R. v. Naglik, [1993] 3 S.C.R. 122

Christine Naglik Appellant

v.

Her Majesty The Queen Respondent

and between

Her Majesty The Queen Appellant

v.

Christine Naglik Respondent

and

The Attorney General of Canada,

The Attorney General of Quebec and

The Attorney General for Alberta Interveners

Indexed as: R. v. Naglik

File Nos.: 22490, 22636.

1993: April 5; 1993: September 9.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

Constitutional law -- Charter of Rights -- Fundamental justice -- Mens rea -- Failure to provide necessaries -- Accused convicted of failing to provide necessaries of life to infant son -- Whether objective standard of conduct applicable -- Whether objective standard violates s. 7 of Canadian Charter of Rights and Freedoms -- Criminal Code, R.S.C., 1985, c. C-46, s. 215.

Criminal law -- Failure to provide necessaries -- Mens rea -- Accused convicted of failing to provide necessaries of life to infant son -- Whether objective standard of conduct applicable -- Whether objective standard violates s. 7 of Canadian Charter of Rights and Freedoms -- Criminal Code, R.S.C., 1985, c. C-46, s. 215.

Criminal law -- Trial -- Charge to jury -- Jury asking whether they had "to agree on guilty or not guilty" -- Trial judge answering that they had to be "unanimous one way or the other" -- Whether charge in error.

The appellant and her common law husband were charged with aggravated assault of, and failure to provide necessaries of life to, their infant son. The infant, then aged eleven weeks, had been brought to hospital, where he was found to have sustained a number of serious injuries which had caused permanent damage. The injuries had been sustained over a period of time, estimated by physicians to be four weeks. The appellant gave exculpatory statements concerning her child's condition to police and other authorities which were inconsistent with the medical evidence at trial. She did not testify at trial. Her common law husband did testify, denying any involvement in causing the injuries to the child, and claiming that the appellant was the child's primary caregiver. His counsel obtained permission to comment on the appellant's failure to testify. In his charge to the jury, the trial judge remarked that the appropriate test to be applied to the charge of failure to provide necessaries was an objective one, and that the jury should convict if they were of the view that the parent "knew, or ought to have known, the seriousness of the child's con­dition and that it required medical attention". After the jury had retired, they returned to ask "Do we have to agree on guilty or not guilty?" The trial judge answered that they had to be "unanimous one way or the other". The jury returned verdicts of guilty on both counts for both accused. The Court of Appeal allowed the appellant's appeal from her conviction on the count of failure to provide necessaries and ordered a new trial on that count, on the basis that lack of subjective knowledge or honest belief (whether reasonable or not) were sufficient to negate the mens rea for the offence. The court also found that the comment by counsel for the co‑accused on the appellant's failure to testify was not prohibited by s. 4(6) of the Canada Evidence Act, by the common law or by s. 11(c) of the Canadian Charter of Rights and Freedoms, and the majority of the court found there was no error in the charge to the jury. The appellant appealed the ruling with respect to comment by counsel for a co‑accused and with respect to the charge to the jury. The Crown cross‑appealed the Court of Appeal's ruling with respect to the mens rea for failure to provide necessaries.

Held (L'Heureux‑Dubé and Gonthier JJ. dissenting in part): The appeal and cross‑appeal should be allowed. The appellant's convictions on both counts should be set aside and a new trial ordered on each count.

(1) Mens Rea for Failure to Provide Necessaries

Per La Forest, L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ.: Lamer C.J.'s reasons were agreed with respecting the mens rea for s. 215, except his adoption of the objective test for penal negligence discussed in R. v. Gosset. For the reasons given in R. v. Creighton, in determining what the accused "ought to have known", the trier of fact must determine the conduct of the reasonable person when engaging in the particular activity of the accused in the specific circumstances that prevailed. These circumstances do not include the personal characteristics of the accused, short of characteristics which deprived her of the capacity to appreciate the risk. Youth, inexperience, and lack of education were not suggested on the evidence to deprive the accused of the capacity to appreciate the risk associated with neglecting her child. Therefore, she must be held to the standard of the reasonably prudent person.

