important events occurred between 5:30 p.m. and 8:48 p.m. on the evening of September 7, 2016. However, Ms. Chrisjohn had contact with LPS officers on September 6, 2016. That contact has some relevance to the events of September 7th.

[12] Constable Park of the LPS received a “check welfare” call just before noon on September 6, 2016. When he arrived at the scene, he spoke with Ms. Chrisjohn. She was clearly intoxicated. Ms. Chrisjohn seemed confused, nervous and unable to stand still. She had been running in and out of traffic. Constable Park spoke with Ms. Chrisjohn, but her responses did not make any sense. He believed she had consumed methamphetamine.

[13] Constable Park immediately radioed for an ambulance. While waiting for the ambulance, Constable Park learned that the OPP had a warrant outstanding for Ms. Chrisjohn’s arrest on a charge of breach of recognizance.

[14] The ambulance arrived and took Ms. Chrisjohn to the hospital where medical personnel monitored her condition. Constable Park contacted the OPP to tell them Ms. Chrisjohn was in custody. After some time, the OPP advised the LPS that the OPP would not execute the arrest warrant until Ms. Chrisjohn was “medically cleared” by the medical personnel at the hospital. This meant the OPP would not send a police officer to the hospital to replace Constable Park and wait with Ms. Chrisjohn while she was being monitored and eventually cleared by the medical personnel.

[15] Constable Park had no reason to hold Ms. Chrisjohn in custody apart from the warrant. When the OPP declined to execute the warrant, Constable Park released Ms. Chrisjohn. She left the hospital against medical advice.

[16] Constable Park explained that when he encountered Ms. Chrisjohn he called an ambulance because he did not have any grounds to arrest her and, given the situation, he did not believe he should just drive away. Constable Park did not think there was a medical emergency when he called for the ambulance.

(ii) The Events of September 7, 2016

[17] The timeline of the relevant events of September 7, 2016 is as follows:

TIME[^2]	EVENT
5:27 – 5:33 p.m.	Various persons notified LPS that a person (Ms. Chrisjohn) had been behaving bizarrely and was being restrained by a citizen near the Petro-Canada station.
5:34 – 5:35 p.m.	The appellant is dispatched to the scene. The dispatch describes the person of interest as “a crackhead”.
5:36 p.m.	After speaking to Constable Park, who dealt with Ms. Chrisjohn the day before, the appellant runs Ms. Chrisjohn’s name through CPIC and confirms the outstanding warrant for her arrest.
5:40 p.m.	The appellant arrives at the Petro-Canada station.
5:40 p.m. – 5:45 p.m.	The appellant advises Ms. Chrisjohn of the outstanding warrant, arrests her, handcuffs her, and places her in the back of his cruiser.
5:50 p.m.	The appellant contacts OPP to determine whether they will execute the warrant and take custody of Ms. Chrisjohn.
5:50 p.m. – 5:54 p.m.	Sean Hill, an EMS supervisor, arrives on the scene. He speaks with the appellant who asks whether Ms. Chrisjohn should be taken to the hospital. Based on Supervisor Hill’s answers, the appellant believed there was no need to take Ms. Chrisjohn to the hospital.
5:59 p.m.	The appellant advises Ms. Chrisjohn of her right to counsel.
6:20 p.m.	The OPP agree to take custody of Ms. Chrisjohn and arrange with the appellant to meet him at a Tim Hortons part way between the Petro-Canada station and the OPP station.
6:25 p.m.	The appellant leaves the Petro-Canada station on his way to the Tim Hortons.
6:26 – 6:31 p.m.	On his way to the Tim Hortons, the appellant communicates with Constable Park. He refers to Ms. Chrisjohn as “high on meth”. Park tells the appellant about his encounter with Ms. Chrisjohn on September 6 and describes the OPP as “very annoying to try and deal with”.
6:38 p.m.	The appellant arrives at the Tim Hortons. The OPP arrive about a minute later.
6:57 p.m.	The OPP leave the Tim Hortons with Ms. Chrisjohn in their custody.
7:03 p.m. – 7:11 p.m.	The OPP arrive at the lockup. Ms. Chrisjohn has to be lifted from the vehicle and carried into the station. The parties agree that by the time Ms. Chrisjohn arrived at the OPP station, she was “in a critical state and required urgent medical intervention and treatment”.
7:20 p.m.	Ms. Chrisjohn is lodged in the cells at the OPP lockup.
7:28 p.m.	A sergeant at the OPP lockup decides to contact EMS and request an assessment of Ms. Chrisjohn’s medical condition. Constable McKillop of the OPP speaks with EMS and advises that there is no need to treat the request for attendance as an emergency.
7:36 p.m.	EMS arrives at the lockup and Ms. Chrisjohn is examined. She is non-responsive.
7:52 p.m.	EMS transports Ms. Chrisjohn to the hospital.
7:58 p.m.	EMS arrive at the hospital with Ms. Chrisjohn. She is in dire condition.
8:48 p.m.	Ms. Chrisjohn dies of a heart attack caused by methamphetamine toxicity.

III The Conviction Appeal

[18] In his factum and in oral argument, counsel for the appellant advanced several grounds of appeal. I will approach the appeal by considering first the arguments applicable to the failure to provide necessaries charge, and then the arguments applicable to the criminal negligence causing death charge. Some of the arguments have application to both charges.

A. The failure to provide necessaries charge

(i) The relevant evidence

[19] When the appellant spoke with Ms. Chrisjohn at the Petro-Canada station at about 5:40 p.m., she was agitated, sometimes aggressive, and at times delusional. She appeared to be “very high” on what the appellant believed to be methamphetamine. Ms. Chrisjohn did, however, cooperate with the appellant when he placed her under arrest, handcuffed her and put her in the cruiser. She was alert and responsive to most of his questions. From the appellant’s perspective, Ms. Chrisjohn appeared to be in the same condition as many other individuals the appellant had arrested who were high on methamphetamine. The appellant had never taken a prisoner to the hospital only because that prisoner was high on methamphetamine. If a prisoner high on methamphetamine was “unconscious” or “completely limp”, the appellant would take that prisoner to the hospital.

[20] The appellant was aware of Ms. Chrisjohn’s interaction with the LPS on the previous day before he arrived at the Petro-Canada station. He knew there was an outstanding warrant for her arrest. At about 5:50 p.m., he contacted the OPP to determine whether they would execute the warrant. In that communication, he referred to Ms. Chrisjohn as “high on crystal meth” and added that “it does not appear at this time that she requires to be cleared medically at the hospital”. Although the evidence is not entirely clear, it appears that the appellant sent this communication to the OPP immediately before he spoke with EMS Supervisor Hill.

[21] The appellant spoke with EMS Supervisor Hill shortly after Hill arrived at the Petro-Canada station. The appellant and Supervisor Hill were standing outside of the appellant’s cruiser looking towards Ms. Chrisjohn in the backseat. She was yelling profanities and acting aggressively. Supervisor Hill did not speak with Ms. Chrisjohn or attempt to examine her.

[22] Supervisor Hill and the appellant gave different versions of their conversation. The trial judge concluded that Supervisor Hill was not a reliable witness and accepted the appellant’s version of their conversation.

[23] Supervisor Hill asked the appellant if he needed any help. The appellant told Supervisor Hill he believed Ms. Chrisjohn was high on methamphetamine and questioned whether she would tolerate an assessment by EMS, given her agitated condition. The appellant asked Supervisor Hill whether there was anything EMS could do. Supervisor Hill replied that he could check Ms. Chrisjohn’s vital signs, but they would be “out of whack due to the drug”. The appellant then asked Supervisor Hill whether Ms. Chrisjohn should be taken to the hospital. Supervisor Hill told him that if Ms. Chrisjohn went to the hospital she would sit there for hours while being monitored.

[24] The appellant understood the comments of Supervisor Hill as confirming his own view that Ms. Chrisjohn did not have to go to the hospital. She could “ride out the high” while in custody. The appellant believed that it was safe to keep Ms. Chrisjohn in custody and monitor her condition.

[25] The trial judge concluded that the appellant was reasonably entitled to rely on Supervisor Hill’s statements and that, in doing so, he had not breached his duty to provide Ms. Chrisjohn with needed medical assistance. The trial judge said, at paras. 102-103:

At that stage, it was not unreasonable for Constable Doering to rely on what Mr. Hill told him. It is apparent that Mr. Hill had no interest in assessing Ms. Chrisjohn and his responses fortified Constable Doering’s belief that an assessment was not necessary.