Per Lamer C.J. and Sopinka, Iacobucci and Major JJ.: While there is no language in s. 215 such as "ought to have known" indicating that Parliament intended an objective standard of fault, the reference to the failure to perform a "duty" suggests that the accused's conduct in a particular circumstance is to be determined on an objective, or community, standard. The concept of a duty indicates a societal minimum which has been established for conduct: as in the law of civil negligence, a duty would be meaningless if every individual defined its content for him or herself according to his or her subjective beliefs and priorities. The policy goals of the provision support this interpretation. Section 215 is aimed at establishing a uniform minimum level of care to be provided for those to whom it applies, and this can only be achieved if those under the duty are held to a societal, rather than a personal, standard of conduct.

Section 215(2)(a)(ii) makes the failure to fulfil the duty to provide necessaries an offence where "the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently". It thus 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. The Crown must prove beyond a reasonable doubt both that the circumstances listed in subs. (2)(a)(ii) were objectively foreseeable in the circumstances, and that the conduct of the accused represented a marked departure from the standard of care required by those circumstances. This objective basis of criminal liability does not per se violate the Charter. Nor does a conviction under s. 215 carry with it such social stigma and such a severe penalty that a conviction based on penal negligence would violate s. 7 of the Charter. While a conviction under s. 215(2)(a)(ii) will no doubt result in the stigmatization, or even vilification, of the accused, this stigmatization is neither unfairly disproportionate nor unrelated to the culpable conduct of which the accused was found guilty. The lack of a minimum penalty means that the sentencing judge can tailor the sentence to the circumstances of the particular offence and offender, eliminating the danger of the accused being punished to a degree out of proportion to the level of fault actually found to exist. The availability of a defence of lawful excuse in s. 215(2) also serves to prevent the punishment of the morally innocent, even where the accused fails to meet the standard of care imposed by the objective test of penal negligence.

(2) Charge to the Jury

Per Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.: Answers to questions from the jury are extremely important, and carry influence far exceeding instructions given in the main charge. If the jury asks a question about an issue addressed in the main charge, it is clear that they did not understand or remember that part of the main charge, and it is also clear that they must exclusively rely on the answer given by the trial judge to resolve any confusion or debate on the point which may have taken place in the jury room during their deliberations up to that point. The trial judge's answer to the jury's question in this case, which gave the jury the impression that they had no right to disagree, superseded the initial instruction in the minds of the jury. Accordingly, it is possible, if not likely, that the jury members resumed their deliberations with the mistaken impression that they were required to reach a verdict, and that they had misunderstood the earlier reference to their right to disagree. Given this error, a new trial must be ordered on both counts.

Per L'Heureux‑Dubé and Gonthier JJ. (dissenting on this issue): The trial judge's charge to the jury contained no error. There is no suggestion that the response to the jury's query failed to satisfy their concerns or that it raised further doubts as to the previous instructions. The charge must be read as a whole. Here the trial judge had already made it clear to the jury in his initial instructions that they had the right to disagree, and an appellate court should assume that such instructions are understood. The question as formulated by the jury shows that the members were not under any misapprehension about their ability to disagree, but rather that they were uncertain as to whether or not they needed to be unanimous in reaching a verdict. To that specific interrogation, the trial judge gave a full, careful and correct response. There is no further obligation to provide answers to questions that are not asked. Moreover, any doubt was completely laid to rest by the fact that the jurors were individually polled at the request of counsel for the appellant. The principal appeal should be dismissed, the cross-appeal allowed and the conviction restored.

(3) Comment by Counsel for Co-Accused on Accused's Failure to Testify

Per Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.: It is not necessary to address the issue relating to comment by counsel for a co-accused since a new trial is to be held given the disposition regarding the charge to the jury.