Had that been the end of the matter, there would be insufficient evidence to ground criminal liability.

[26] The Crown does not challenge this finding on appeal.

[27] At 6:20 p.m., about 25 minutes after the appellant had spoken with Supervisor Hill, the OPP advised they would take custody of Ms. Chrisjohn and suggested that OPP officers would meet with the appellant to make the transfer. At 6:25 p.m., the appellant left the Petro-Canada station with Ms. Chrisjohn in the backseat of the cruiser, headed for the Tim Hortons where he was to meet the OPP and transfer custody of Ms. Chrisjohn.

[28] During the trip to Tim Hortons, Ms. Chrisjohn was seated in the backseat. At times, she appeared to slide down the seat. The appellant told her to sit up and she did so. The appellant noticed that Ms. Chrisjohn’s eyes were open and her head was up. At one point during the trip, Ms. Chrisjohn said something, but the appellant’s window was open and he could not hear what she said.

[29] The appellant and Ms. Chrisjohn arrived at Tim Hortons at 6:38 p.m., about 45 minutes after the appellant had spoken with Supervisor Hill. By the time they arrived at Tim Hortons, Ms. Chrisjohn was lying along the backseat. She was moaning and shaking. Ms. Chrisjohn did not physically respond to the appellant’s directions or commands. She appeared unable to sit up on her own in the cruiser.

[30] OPP Constables Billing and McKillop took custody of Ms. Chrisjohn at the Tim Hortons. They confirmed that Ms. Chrisjohn was making moaning sounds and shaking in the backseat of the appellant’s cruiser. She kicked out in the direction of one of the OPP officers when they attempted to remove her from the appellant’s cruiser. Ms. Chrisjohn groaned in response to directions from the OPP officers, but did not physically react to those directions or get out of the cruiser on her own. Ms. Chrisjohn was eventually helped out of the cruiser by the OPP officers and assisted across the parking lot to the OPP cruiser. She was only partially weight bearing.

[31] The appellant and OPP Constables Billing and McKillop believed that Ms. Chrisjohn was choosing to be uncooperative. They thought her conduct was typical of an individual coming down from the effects of methamphetamine consumption. They did not think Ms. Chrisjohn needed any medical assistance.

[32] Ms. Chrisjohn left the Tim Hortons with the OPP shortly before 7:00 p.m. The appellant had no further contact with her. Ms. Chrisjohn died a little under two hours later.

(ii) The trial judge’s findings

[33] The trial judge accepted the appellant’s evidence that he did not believe Ms. Chrisjohn required medical treatment at the time he turned her over to the custody of the OPP. However, the trial judge also found that the appellant was focussed on getting Ms. Chrisjohn into the custody of the OPP and was “far less concerned, if he was concerned at all, with her medical condition” (Reasons, at para. 112).

[34] The trial judge further held that the appellant was under a duty to seek medical assistance for Ms. Chrisjohn, at least no later than the time of his arrival with Ms. Chrisjohn at Tim Hortons. The appellant did not provide any medical assistance and thereby failed to provide the “necessaries of life” to Ms. Chrisjohn.

[35] The trial judge was also satisfied that the appellant’s actions demonstrated a marked departure from the standard of care expected of a reasonably prudent police officer. The trial judge said, at para. 98:

… [I]n failing to advert to the need for medical treatment, he turned a blind eye to risks that would have been apparent to a reasonably prudent police officer. I need not determine the precise point at which the duty to seek medical attention was triggered. I am satisfied that it was clearly engaged by the time Constable Doering arrived at the transfer location to meet the OPP. The failure to get medical help at that stage amounted to a failure to provide the necessaries of life and represented a marked departure from the standard of care of a reasonably prudent police officer.

(iii) The elements of the offence

[36] The relevant parts of s. 215 read:

215(1) 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 … to withdraw himself from that charge, and

(ii) is unable to provide himself with necessaries of life.

215(2) Every person commits an 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 …

[37] Section 215(1) creates duties designed to protect vulnerable individuals who are in the care, control or custody of others. Specifically, s. 215(1)(c) places a legal obligation on police officers to protect persons in their custody by providing them with the “necessaries of life”. That phrase is not defined in the Criminal Code. Case law has defined the term as meaning those things needed to protect the health and safety of prisoners from harm or the risk of harm. Medical attention that is necessary to protect a prisoner’s health or safety from harm or risk of harm is a necessary of life. In this context, harm, or risk of harm, refers to harm, or risk of harm, that is reasonably foreseeable and more than minor or transitory: R. v. C.O., 2022 ONCA 103, 412 C.C.C. (3d) 184, at paras. 42, 49-51; R. v. Peterson (2005), 201 C.C.C. (3d) 220 (Ont. C.A.), at para. 35, leave to appeal refused, [2005] S.C.C.A. No. 539; R. v. Popen (1981), 60 C.C.C. (2d) 232 (Ont. C.A.), at p. 240.

[38] The offence created by s. 215(2)(b) has four essential elements. The Crown was required to prove:

• The appellant was under the legal duty created by s. 215(1) to provide the necessaries of life to Ms. Chrisjohn while she was in his custody;
• The appellant failed to provide the necessaries of life;
• The failure to provide the necessaries of life endangered Ms. Chrisjohn’s life; and
• The conduct of the appellant represented a marked departure from the conduct of a reasonable police officer in circumstances where it was objectively foreseeable that the failure to provide medical attention to Ms. Chrisjohn endangered her life: see R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215, at para. 8; R. v. Goforth, 2022 SCC 25, at paras. 27-30.

[39] The first three elements outlined above constitute the actus reus or conduct component of the offence created by s. 215(2). The trial judge, at para. 95, referred to the actus reus as “admitted” by the defence. This is an accurate description of the position taken by the defence at trial. Not surprisingly, given that concession, the trial judge’s reasons focused on the mens rea or fault component of the offence. However, on appeal, some of the arguments challenge the proof of the conduct requirements of the offence. Consequently, it is necessary to address those elements.

(a) Was the appellant under a duty to provide Ms. Chrisjohn with medical attention?

[40] Ms. Chrisjohn was in the custody of the appellant before he transferred her to the OPP. Ms. Chrisjohn’s custody triggered a legal duty, obligating the appellant to provide Ms. Chrisjohn with the “necessaries of life” while in his custody. In the Agreed Statement of Facts, the parties agreed that:

Due to the effects of using methamphetamine, Debra Chrisjohn/Elijah required medical treatment and intervention at the time of her transfer to the Ontario Provincial Police in the Tim Hortons’ parking lot on September 7, 2016.

[41] In his closing submissions, defence counsel confirmed that Ms. Chrisjohn was “in need of medical attention”. He argued that the appellant mistakenly, and reasonably, believed she was not in need of medical assistance.

[42] The admission that Ms. Chrisjohn, because of her consumption of methamphetamine, “required medical treatment and intervention” while in the appellant’s custody, constituted an acknowledgement that medical treatment and intervention was a “necessary of life” within the meaning of s. 215(1)(c). Section 215(1)(c) imposed a duty on the appellant to provide that medical treatment and intervention.

[43] In any event, apart from the admissions at trial, I am satisfied that Ms. Chrisjohn’s physical condition when she arrived at the Tim Hortons, combined with her death from the effects of the consumption of methamphetamine a short time later, provide formidable circumstantial evidence that Ms. Chrisjohn was, as a matter of fact, in need of medical treatment and intervention while in the appellant’s custody: R. v. Romano, 2017 ONCA 837, at paras. 70-71.

(b) Was there a failure to provide medical treatment and intervention?

[44] Apart from speaking with Supervisor Hill at the Petro-Canada station, the appellant did not take any steps to provide Ms. Chrisjohn with medical treatment or intervention while she was in his custody.

(c) Did the failure to provide medical attention and care endanger Ms. Chrisjohn’s life?

[45] The Agreed Statement of Facts also speaks to this factual question. The parties agreed that:

For users who require medical treatment and intervention, the sooner they receive such intervention, the greater the chance of successful recovery or survival.

[46] The parties agreed that Ms. Chrisjohn required medical treatment and intervention while in the appellant’s custody at Tim Hortons. His failure to provide that treatment or intervention inevitably delayed the providing of medical attention to Ms. Chrisjohn. On the Agreed Statement of Facts, that delay decreased Ms. Chrisjohn’s chances of survival. The appellant’s failure to provide medical treatment or intervention, which inevitably delayed Ms. Chrisjohn’s access to medical attention and treatment, increased the chances she would die. The increased risk of death constituted an endangerment of Ms. Chrisjohn’s life within the meaning of s. 215(2)(b): see R. v. Thornton, 82 C.C.C. (3d) 530 (Ont. C.A.), at pp. 537-38, aff’d [1993] 2 S.C.R. 445.

(d) The fault requirement

[47] The fault, or mens rea requirement in s. 215(2)(b) is conduct based and determined by the “marked departure” metric: R. v. Naglik, [1993] 3 S.C.R. 122, at p. 143; J.F., at para. 8; C.O., at para. 62. In Naglik, Lamer C.J., for the court on this issue, described the identical fault component in s. 215(2)(a)(ii) in these terms:

[Section] 215(2)(a)(ii) punishes a marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanent endangerment to the health, of the child.

[48] Applying the language from Naglik to the facts of this case, the Crown was required to prove that:

• the appellant’s failure to obtain medical treatment and intervention before turning Ms. Chrisjohn over to the OPP constituted a marked departure from the conduct expected of a reasonably prudent police officer in the circumstances; and
• it was objectively foreseeable that the failure to provide medical treatment and intervention would endanger Ms. Chrisjohn’s life.

[49] At trial, the parties joined issue on both components of the mens rea requirement. The appellant maintained that his conduct was consistent with that of a reasonably prudent police officer and that it was not objectively foreseeable that the failure to provide Ms. Chrisjohn with medical attention would endanger her life.

(iv) Grounds of appeal on the failure to provide necessaries charge

(a) Did the trial judge err in failing to consider the “lawful excuse” defence in s. 215(2)?

[50] Section 215(2) provides a “lawful excuse” defence to the offences created under s. 215(2). The phrase is not defined in the section. A “lawful excuse” refers to exculpatory circumstances or events which justify an acquittal even if the essential elements of the offence are established: R. v. Holmes, [1998] 1 S.C.R. 914, at p. 948. By way of example, this court has suggested that a true financial inability to provide for a dependant’s needs may, in certain circumstances, constitute a “lawful excuse” defence to a charge of failing to provide the necessaries of life to that dependant: Peterson, at para. 35.

[51] The appellant submits that the trial judge accepted the appellant’s testimony that he did not subjectively perceive that Ms. Chrisjohn required medical attention or intervention. The appellant contends that his subjective belief rendered his conduct “morally innocent” and provided a “lawful excuse” for what would otherwise be an offence under s. 215(2). This argument was not made at trial. Although the court is reluctant to consider arguments on appeal that were not advanced at trial, I will address this submission, as it can be properly considered on this trial record without any prejudice to the Crown.

[52] The scope of the “lawful excuse” defence in s. 215(c) must be interpreted having regard to the nature and purpose of the offences created in that section. The phrase “lawful excuse” cannot be given a meaning which effectively eliminates the liability created by s. 215(2). Parliament chose to impose a duty on police officers to provide the necessaries of life to those in their custody. Parliament also chose to enforce that duty with criminal liability, founded on objectively-based fault criteria. Parliament cannot possibly have intended at the same time that it imposed criminal liability based on objective fault to have provided a “lawful excuse” defence predicated on the absence of subjective fault: see Naglik, at p. 146.

[53] I also reject the description of the appellant’s conduct as “morally innocent”. Subjective fault is not a prerequisite to moral culpability. Moral culpability can arise from conduct, specifically conduct that falls below the penal negligence standard: R. v. Gosset, [1993] 3 S.C.R. 76, at p. 93. This is especially so when the conduct in question endangers life and occurs in the context of a relationship in which the accused has a duty to protect a vulnerable person in his custody from harm. On the trial judge’s findings, the appellant’s conduct was far from “morally innocent”.

(b) The trial judge’s alleged fact-finding errors

[54] The trial judge’s finding that the appellant had the mens rea required for a conviction on the failure to provide necessaries charge turned, to a large extent, on her factual finding that Ms. Chrisjohn’s condition had deteriorated significantly between the time the appellant spoke with EMS Supervisor Hill shortly before 6:00 p.m. and the arrival of the appellant and Ms. Chrisjohn at Tim Hortons at about 6:38 p.m. The trial judge put her finding this way, at para. 110:

Cst. Doering placed considerable reliance on the information and advice he received from Mr. Hill. Cst. Doering was reasonably entitled to rely on what Mr. Hill had to say at the time he said it. But this was not a permanent medical edict. It was a full 45 minutes later that Cst. Doering reached the transfer point, by which time Ms. Chrisjohn’s condition had deteriorated. She was no longer upright in her seat and aggressively moving and yelling. She was prone on the seat, moaning and shaking, and unable to get out of the car on her own. Her condition had changed and it was obvious she was getting worse, not better.

[55] Counsel for the appellant submits the trial judge’s finding that Ms. Chrisjohn’s condition had worsened by the time she reached the Tim Hortons was unreasonable and reflects a misapprehension of the relevant evidence. He contends the evidence does not support the conclusion that there were any significant changes in Ms. Chrisjohn’s condition or behaviour. Rather, those changes, some of which the appellant described in his evidence, were identified as typical of a person cycling through the effects of a methamphetamine high. Ms. Chrisjohn had exhibited some of those same changes while in custody at the Petro-Canada station.

[56] Counsel further maintains that the Crown offered no evidence that any of the supposed changes in Ms. Chrisjohn’s condition suggested, much less demonstrated, that her medical condition was actually deteriorating. The Crown called no expert evidence on that issue. Counsel contends that the appellant’s uncontradicted evidence that Ms. Chrisjohn’s behaviour was typical of individuals coming down from a methamphetamine high was “ignored” by the trial judge.

[57] As outlined above, the appellant and the two OPP officers gave evidence about Ms. Chrisjohn’s condition when she arrived at the Tim Hortons. A comparison of the evidence describing her condition at the Tim Hortons with the evidence describing her condition at the Petro-Canada station indicates that Ms. Chrisjohn had gone from responsive and interactive with those around her to largely non-responsive and barely conscious. She had also gone from mobile, if not hyperactive, to being unable to stand or walk on her own.

[58] It was open to the trial judge to find that Ms. Chrisjohn’s level of consciousness and her physical functionality had deteriorated significantly by the time she was at Tim Hortons. It was equally open to the trial judge to find that these changes would have been observed by a reasonable police officer charged with responsibility for Ms. Chrisjohn’s wellbeing while she was in his custody.

[59] Counsel is correct that there was no expert evidence that the changes in Ms. Chrisjohn’s behaviour and physical condition actually reflected a meaningful deterioration in her medical status. In my view, the significant deterioration in Ms. Chrisjohn’s ability to perform basic physical functions such as walking, and her substantially reduced level of consciousness, would suggest to any prudent, reasonable police officer that Ms. Chrisjohn’s medical situation may well be changing for the worse. This conclusion would become all the more compelling to a reasonable, prudent police officer who knew, as the appellant knew, that Ms. Chrisjohn was “very high” and had consumed a dangerous and potentially lethal drug.

[60] In any event, the Crown was not required to prove that Ms. Chrisjohn’s medical condition had actually deteriorated. The question was whether the changes evident in her condition would have caused a reasonably prudent police officer to seek out the advice and assistance of those with the necessary medical training to properly assess the significance of the observed changes and provide any further needed medical response.

[61] The trial judge found as a fact that the changes in Ms. Chrisjohn’s condition required the appellant to revisit the need for medical assistance. As the trial judge pointed out, at paras. 114-15, there were no operational contingencies or other factors that would have interfered with the appellant’s ability to seek out medical advice based on Ms. Chrisjohn’s current condition. In addition, again as the trial judge observed, medical attention did not necessarily mean a trip to the hospital. It could have meant requesting a further assessment by EMS personnel who, unlike the appellant, had medical training.

[62] The trial judge’s conclusion that the changes in Ms. Chrisjohn’s condition by the time she reached Tim Hortons would have compelled a reasonable, prudent police officer, in the appellant’s circumstances, to seek medical assistance for Ms. Chrisjohn was neither unreasonable, nor based on any material misapprehension of the evidence. The trial judge’s factual findings were, however, a clear rejection of the defence position that a prudent, reasonable police officer would have continued to assume that Ms. Chrisjohn was choosing to be uncooperative and could “ride out” the effects of her methamphetamine consumption without medical intervention and without any risk to her life. I see no error in the trial judge’s fact-finding.