Per L'Heureux-Dubé and Gonthier JJ.: There is no rule of law prohibiting such comment, which is permitted as part and parcel of the right of an accused to make full answer and defence.

Cases Cited

By McLachlin J.

Followed: R. v. Gosset, 1993 62 (SCC), [1993] 3 S.C.R. 76; R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3.

By Lamer C.J.

Referred to: R. v. Gosset, 1993 62 (SCC), [1993] 3 S.C.R. 76; R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3; R. v. Wickham; R. v. Ferrara; R. v. Bean (1971), 55 Cr. App. R. 199; De Luna v. United States, 308 F.2d 140 (1962); R. v. Boss (1988), 1988 190 (ON CA), 46 C.C.C. (3d) 523; Vézeau v. The Queen, 1976 7 (SCC), [1977] 2 S.C.R. 277; R. v. Cuff (1989), 1989 182 (NL CA), 49 C.C.C. (3d) 65; R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742; R. v. Lewis (1903), 1903 112 (ON CA), 7 C.C.C. 261; R. v. Steele (1952), 1952 360 (ON CA), 102 C.C.C. 273; R. v. Atikian (1990), 1990 6670 (ON CA), 62 C.C.C. (3d) 357; Latour v. The King, 1950 12 (SCC), [1951] S.C.R. 19; R. v. Leveque, 1992 12857 (MB PC), [1992] 5 W.W.R. 391; R. v. Degg (1981), 1981 3255 (ON CJ), 58 C.C.C. (2d) 387; R. v. Tutton, 1989 103 (SCC), [1989] 1 S.C.R. 1392; R. v. Vaillancourt, 1987 2 (SCC), [1987] 2 S.C.R. 636; R. v. Hundal, 1993 120 (SCC), [1993] 1 S.C.R. 867; R. v. DeSousa, 1992 80 (SCC), [1992] 2 S.C.R. 944.

By L'Heureux‑Dubé J. (dissenting in part)

R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3; Latour v. The King, 1950 12 (SCC), [1951] S.C.R. 19; R. v. DeMarco (1973), 1973 1542 (ON CA), 13 C.C.C. (2d) 369; Laforet v. The Queen, 1979 58 (SCC), [1980] 1 S.C.R. 869; R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742.

Statutes and Regulations Cited

Canada Evidence Act, R.S.C., 1985, c. C‑5, s. 4(6).

Canadian Charter of Rights and Freedoms, ss. 7, 11(c), 24(1).

Criminal Code, R.S.C. 1970, c. C‑34, s. 197.

Criminal Code, R.S.C., 1985, c. C‑46, s. 215.

APPEAL and CROSS‑APPEAL from a judgment of the Ontario Court of Appeal (1991), 1991 2702 (ON CA), 3 O.R. (3d) 385, 65 C.C.C. (3d) 272, 46 O.A.C. 81, setting aside the appellant's conviction on a charge of failure to provide necessaries and upholding her conviction on a charge of aggravated assault. Appeal and cross‑appeal allowed, L'Heureux‑Dubé and Gonthier JJ. dissenting in part.

Irwin Koziebrocki, for the appellant and cross‑respondent Naglik.

David B. Butt, for the respondent and cross‑appellant Her Majesty the Queen.

Ingrid C. Hutton, Q.C., and Kathleen Lyons, for the intervener the Attorney General of Canada.

Jacques Gauvin, for the intervener the Attorney General of Quebec.

Paul C. Bourque, for the intervener the Attorney General for Alberta.