(c) The relevance of the evidence the appellant believed Ms. Chrisjohn did not need medical attention[^3]

[63] Counsel for the appellant submits that the trial judge found that the appellant believed that Ms. Chrisjohn did not need medical attention and would recover from the effects of the drugs she had consumed without putting her medical wellbeing at risk. Counsel contends that, while the trial judge accepted this evidence, she did not appreciate its relevance to the fault requirements in s. 215(2). Counsel contends, that although the appellant’s state of mind is not an element of the offence under s. 215(2), it is relevant to both aspects of the fault requirement in s. 215(2).

[64] I agree with counsel’s submission that the appellant’s belief that medical attention was not necessary and that Ms. Chrisjohn’s wellbeing was not at risk were relevant to, but not determinative of, both whether his conduct constituted a marked departure, and whether a reasonable police officer would have been aware of the risk to Ms. Chrisjohn’s wellbeing: R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at paras. 43-47; R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, at paras. 24-34; R. v. Gardner and Fraser, 2021 NSCA 52, 406 C.C.C. (3d) 156, at para. 79. As these authorities make clear, the trier of fact can take into account an accused’s perceptions or beliefs when deciding what the reasonable person in the same circumstances would have perceived or believed.

[65] I do not, however, accept the submission that the trial judge failed to take the appellant’s beliefs into account. Defence counsel, in his closing submissions, made the very argument put before this court. The trial judge, in her reasons, expressly acknowledged the relevance to the fault component of evidence of the appellant’s beliefs and state of mind (Reasons, at para. 97). She had earlier in her reasons referred to Ibrahim at length. Ultimately, the trial judge was satisfied, despite the appellant’s state of mind, that the Crown had proved the requisite fault element. She said, at para. 98:

Cst. Doering’s state of mind does not exculpate. Rather in failing to advert to the need for medical treatment, he turned a blind eye to risks that would have been apparent to a reasonably prudent police officer.

(d) The relevance of the appellant’s evidence about his prior experience with intoxicated prisoners[^4]

[66] The appellant testified that he regularly arrested persons who were very high on different substances, including methamphetamine. Based on his experiences, those prisoners followed a typical pattern when “coming down” from the effects of the drugs they had consumed. That process could take some time and did not require any medical intervention. According to the appellant, Ms. Chrisjohn’s conduct fit that profile.

[67] The appellant testified he had never taken a prisoner to the hospital solely because that prisoner was high on drugs. It never occurred to him that Ms. Chrisjohn might be in any kind of medical distress.

[68] Counsel for the appellant in his factum submitted that the appellant’s prior experiences with prisoners under the influence of various narcotics provided “a basis for Cst. Doering and any reasonable police officer to reasonably believe there was no need for hospitalization” (emphasis in original). On this submission, the reasonable, prudent police officer is imbued with the appellant’s personal prior experiences in dealing with prisoners like Ms. Chrisjohn. The interveners, the Canadian Police Association (“CPA”), the Toronto Police Association (“TPA”), and the Police Association of Ontario (“POA”), support this argument.

[69] Before turning to the legal legitimacy of this submission, I will address three forensic problems with this argument. First, evidence that the appellant always acted in a certain way when dealing with intoxicated prisoners is not evidence that his conduct conformed with any standard. In the absence of evidence that the appellant’s habitual practices complied with accepted police practice and policies, I fail to see how evidence from the appellant that he always responded to intoxicated prisoners in a particular way supported the claim that in doing so, he acted as a prudent, reasonable police officer would act.

[70] Second, the appellant’s description of his prior experiences with intoxicated prisoners offers no support for a finding that his practice complied with the duty imposed on the appellant by s. 215(1)(c). There is no way of knowing how many of the prisoners in the appellant’s custody were in fact in need of medical attention and whose lives were endangered by the appellant’s failure to provide that assistance. Conduct that may itself breach the duty imposed by s. 215(1)(c) cannot be said to be consistent with the conduct of a reasonable, prudent police officer merely because the appellant routinely followed that course of conduct.

[71] Third, the appellant’s description of his prior experiences speaks only to his perception of the need to take intoxicated prisoners to the hospital. I do not understand the appellant to have suggested that, based on his prior experiences, no medical attention of any kind was necessary unless a prisoner was “unconscious” or “completely limp”. Clearly, the appellant had looked for medical advice from Supervisor Hill at the Petro-Canada station when Ms. Chrisjohn was far from unconscious. The appellant’s potential liability on the failure to provide necessaries charge did not turn exclusively on whether he should have taken Ms. Chrisjohn to the hospital. The Crown had to show that the failure to provide medical assistance or intervention of any kind after Ms. Chrisjohn’s condition had deteriorated constituted an offence under s. 215(2)(b).

[72] Turning to the legal viability of the argument, counsel’s submission that the fault component should be personalized to reflect the accused’s own experiences runs aground on the majority opinion in R. v. Creighton, [1993] 3 S.C.R. 3, at pp. 58-61, 67-74. As pointed out in Creighton, crimes premised on penal negligence seek to impose a common minimum behavioural standard applicable in the circumstances to anyone with the capacity to comply with that standard. McLachlin J., as she then was, for the majority, said, at pp. 67-69:

These considerations suggest that the practical as well as the theoretical concerns of the criminal law in the field of penal negligence are best served by insisting on a uniform standard of conduct for everyone, subject to cases where the accused was not capable of recognizing and avoiding the risk attendant on the activity in question. Beyond this, the standard should not be individualized by reason of the peculiar personal circumstances of the accused. The purpose of Parliament in creating an offence of objective foresight, as in manslaughter, is to stipulate a minimum standard which people engaged in the activity in question are expected to meet. If the standard is lowered by reason of the lack of experience, education, or the presence of some other “personal characteristic’” of the accused the minimum standard which the law imposes on those engaging in the activity in question will be eroded. The objective test inevitably is transformed into a subjective test…

… As I see it, the recognition that those lacking in the capacity to perceive the risk should be exempted from criminal conviction and punishment does not entail the conclusion that the standard of care must be adjusted to take into account the accused’s experience and education. The only actor-oriented question apposite to mens rea in these cases is whether the accused was capable of appreciating the risk, had he or she put her mind to it.

[73] The position advanced by the appellant and the interveners demonstrates the wisdom of Creighton. On the appellant’s approach, a police officer’s evidence about his personal on-the-job experience would effectively shape the standard of care expected of the hypothetical reasonable, prudent police officer. The content of that duty would vary from officer-to-officer to reflect those personal experiences. Ironically, on the appellant’s argument, less experienced police officers, who could not fall back on a history of doing things a certain way, might well be held to a higher standard than their more experienced fellow officers.

[74] The PAO submits that the judgment of the Supreme Court of Canada in R. v. Javanmardi, 2019 SCC 54, [2019] 4 S.C.R. 3, released after the trial judge’s reasons, has application to this case. In Javanmardi, the majority held, at para. 37, that if the nature of the activity (e.g. naturopathy) requires special training and skill, an accused who undertakes that activity without the requisite training and skill may be held penally negligent on that basis. Abella J. said, at para. 37:

An accused undertaking such an activity may be found to have breached the reasonable person standard if he or she is not qualified to provide the special care that the activity requires, or negligently failed to exercise such care while engaged in the activity. In this way, the law maintains a “constant minimum standard” for every person who engages in an activity requiring special care and skill: they must be both qualified and exercise the special care that the activity requires. [Emphasis in original.]

[75] It was no part of the Crown’s case that a determination that Ms. Chrisjohn required medical attention required “special training or skill”. It was acknowledged by all that the appellant had no medical expertise and was not expected to exercise any medical expertise. Nor did the Crown argue that the appellant was in any way unqualified to have custody of Ms. Chrisjohn and exercise the duties associated with that custody. Javanmardi has no application to this case.

[76] The appellant’s experiences with other intoxicated prisoners are not part of the circumstances relating to his interaction with Ms. Chrisjohn. Consistent with Creighton, those experiences cannot be attributed to the hypothetical reasonable, prudent police officer without subjectivizing what is intended to be an objective standard by which fault is measured. The appellant’s experiences with other intoxicated prisoners are not relevant to a consideration of how the hypothetical reasonable, prudent police officer would have reacted in the circumstances presented to the appellant.

[77] I do not, however, suggest that the evidence of the appellant’s prior experiences was irrelevant to the fault inquiry required under s. 215(2). As noted above (paras. 63-65), the appellant’s state of mind with respect to both Ms. Chrisjohn’s need for medical attention, and the risk posed to her wellbeing by failing to provide medical attention, had potential evidentiary value in relation to the proof of the required mens rea. Evidence of the appellant’s prior experiences provided the basis for his beliefs. It was important that the appellant demonstrate why he believed what he did about Ms. Chrisjohn’s need for medical intervention. The appellant’s evidence about his prior experiences with similar prisoners supported his testimony that he believed Ms. Chrisjohn did not need medical attention and was not at risk.