The reasons of Lamer C.J. and Sopinka, Iacobucci and Major JJ. were delivered by

Lamer C.J. --

I. Facts

In 1987, Christine Naglik (to whom I shall refer as "Naglik", as she is both appellant and respondent before this Court) and her common law husband, Peter Geoffrey Pople, were charged with the aggravated assault of, and failure to provide necessaries of life to, their infant son Peter Naglik. The Crown proceeded by indictment. The evidence established that Peter Naglik, then aged 11 weeks, was brought to hospital where he was found to have sustained a number of serious injuries (including a broken collarbone, fractured ribs in at least 15 places, a fractured vertebra, two separate skull fractures, and haemorrhaging of the brain and the retina) which had caused permanent damage. The injuries had been sustained over a period of time, estimated by physicians to be four weeks. Naglik gave exculpatory statements concerning her child's condition to police and other authorities which were inconsistent with the medical evidence at trial. At trial before a judge and jury, Naglik did not testify. Pople did testify, denying any involvement in causing the injuries to the child, and claiming that Naglik was the child's primary caregiver.

Pople's counsel sought, and obtained, permission to comment on the failure of Naglik to testify. The trial judge allowed the comment, warning counsel that it had "better be within the bounds of propriety". In his address, Pople's counsel stated, in part:

The evidence shows that it must have been at least one of them. Now, he has sworn before you that it wasn't him. Your eyes turn to the other and she does not get up and deny it. Her counsel makes an effort to put it on Peter Pople, to accuse him conjecturally, but she doesn't get up or explain anything or accuse anyone.

In response, Naglik's counsel explained s. 11(c) of the Canadian Charter of Rights and Freedoms, and pointed out that she had made exculpatory statements to various persons in authority at the first opportunity, unlike Pople. Naglik's counsel also moved for a mistrial because of the comment, but the motion was denied.

In his charge to the jury, the trial judge remarked that, under s. 215 of the Criminal Code, R.S.C., 1985, c. C-46 (formerly s. 197), the appropri­ate test to be applied was an objective one, and that the jury should convict if they were of the view that the parent "knew, or ought to have known, the seriousness of the child's con­dition and that it required medical attention".

With respect to the need for a unanimous verdict, the trial judge initially charged the jury as follows:

In other words, each and all of you must agree on each verdict that you see fit to return with respect to each accused. It is your right to disagree but I know you will do your best to come to an agreement. This trial has involved considerable time and expense and there have been the lives of people, your lives, the lives of witnesses, have been disrupted and I am certain that no other jury can deal with this matter better than you.

The jury retired at 3:08 p.m. They returned to ask a question at 3:35 p.m., which the trial judge answered, and then again at 4:35 p.m., when they asked "Do we have to agree on guilty or not guilty?" The trial judge answered this question as follows:

Your question is "do we have to agree on guilty or not guilty". Well, the 12 of you have to agree on a verdict of guilty or not guilty with respect to count one and with respect to each accused. In other words, you must be unanimous one way or the other with respect to each accused and with respect to each count. Is that confusing?

In other words, you have to look at count one and you have to consider the evidence with respect to each accused and bring in your verdict one way or the other. The 12 of you have to come to a decision one way or the other.

The jury returned verdicts of guilty on both counts for both Naglik and Pople at 8:08 p.m., and was polled at the request of defence counsel. Both were sentenced to four and one-half years on the first count (aggravated assault) and two years on the second count (failure to provide necessaries), to be served concurrently.

The Ontario Court of Appeal allowed Naglik's appeal from her conviction on the second count (failure to provide necessaries), set aside the conviction, and ordered a new trial on that count: (1991), 1991 2702 (ON CA), 3 O.R. (3d) 385, 65 C.C.C. (3d) 272, 46 O.A.C. 81.

Naglik has appealed the Court of Appeal's ruling with respect to comment by counsel for a co-accused by leave, and with respect to the charge to the jury as of right (based on a dissent by Morden A.C.J.O.). The Attorney General for Ontario has cross-appealed the Court of Appeal's ruling with respect to the mens rea for s. 215 by leave.

II. Relevant Statutory Provisions

Canada Evidence Act, R.S.C., 1985, c. C-5

4....

(6) The failure of the person charged, or of the wife or husband of that person, to testify shall not be made the subject of comment by the judge or by counsel for the prosecution.