(e) Was the Crown required to call additional expert evidence to establish the applicable standard of care?[^5]

[78] At trial, the Crown called Inspector Brian Price of the LPS to give expert evidence concerning the policies and practices of the LPS relating to arrest and custody. The defence agreed that Inspector Price was qualified to give that evidence. Inspector Price was not asked to offer any opinion as to what the reasonable, prudent police officer in the position of the appellant would have done. Nor did Inspector Price opine on the reasonableness of the appellant’s decision to not seek further medical assistance for Ms. Chrisjohn.

[79] Inspector Price testified that he was not aware of any specific training provided to police officers in the LPS in respect of the treatment of prisoners who are under the influence of drugs. Inspector Price identified one specific LPS policy dealing with impaired prisoners. That policy said, in part:

When a medical condition of a prisoner is in doubt (e.g. under the severe influence of drugs/alcohol), immediately arrange transport for the prisoner to the nearest hospital.

[80] Inspector Price also testified that officers were required to “monitor” intoxicated detainees in their custody. If an intoxicated detainee appeared to be “going downhill quickly”, the officer should seek medical attention.

[81] In cross-examination, Inspector Price acknowledged that there were between 1,500 and 2,000 pages of LPS policies and that not even he was familiar with all of them. Inspector Price agreed that, despite the unqualified wording in some policies, all policies were subject to a built-in discretion, which contemplated officers acting in accordance with the dictates of the specific circumstance. That discretion applied to situations in which officers were required to determine whether medical assistance should be sought for a detainee.

[82] Apart from Inspector Price’s evidence, neither the Crown nor the defence called any expert evidence on the standard of care issues. Counsel for the appellant at trial did not argue that the Crown was required to lead any additional evidence on the applicable standard of care, but instead argued that Inspector Price’s evidence supported the defence position that the appellant’s conduct was reasonable in the circumstances.

[83] The interveners submit that additional expert evidence was essential in this case if the Crown was to prove that the appellant’s conduct fell below the standard of a reasonably prudent police officer. The interveners submit that evidence from a qualified expert going both to the content of the standard of care and the appellant’s compliance or non-compliance with that standard was required.

[84] As I understand the appellant’s argument, it does not go as far as the interveners’ submissions. The appellant contends that the absence of any expert evidence from the Crown suggesting the appellant’s routine practices were unreasonable supported the reasonableness of those practices and the appellant’s belief, based on his experiences, that Ms. Chrisjohn did not need medical attention.

[85] No one suggests that the kind of expert evidence contemplated by the interveners would not have been admissible. The interveners’ argument is essentially aimed at the sufficiency of the evidence actually offered by the Crown. They contend, that without the expert evidence described by the interveners, the trial judge could not make an informed assessment of what a reasonable, prudent police officer would have done in the circumstances faced by the appellant.

[86] In cases in which the reasonableness of conduct is an issue, expert evidence going to the applicable standard of care and whether conduct complies with that standard, is often admissible and is sometimes essential: see Meady v. Greyhound Canada Transportation Corp., 2015 ONCA 6, at paras. 35-39; Roy v. British Columbia (Attorney General), 2005 BCCA 88, at paras. 36-39, leave to appeal refused, [2005] S.C.C.A. No. 188; R. v. Gardner and Fraser, 2021 NSCA 52, at paras. 69-71.

[87] In determining whether expert evidence is needed, it is important to focus on the exact issue the trial judge has to determine. In this case, the appellant’s liability did not turn on any medical judgment or other form of expertise. The appellant was required to use his common sense and judgment when dealing with intoxicated prisoners and, specifically, in determining whether those prisoners needed medical attention. As the appellant acknowledged, when medical issues arose, he looked to EMS personnel, especially supervisors, for direction. As the appellant put it, “[t]hey are medical experts compared to us. We have no medical background”. In essence, the trial judge had to decide whether a reasonable, prudent police officer, using his common sense and judgment, would have sought medical advice in respect of Ms. Chrisjohn’s condition from someone with the medical expertise the appellant did not have.

[88] In my view, this inquiry involved non-technical matters within the knowledge and experience of the reasonable layperson, especially a layperson armed with evidence of the relevant police practices and policies: Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497, at paras. 47-48; Meady v. Greyhound Canada Transportation Corp., 2015 ONCA 6, at paras. 47-50.

[89] There was ample evidence upon which the trial judge could reasonably determine what should be expected of the reasonably prudent police officer in the circumstances. That evidence included Inspector Price’s testimony. He spoke to both LPS policies and the duty imposed on LPS officers to monitor the ongoing condition of intoxicated detainees. The trial judge appreciated that the policy was not determinative of the standard of care. She was, however, satisfied that a reasonably prudent police officer would have been aware of the policy and its application to Ms. Chrisjohn.

[90] The trial judge also had the evidence of the appellant. In that evidence, the appellant acknowledged that he used his common sense and judgment when deciding whether detainees need medical care. He had no particular expertise. The appellant also testified that he knew he should look to EMS personnel, especially supervisors, for advice and direction in respect of detainees who had medical issues. The appellant had done exactly that at the Petro-Canada station.

[91] The trial judge also had the evidence of the changes in Ms. Chrisjohn’s condition between the time the appellant sought the advice of Supervisor Hill and the arrival at Tim Hortons with Ms. Chrisjohn. On the trial judge’s findings, those changes showed an obvious deterioration in Ms. Chrisjohn’s condition.

[92] Lastly, the trial judge was entitled to take into account, as a matter of common knowledge, that the ingestion of drugs like methamphetamine can be very harmful, if not fatal.

[93] The cumulative effect of the evidence outlined above provided a basis upon which the trial judge could conclude that a reasonably prudent police officer would have appreciated the need for medical advice and assistance at some point before transferring Ms. Chrisjohn to the OPP. That same reasonable, prudent police officer would also have been aware that Ms. Chrisjohn’s life was endangered by the failure to seek medical advice and intervention.

(v) Conclusion on the failure to provide necessaries charge

[94] I see no error in the trial judge’s analysis of the appellant’s liability on the failure to provide necessaries charge. I will address the appropriate disposition on that charge after I consider the grounds of appeal aimed specifically at the conviction on the criminal negligence causing death charge.

B. The criminal negligence causing death charge

(i) The relevant evidence

[95] The criminal negligence allegation focused on the two statements allegedly made by the appellant to Constables Billing and McKillop at the Tim Hortons. The Crown alleged that the appellant falsely indicated that Ms. Chrisjohn had been assessed by EMS personnel and that her condition had not changed while she was in his custody. The evidence of the actions of the OPP officers who had custody of Ms. Chrisjohn from the time of her transfer to OPP custody at the Tim Hortons until the attendance of the EMS personnel at the OPP station, almost an hour later, is also germane to the criminal negligence causing death charge.

[96] The appellant told Constables Billing and McKillop that Ms. Chrisjohn had been running in and out of traffic and was high on methamphetamine. He also told them that she had a tendency to be violent toward the police.

[97] According to Constable Billing, the appellant indicated that Ms. Chrisjohn had been medically cleared. Constable Billing understood this to mean that she did not require hospitalization and was “fine being in police custody”. Constable Billing could not recall whether the appellant referred specifically to EMS as having examined Ms. Chrisjohn, but she assumed the appellant was referring to an assessment by EMS personnel.

[98] Constable McKillop recalled the appellant indicating that Ms. Chrisjohn had been assessed by the EMS and did not need to be taken to the hospital. Constable McKillop could not recall the appellant’s exact words.

[99] In his testimony, the appellant acknowledged that he told the OPP officers that Ms. Chrisjohn had been “looked at” by EMS and that EMS advised there were no immediate health concerns, and Ms. Chrisjohn did not have to be taken to the hospital. The appellant testified that when he described EMS as having “looked at” Ms. Chrisjohn, he was referring to Supervisor Hill looking at Ms. Chrisjohn through the window of the police vehicle.

[100] In respect of the second alleged misrepresentation, Constable Billing testified that the appellant told her that Ms. Chrisjohn’s condition at Tim Hortons was “how she was since he had her”. When the appellant made that comment, Ms. Chrisjohn was lying across the backseat of his vehicle moaning. In cross-examination, Constable Billing testified she could not be sure the appellant had said Ms. Chrisjohn had been behaving the same way the entire time she was in his custody. Constable Billing also agreed that when the appellant referred to Ms. Chrisjohn’s behaviour, he may have been indicating that Ms. Chrisjohn was acting like a person under the influence of drugs throughout the time she had been in his custody.