Criminal Code, R.S.C., 1985, c. C-46

215. (1) Every one is under a legal duty

(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;

(b) as a married person, to provide necessaries of life to his spouse; and

(c) to provide necessaries of life to a person under his charge if that person

(i) is unable, by reason of detention, age, illness, insanity or other cause, to withdraw himself from that charge, and

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

(2) Every one commits an offence who, being under a legal duty within the mea­ning of subsection (1), fails without lawful excuse, the proof of which lies on him, to perform that duty, if

(a) with respect to a duty imposed by paragraph (1)(a) or (b),

(i) the person to whom the duty is owed is in destitute or necessitous circumstances, or

(ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently; or

(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.

(3) Every one who commits an offence under subsection (2) is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

Canadian Charter of Rights and Freedoms

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Any person charged with an offence has the right

(c) not to be compelled to be a witness in proceedings against that person in respect of that offence;

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

III. Judgments Below

Court of Appeal (1991), 1991 2702 (ON CA), 3 O.R. (3d) 385

A. Morden A.C.J.O. (dissenting in part)

(1) Comment by Co-Accused: Morden A.C.J.O. first dealt with the comment by counsel for the co-accused on Naglik's failure to testify. He noted that the comment was not prohibited by the terms of s. 4(6) of the Canada Evidence Act, and was not prohibited by the common law, citing R. v. Wickham; R. v. Ferrara; R. v. Bean (1971), 55 Cr. App. R. 199 (C.A.).

Turning to s. 11(c) of the Charter, Morden A.C.J.O. noted that Naglik relied on the decision of Wisdom J. in the United States Court of Appeals, Fifth Circuit, in De Luna v. United States, 308 F.2d 140 (1962). In De Luna, the majority of the court held that the Fifth Amendment and federal statutes protected the accused from any form of compulsion to testify, even if that compulsion arose from tactical considerations such as the risk of adverse comment or the existence of "harmful presumptions (and inferences) based on assertion of the right [to silence]" (p. 151). Wisdom J. thus held that the trial judge's implicit participation in allowing counsel for a co-accused to comment on the accused's failure to testify violated the Fifth Amendment. Morden A.C.J.O. rejected De Luna as persuasive in Canada, because of the decision of Cory J.A. (as he then was) in the Ontario Court of Appeal in R. v. Boss (1988), 1988 190 (ON CA), 46 C.C.C. (3d) 523, that "tactical", as opposed to "legal" compulsion to testify was not prohibited by s. 11(c). This holding was in turn based on the decision of this Court in Vézeau v. The Queen, 1976 7 (SCC), [1977] 2 S.C.R. 277, holding that it is open to a jury to draw an adverse inference from the accused's decision not to testify. Morden A.C.J.O. also noted that the applicable U.S. federal statute prohibited any presumption based on the accused's failure to testify, and that after Vézeau the Canadian position was the opposite. He also cited the decision of the Newfoundland Court of Appeal in R. v. Cuff (1989), 1989 182 (NL CA), 49 C.C.C. (3d) 65, in which that court followed Boss.

Morden A.C.J.O. concluded his reasons on this ground by warning that counsel for a co-accused did not have "free rein" in making comments on the accused's failure to testify, and would not be allowed to "encourage the jury to speculate or draw unwarranted inferences" (p. 397).

(2) Instruction to the Jury: Morden A.C.J.O. was of the opinion that, however clear the initial charge had been on the jury's right to disagree and the requirement of unanimity, the jury's question indicated that they were confused about these points. He argued that if the jury truly understood that they had a right to disagree, they would not have needed to ask the question. Furthermore, the answer given by the trial judge went beyond reiterating the need for unanimity to emphasize the obligation to bring in a verdict "one way or the other". Citing Cory J.'s remarks in R. v. W.(D), 1991 93 (SCC), [1991] 1 S.C.R. 742, to the effect that answers to questions from the jury will be more closely scrutinized, Morden A.C.J.O. would have ordered a new trial on this ground.

(3) Definition of "Necessaries": Naglik claimed that the trial judge gave the word "necessaries" a wider definition than the matters referred to in the indictment. Morden A.C.J.O. concluded that any deficiencies in the trial judge's original charge were fully clarified in his recharge. This holding is not a ground of appeal in this Court.

(4) Mens Rea Under s. 215: On the question of the intent required for the failure to provide necessaries of life charge, Morden A.C.J.O. held, at pp. 402-3, that "as a matter of authoritative precedent, this ground of appeal should succeed":

In other words, the offence in question requires actual knowledge of (which would include wilful blindness with respect to) the circumstances which make the failure to perform the duty to provide necessaries an offence. It is an offence which may be committed intentionally or recklessly. It is not an offence of mere negligence, where an honest belief in circumstances which do not require the performance of the duty must be based on reasonable grounds.

He then examined the relevant authorities: R. v. Lewis (1903), 1903 112 (ON CA), 7 C.C.C. 261 (Ont. C.A.); R. v. Steele (1952), 1952 360 (ON CA), 102 C.C.C. 273 (Ont. C.A.); and R. v. Atikian (1990), 1990 6670 (ON CA), 62 C.C.C. (3d) 357 (Ont. C.A.). Morden A.C.J.O. stated that these authorities made it clear that lack of subjective knowledge, or honest belief (whether reasonable or not) were sufficient to negate the mens rea for the offence. However, he also acknowledged weaknesses in the precedential force of Lewis, and that the appellant and respondent in Atikian took the common position that the mens rea for the offence was subjective, so that the point was accepted by the court without argument.

(5) Reverse Onus of s. 215(2): Because Naglik took the position that her lawful excuse was a lack of subjective awareness, a matter in which Morden A.C.J.O. held the Crown bore the burden of proof beyond a reasonable doubt, he did not consider this ground of appeal further.

Given his conclusions on the second ground (the charge to the jury) and fourth ground (mens rea under s. 215), Morden A.C.J.O. would have allowed the appeal, set aside the convictions and ordered a new trial on both counts.

B. Galligan J.A. (McKinlay J.A. concurring)

Galligan J.A. agreed with Morden A.C.J.O. in his disposition of all but the second ground of appeal (the charge to the jury). He noted that the correct instruction was "almost the last thing which the jury heard before retiring to deliberate" (p. 406), and was of the view that the question related only to the need for unanimity in reaching a verdict, to which the trial judge gave a proper answer, and not to the right of jurors to disagree. Therefore, Galligan J.A. was of the view that there was no error in the trial judge's charge to the jury.

Because he agreed with Morden A.C.J.O. with respect to the test under s. 215, Galligan J.A. allowed the appeal and directed a new trial with respect to the conviction on count 2 (failure to provide necessaries), but dismissed the appeal from the conviction on count 1 (aggravated assault).

IV. Issues

Grounds of appeal (1) and (2) were raised in Naglik's appeal; (1) by leave and (2) as of right. Ground (3) was raised in the Attorney General for Ontario's cross-appeal by leave.

(1)(a) Did the Court of Appeal for Ontario err in law in failing to hold that the trial judge erred in law in permitting counsel for the co-accused, Peter Geoffrey Pople, to comment in his address to the jury on the appellant's failure to testify on her own behalf?

(b) Did the Court of Appeal for Ontario err in law in failing to hold that such comment amounted to a breach of the protection afforded to the appellant by ss. 7, 11(c) and 11(d) of the Canadian Charter of Rights and Freedoms in that "she not be compelled to be a witness in proceedings against her in respect of the offence"?

(2)Did the majority of the Court of Appeal for Ontario err in law in holding that the learned trial judge did not err in instructing the jury in such a way that left no room for them to disagree?