[101] Constable McKillop did not give any evidence about anything the appellant said about Ms. Chrisjohn’s condition changing while she was in his custody. Constable McKillop was not as involved in the conversations with the appellant as Constable Billing.

[102] The appellant denied telling Constable Billing that Ms. Chrisjohn was in the same condition throughout the time she was in his custody. The appellant acknowledged there were changes between the appellant’s condition at the Petro-Canada station and her condition at the Tim Hortons. He testified, however, that all of her behaviour was consistent with someone who was coming down from the effects of methamphetamine consumption.

[103] When Constable Billing and Constable McKillop assumed custody of Ms. Chrisjohn, they were responsible for monitoring her condition and providing medical assistance if that assistance was necessary to protect Ms. Chrisjohn’s health or safety. Constable Billing agreed that Ms. Chrisjohn’s condition worsened noticeably between the time they left Tim Hortons and the time they arrived at the OPP station. Nonetheless, both Constable Billing and Constable McKillop testified they did not believe Ms. Chrisjohn needed medical attention when they removed her from their vehicle and took her into the OPP police station. By that time (7:11 p.m.), Ms. Chrisjohn was, according to the Agreed Statement of Facts, in critical condition. Constables Billing and McKillop had to physically remove Ms. Chrisjohn from the cruiser and effectively carry her into the station. Ms. Chrisjohn’s colour was “off” according to Constable McKillop.

[104] Ms. Chrisjohn was placed in a cell under constant supervision. She was not moving and was unresponsive. At 7:28 p.m., the OPP decided to call EMS. Even then, however, the OPP did not consider the situation to be a medical emergency. Constable McKillop told EMS he had a prisoner who had consumed methamphetamine and had to be “checked out” to be sure it was appropriate to keep her in the cells. EMS were told there was “no rush” and no need for “lights or sirens”. During the communication with EMS, the OPP advised that Ms. Chrisjohn was awake and breathing normally.

[105] EMS arrived at the OPP station at 7:36 p.m. Ms. Chrisjohn was unconscious in the cell. Her heartrate was 171 beats per minute and her eyes were opened and dry, indicating she had not been blinking. Ms. Chrisjohn was assessed at a three on the Glasgow Coma Scale. Three is the lowest possible measurement on that scale. EMS rushed Ms. Chrisjohn to the hospital, arriving at 7:58 p.m. She died less than an hour later.

[106] In re-examination, Constable Billing was asked why she continued to believe Ms. Chrisjohn was not in need of medical intervention even after she and Constable McKillop had to carry Ms. Chrisjohn out of the OPP vehicle and into the station. Constable Billing gave two reasons. First, she had been told by the appellant Ms. Chrisjohn had been cleared by EMS. Second, in her judgment, Ms. Chrisjohn was being deliberately uncooperative with her and Constable McKillop.

(ii) The trial judge’s findings

[107] The trial judge recognized that the appellant had a duty to convey accurate information about Ms. Chrisjohn’s condition to the OPP officers assuming responsibility for her custody. In strongly worded findings (paras. 122-23), the trial judge found that the appellant had deliberately misled the OPP into believing Ms. Chrisjohn had been assessed by EMS, and that her condition had not changed while she was in the appellant’s custody. The trial judge was satisfied both statements were false and misled the OPP officers.

[108] The trial judge further held, at para. 124, that the appellant’s lies to the OPP officers created a risk that those officers would not appreciate the gravity of Ms. Chrisjohn’s condition and that their failure to appreciate the seriousness of the situation would delay treatment. Any delay in providing medical assistance to Ms. Chrisjohn “increased the risk to Ms. Chrisjohn’s life”. On the trial judge’s analysis, the deliberately false statements made by the appellant both represented a wanton and reckless disregard for Ms. Chrisjohn’s life or safety, and demonstrated a marked and substantial departure from the standard of care of a reasonably prudent police officer.

(iii) The elements of the offence of criminal negligence causing death

[109] The Crown was required to prove that:

• the appellant deliberately misled the OPP officers as to Ms. Chrisjohn’s condition at the time of the transfer of custody;
• the appellant’s conduct in deliberately misleading the OPP officers showed a wanton or reckless disregard for the life or safety of Ms. Chrisjohn;
• the appellant’s conduct in deliberately misleading the OPP officers represented a marked and substantial departure from the conduct of a reasonably prudent police officer in circumstances in which the appellant either recognized the obvious risk to Ms. Chrisjohn’s life and chose to proceed, or gave no thought to that risk; and
• by deliberately misleading the OPP about Ms. Chrisjohn’s condition, the appellant caused her death.

[110] The appellant clearly had a duty to provide accurate information to the OPP officers concerning Ms. Chrisjohn’s condition when he transferred her to their custody. On the trial judge’s findings, not only did the appellant fail to perform his duty to provide accurate information, he deliberately misled the OPP officers about Ms. Chrisjohn’s condition. If the finding that the appellant deliberately misled Constables McKillop and Billing stands, there can be no doubt about the proof of the essential elements of the criminal negligence causing death charge other than causation. It cannot be realistically argued that deliberate misrepresentations about Ms. Chrisjohn’s condition to the officers assuming responsibility for her did not demonstrate a wanton or reckless disregard for Ms. Chrisjohn’s life or safety. Equally, it could not realistically be suggested that, in making deliberate misrepresentations about Ms. Chrisjohn’s condition, the appellant’s conduct did not represent a marked and substantial departure from the conduct expected of a reasonable, prudent police officer in the circumstances.

[111] The appellant argues that the trial judge’s finding that the appellant deliberately misled the OPP officers cannot stand. The appellant also takes issue with the causation finding.

(iv) Grounds of appeal on the criminal negligence charge

(a) Can the trial judge’s finding that the appellant deliberately misled the OPP officers stand?

[112] As outlined above, the conviction on the criminal negligence causing death charge rested on the trial judge’s finding that the appellant had deliberately misled Constables Billing and McKillop about Ms. Chrisjohn’s condition by telling them that she had been assessed by EMS, and by telling Constable Billing that Ms. Chrisjohn’s condition had not changed while she was in the appellant’s custody.

[113] I am satisfied that the trial judge’s finding that the appellant deliberately misled the OPP when he indicated Ms. Chrisjohn had been “looked at” by EMS cannot stand. As I will explain, that finding is irreconcilable with the trial judge’s finding that the appellant reasonably believed, based on what he was told by Supervisor Hill, that Ms. Chrisjohn did not need medical attention at the Petro-Canada station.

[114] The trial judge was satisfied the appellant was reasonably entitled to rely on Supervisor Hill’s evaluation of Ms. Chrisjohn’s condition, and specifically his opinion that she did not need to go to the hospital, even though, on the trial judge’s finding, the appellant knew that Supervisor Hill had not actually examined Ms. Chrisjohn.

[115] When the trial judge turned to the evidence of the appellant’s representations to the OPP officers, she determined that the appellant’s statement to the effect that EMS had “looked at” Ms. Chrisjohn would be understood by the OPP officers as an indication that EMS had assessed Ms. Chrisjohn “in some fashion or another” (Reasons, para. 122). I have no difficulty with that finding.

[116] I fail to see, however, how the appellant’s statement to the OPP officers as interpreted by the trial judge could be viewed as deliberately false or misleading. On the appellant’s evidence, which the trial judge accepted, the appellant reasonably believed that Supervisor Hill had assessed Ms. Chrisjohn “in some fashion or another” and concluded she did not need medical attention. Whatever the inadequacies of Supervisor Hill’s assessment, the trial judge concluded the appellant was entitled to accept and rely upon Supervisor Hill’s evaluation of Ms. Chrisjohn’s condition until some time later when that condition significantly deteriorated. On the appellant’s evidence, he passed on his honest and reasonable understanding of Supervisor Hill’s evaluation of Ms. Chrisjohn to Constables McKillop and Billing. The appellant was not asked by Constable McKillop and Billing when the evaluation was made, and he made no representation as to the timing of that evaluation.

[117] In his conversation with the OPP officers, the appellant accurately conveyed to them his understanding of Supervisor Hill’s evaluation of Ms. Chrisjohn’s condition, an evaluation which, I repeat, the trial judge had earlier held the appellant was reasonably entitled to accept and rely upon. In my view, the trial judge’s finding that the appellant deliberately lied to the OPP officers by indicating Ms. Chrisjohn had been assessed by EMS personnel as not requiring medical attention is unreasonable in the face of her contradictory finding that the appellant honestly and reasonably believed, that in Supervisor Hill’s opinion, Ms. Chrisjohn did not need medical care.

[118] The trial judge’s second finding that the appellant lied to Constable Billing when he told her that Ms. Chrisjohn’s condition had not changed while she was in his custody does withstand appellate review. The finding was open on Constable Billing’s evidence and cannot be characterized as unreasonable or based on any misapprehension of the evidence. Constable Billing’s uncertainty in cross-examination as to exactly what was said and the context in which it was said does diminish the probative value of her testimony. It does not, however, render the trial judge’s finding on her evidence unreasonable.

[119] I am satisfied, however, that had the trial judge found only the single misrepresentation, she would not necessarily have reached the same conclusion on the criminal negligence charge. The two misrepresentations found by the trial judge worked in tandem. On the trial judge’s analysis, the first misrepresentation falsely indicated that Ms. Chrisjohn had been cleared by EMS, and the second misrepresentation falsely indicated there had been no change in Ms. Chrisjohn’s condition since she had been cleared by EMS. The Crown’s case on the criminal negligence causing death charge loses considerable force when the alleged misrepresentation as to the assessment by EMS is removed from the evidentiary mix. I cannot say that a trial judge would necessarily find that the appellant deliberately misrepresented Ms. Chrisjohn’s condition based only on Constable Billing’s evidence to the effect that the appellant told her that Ms. Chrisjohn had been in the same condition throughout the time he had custody of her.

[120] Were the trial judge’s misapprehension of the evidence in the course of his analysis of the criminal negligence causing death charge the only error, a new trial would be necessary on that charge. I turn next to the alleged causation error.

(b) Did the trial judge err in finding that the appellant’s criminally negligent conduct caused Ms. Chrisjohn’s death?

(i) The trial proceedings

[121] Ms. Chrisjohn died of heart failure caused by methamphetamine toxicity. Four admissions found in the Agreed Statement of Facts are germane to the causation issue:

• Ms. Chrisjohn required medical treatment and intervention by the time she reached the Tim Hortons (para. 6);
• Her condition had worsened significantly by the time she reached the OPP station. By that time, Ms. Chrisjohn was in “a critical state” and required “urgent medical intervention” (para. 7);
• The sooner the required treatment and intervention was provided, the better the chances that Ms. Chrisjohn would have survived and made a successful recovery (para. 5); and
• The delay in providing medical attention and treatment impacted on Ms. Chrisjohn’s chances of survival, although it is difficult to determine to what degree. Had Ms. Chrisjohn received medical attention and treatment prior to the EMS intervention at the OPP station at about 7:36 p.m., she “might have survived” (para. 8).

[122] In closing argument, counsel for the appellant conceded the Crown had proved “factual” causation in respect of the criminal negligence causing death charge. He submitted, however, that the Crown had failed to prove “the legal causation aspect of causation”. It is not exactly clear what trial counsel meant by “legal causation” as opposed to “factual causation”. His submissions on causation were brief and ultimately counsel appeared to accept that if the other requirements for criminal negligence, including the fault element, were proved beyond a reasonable doubt, legal causation was also made out: see R. v. Shilon, 240 C.C.C. (3d) 401 (Ont. C.A.), at para. 38; R. v. Kippax, 2011 ONCA 766, at para. 27, leave to appeal refused, [2012] S.C.C.A. No. 92.

[123] The trial judge’s reasoning on causation appears at para. 124 of her reasons:

Cst. Doering’s statements created the risk that the OPP would not appreciate the gravity of Ms. Chrisjohn’s condition, and that medical assistance would be even further delayed. This increased the risk to Ms. Chrisjohn’s life and represented a wanton and reckless disregard for her wellbeing. I am satisfied that this conduct was a marked and substantial departure from the standard of care of a reasonably prudent police officer.

[124] At para. 132 of her reasons, the trial judge repeated her finding with a specific reference to causation:

I am further satisfied that, in providing the OPP with erroneous and incomplete information about Ms. Chrisjohn’s condition, Cst. Doering demonstrated a wanton and reckless disregard for Ms. Chrisjohn’s life. His conduct created a risk that medical assistance would be even further delayed. It represented a marked and substantial departure from the standard of care. It was a contributing cause of Ms. Chrisjohn’s death and grounds culpability, under s. 219 of the Code, for criminal negligence causing death.

[125] On the trial judge’s analysis, the appellant’s culpable conduct for the purposes of the criminal negligence charge arose exclusively out of the misrepresentations she found the appellant made to Constables McKillop and Billing. According to the trial judge, those misrepresentations caused a risk that the OPP officers, who had assumed custody of Ms. Chrisjohn, would not appreciate the seriousness of her medical condition. If they did not appreciate the seriousness of her condition, that would inevitably delay the decision by the OPP officers to seek out the required medical assistance. Any delay in providing that assistance increased the risk to Ms. Chrisjohn’s life.

(ii) Arguments on appeal

[126] In their factum, counsel for the appellant, like trial counsel, accepted that the Crown had established factual causation, but argued that the Crown had failed to prove legal causation. Counsel submitted that the appellant’s misrepresentations were a “but for” cause of Ms. Chrisjohn’s death, but were a “trivial” contributory cause and could not be said to amount to a “significant contributing cause” as required under the controlling authorities: see R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at paras. 44-45, 66-71; R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, at paras. 14-22, 60-61; R. v. McDonald, 2017 ONCA 568, 351 C.C.C. (3d) 486, at paras. 138-39.

[127] Counsel also argued that the trial judge failed to consider whether the independent actions of the OPP officers, after they assumed custody of Ms. Chrisjohn, severed any causal link that may have existed between the appellant’s conduct and Ms. Chrisjohn’s death.

[128] During his oral argument, counsel for the appellant reframed his position as going to factual causation. He submitted that the evidence, particularly the Agreed Statement of Facts, showed no contributory link between the appellant’s misrepresentations and Ms. Chrisjohn’s death. Counsel submitted the Crown had to show that but for the delay in providing medical treatment brought about by the appellant’s misrepresentations to the OPP officers, Ms. Chrisjohn had a substantial possibility of survival. Counsel maintained the evidence offered no support for that conclusion.

[129] In her submissions on appeal, Crown counsel took two positions. First, she argued that factual causation had been admitted at trial and that absent some justification, e.g. ineffective assistance of counsel, counsel on appeal could not ignore the concessions and admissions made at trial and argue the appeal as though they had never been made.

[130] Second, Crown counsel argued that the necessary causal connection between the appellant’s misrepresentations to the OPP officers and Ms. Chrisjohn’s death had been established on the trial judge’s findings. The Crown submitted the trial judge found the appellant’s misrepresentations about Ms. Chrisjohn’s condition delayed the OPP in providing necessary medical attention and treatment, thereby effectively depriving Ms. Chrisjohn of her best, if not her only, chance of survival. Those findings, argues the Crown, provide a basis for holding that the appellant’s misrepresentations were a significant contributing cause in Ms. Chrisjohn’s death.

[131] Crown counsel acknowledges that the trial judge referred only to the appellant’s conduct as a “contributing cause” in her reasons. Counsel submits, however, that a review of the trial judge’s dialogue with counsel during closing argument makes it clear that she appreciated that the Crown had to establish that the appellant’s acts were a “significant contributing cause” in Ms. Chrisjohn’s death: see R. v. Talbot, 2007 ONCA 81, 217 C.C.C. (3d) 415, at paras. 79-82.

[132] I agree with Crown counsel that counsel on appeal cannot resile from concessions and admissions made on behalf of the appellant at trial without first satisfying the court that the interests of justice require that counsel be permitted to advance a contradictory position on appeal. Initially, I was of the view that counsel should not be allowed to argue that factual causation was not made out, given the concession to the contrary at trial. However, after further review, I am persuaded that the apparent contradiction between the position advanced on behalf of the appellant at trial and the position advanced in oral argument on appeal is largely semantical and ultimately of no consequence to the substance of the causation argument.

[133] The terms factual causation and legal (or imputable) causation are commonly used as analytical tools when addressing the causal relationship between the conduct of an accused and the occurrence of the event in issue. The concepts are not elements of an offence charged, but rather provide a framework in which the court may consider and analyze the causal relationship between the actions of the accused and the event in issue with a view to determining both the nature of that relationship, if any, and whether the relationship justifies the imposition of criminal liability for the event in issue.

[134] Factual causation is concerned with the mechanical, scientific or medical cause of a certain event. A determination of whether “A” caused “B” in the factual sense is usually made by asking whether “B” would have occurred “but for” the existence of “A”. There may be many factual or “but for” causes of a specific event, all of which may contribute in different ways, and to a greater or lesser extent, to the occurrence of the event in issue. Factual causation alone does not justify the imposition of criminal liability: R. v. Maybin, 2012 SCC 24, at para. 15.

[135] Legal or imputable causation refers to conduct which is sufficiently connected to the occurrence of the event in issue to justify imposing criminal liability for the occurrence of that event. Legal causation requires a qualitative assessment of the connection between “A” and “B”. The connection must be more than a mere “but for” connection. “A” will be said to be a legal cause of “B” only if “A” is a significant contributing cause of “B”. An assessment of whether a causal connection between an accused’s acts and a particular consequence is sufficient to impute criminal liability for that consequence will engage a variety of considerations depending on the circumstances of the case. Some fact situations tend to repeat themselves. For example, the “intervening act” doctrine is one mechanism devised by the criminal law to limit the scope of criminal responsibility for consequences even where those consequences would not have occurred but for the actions of the accused. In the end, designating a “but for” cause as a legal or imputable cause turns on a normative evaluation. That evaluation reflects the common sense and moral instincts of the trier of fact: see R. v. Maybin, 2012 SCC 24, at paras. 16-17, 60-61; Dennis Baker, Textbook of Criminal Law, 4th ed. (London, U.K.: Sweet & Maxwell/Thomas Reuters, 2015), at pp. 304-311; Michael Plaxton, Sovereignty, Restraint, and Guidance: Canadian Criminal Law in the 21st Century (Toronto: Irwin Law Inc., 2019), at p. 218; Don Stuart, Canadian Criminal Law: A Treatise, 7th ed. (Toronto: Carswell, 2014), at pp. 151-58.

[136] Some factual causes are legal causes and some are not: see R. v. Maybin, 2012 SCC 24, at para. 16. All legal or imputable causes are factual causes. Ultimately, liability turns on whether the Crown can prove that the accused’s conduct amounts to a “significant contributing cause” of the event in issue: see R. v. Talbot, 2007 ONCA 81, at paras. 79-82; R. v. Maybin, 2012 SCC 24, at paras. 60-61.

[137] The causation argument advanced at trial and both causation arguments made on appeal come down to the same ultimate question – did the Crown prove beyond a reasonable doubt that the appellant’s actions were a “significant contributing cause” of Ms. Chrisjohn’s death? Counsel’s recharacterization of the argument as going to factual rather than legal causation did not alter the substance of the argument, or the ultimate question to be determined when addressing causation. The different position taken by counsel in oral argument amounted to a claim that the Crown’s case had fallen even further short of proving that the appellant’s conduct was a “significant contributing cause” of Ms. Chrisjohn’s death than counsel had initially argued.

[138] The merits of the causation argument could be fully tested by reference to the “significant contributing cause” standard. If the appellant’s conduct met that standard, it clearly met the “but for” requirement. If the appellant’s conduct did not amount to a significant contributing cause, the Crown had failed to prove causation regardless of whether the conduct did or did not amount to a “but for” cause.

[139] A consideration of the merits of the appellant’s submission on causation begins by focusing on the exact finding made by the trial judge in support of her conclusion that the appellant caused Ms. Chrisjohn’s death. The trial judge did not find that the appellant’s failure to do his duty and obtain medical assistance for Ms. Chrisjohn while she was in his custody caused her death. The trial judge’s causation finding, for the purposes of the criminal negligence causing death charge, is more circumspect and is based exclusively on the appellant’s misrepresentations to the OPP officers and the impact of those misrepresentations on the OPP officers’ conduct and the ultimate timing of the medical assistance to Ms. Chrisjohn provided by the OPP.

[140] In addition, with the exception of the conclusory statement describing the appellant’s actions as a “contributing cause of Ms. Chrisjohn’s death”, the trial judge’s reasons focus exclusively on the risks created by the appellant’s misrepresentations and not on whether those misrepresentations played a significant role in causing Ms. Chrisjohn’s death. On her findings, those misrepresentations created a risk that the OPP would delay seeking medical attention for Ms. Chrisjohn. If that delay occurred, it would increase the risk to Ms. Chrisjohn’s life. Nowhere does the trial judge determine whether, or to what extent, the OPP were in fact delayed in seeking medical attention for Ms. Chrisjohn because of the appellant’s misrepresentations. Nor does the trial judge attempt to quantify in any way the risk flowing from whatever delay may have been caused by the appellant.

[141] It is understandable that the trial judge did not go beyond a finding that the misrepresentations created a risk of delay in obtaining the necessary medical treatment. The insistence of the OPP officers who testified that they did not view Ms. Chrisjohn as in need of medical attention, even after her condition had deteriorated significantly in their custody and she was lying unconscious in her cell, strongly suggests that the decision made by the OPP to not seek urgent medical assistance had little to do with anything the appellant may have said to them at Tim Hortons.

[142] The absence, in the trial judge’s reasons, of any quantification of the risk that may have been created as a result of any delay in Ms. Chrisjohn’s treatment is also understandable in light of paras. 5 and 8 of the Agreed Statement of Facts. Those paragraphs indicate that delay in obtaining medical treatment would negatively impact on Ms. Chrisjohn’s chances of survival. However, it could only be said that had she received medical treatment prior to the arrival of the EMS at the OPP station, she “might have survived”.

[143] Causation in tort law has been extended in narrow circumstances to conduct which does not actually cause the tortious harm, but materially contributes to the risk of that harm occurring: Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 46; Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, at paras. 24-25; Donleavy v. Ultramar Ltd., 2019 ONCA 687, at para. 62. No such extension has been made to criminal causation. As observed by Arbour J. in R. v. Nette, 2001 SCC 78, at para. 49, concepts developed in respect of causation in the law of tort are of limited assistance in the criminal law. The policy considerations are very different. In criminal law, causing a risk of death cannot be equated with causing death.

[144] In summary, the trial judge’s causation findings come down to this:

• the appellant’s misrepresentations may have caused some unspecified delay in the OPP seeking medical assistance for Ms. Chrisjohn; and
• any delay in providing medical assistance, which may have occurred as a result of the appellant’s misrepresentations, increased, to some unknown degree, the risk that Ms. Chrisjohn would not survive.

[145] In my view, those findings do not permit the conclusion that the Crown had proved beyond a reasonable doubt that the appellant’s misrepresentations were a significant contributing cause of Ms. Chrisjohn’s death.

[146] As I would hold that the trial judge’s findings cannot support the conclusion that the appellant’s misrepresentations to the OPP were a significant contributing cause of Ms. Chrisjohn’s death, I need not consider the appellant’s argument that the conduct of the OPP after they took custody of Ms. Chrisjohn severed any potential causation link between the appellant’s actions and Ms. Chrisjohn’s death.

IV Conclusion

[147] I would allow the appeal on the criminal negligence causing death charge, quash the conviction and enter an acquittal. I would set aside the conditional stay on the failure to provide necessaries charge. As the appellant had a full opportunity to challenge the Crown’s case on that charge and the trial judge’s reasons for finding the appellant guilty on that charge are unassailable, I would maintain the finding of guilt on that charge.

[148] The sentence imposed on the criminal negligence charge is set aside. The appellant must be sentenced on the failure to provide necessaries charge. Counsel should arrange a conference call with me to discuss matters relating to sentencing, including the appropriate forum in which the sentencing should occur.

Released: “July 28, 2022 JMF”

“Doherty J.A.”

“I agree Fairburn A.C.J.O.”

“I agree David M. Paciocco J.A.”

[^1]: Ms. Chrisjohn is an Indigenous woman. It was not argued, either at trial or on appeal, that Ms. Chrisjohn’s Indigeneity played any overt role in the relevant events. It is, however, important to acknowledge her Indigenous status, as did the trial judge: see Reasons, at para. 129. The absence of further discussion in this decision about Ms. Chrisjohn’s Indigeneity should not be taken as a failure to recognize the systemic institutional biases against Indigenous persons within the criminal justice system. [^2]: The times are not necessarily exact to the minute but are very close. [^3]: This same argument has application to the mens rea component of the criminal negligence causing death charge. [^4]: This argument also has application to the mens rea component of the criminal negligence causing death charge. [^5]: This argument also has application to the criminal negligence charge.