(3)Did the Court of Appeal for Ontario err in concluding that the trial judge erred in instructing the jury that on a charge of failing to provide the necessaries of life, the test for determining whether the respondent breached her duty to provide necessaries was to a reasonable person or objective standard?

If so, on the issue of the constitutionality of an objective basis of liability for s. 215, I stated the following constitutional questions by order dated May 1, 1992:

1.Does an objective basis of liability for s. 215 of the Criminal Code of Canada offend s. 7 of the Canadian Charter of Rights and Freedoms?

2.If the answer to question 1 is yes, is an objective basis of liability for s. 215 a reasonable limit on the s. 7 Charter right pursuant to s. 1 of the Charter?

V. Analysis

A. Comment by Counsel for Co-Accused

Given my disposition of the ground of appeal relating to the charge to the jury, a new trial must be held on both counts, and it is not necessary to address the issue relating to comment by counsel for a co-accused on the accused's failure to testify. As Pople has not appealed his conviction, there will be no opportunity for comment by counsel for a co-accused at Naglik's new trial, and the issue will not arise. This question should be examined having regard to the constitutionality of s. 4(6) of the Canada Evidence Act. While s. 4(6) of the Canada Evidence Act may well be open to Charter challenge, in so far as it prevents the trial judge from granting a remedy under s. 24(1) in the form of a remedial comment or instruction where something has occurred which affects the fairness of the trial, there was no challenge to the constitutionality of this aspect of s. 4(6) in this case. Therefore, I will deal only with the charge to the jury, and the constitutionality of objective liability for s. 215. The latter issue must be decided in this appeal because it will clearly be an important part of the trial judge's charge to the jury in the new trial.

B. Charge to the Jury

The common problem raised by the facts of this case is an alleged conflict between an initial instruction and a later instruction in response to a question from the jury. While this Court has stressed the importance of examining charges to the jury as a whole, rather than scrutinizing impugned passages in isolation, I think that it is also important to recognize the oftentimes particular effect of instructions which are given in response to a question from the jury.

It must first be decided whether there was in fact a conflict between the initial charge and the recharge. No one takes issue with the initial charge, which was generous to Naglik in stating the jury's right to disagree, but nevertheless urged the jury to reach a verdict, which had to be unanimous. The Attorney General for Ontario submits that the jury's later question ("Do we have to agree on guilty or not guilty?") indicated not "Do we have to reach a verdict?", but rather "Does the verdict we reach have to be unanimous?" Thus, the Attorney General for Ontario submits that there was no inconsistency between the initial charge and the answer to the question, since it did not address the right to disagree, but only the requirement of unanimity.

Like Morden A.C.J.O., I do not interpret the question and the trial judge's answer so benignly. The jury asked, primarily, "do we have to agree?", and then enumerated the two possible verdicts which had been left to them. I would agree with Morden A.C.J.O. that "if the jury clearly understood that they had the right to disagree, and hence not to return a verdict, they would not have needed to ask the question" (p. 399). If the jury wondered whether a majority vote would be sufficient for a verdict, this reveals that there was disagreement, and that they were having difficulty reaching a unanimous verdict. Therefore, I would conclude that the question from the jury concerned their right to disagree, and that the answer given by the trial judge was clearly within the terms of Latour v. The King, 1950 12 (SCC), [1951] S.C.R. 19, in which Fauteux J. (as he then was) commented (at p. 30): "If one of the jurors could have reasonably understood from this direction -- and it may be open to such construction -- that there was an obligation to agree upon a verdict, the direction would be bad in law."

Given this conflict, the further question arises as to whether the instructions the jury received, as a whole (i.e., including the incorrect answer to the question), were in error. Did the initial correct instruction save the later incorrect instruction?

Morden A.C.J.O. relied upon W.(D.), supra, in which Cory J. noted a difference between instructions given in the main charge and instructions given in response to questions from the jury (at pp. 759-60): "When a jury submits a question, it gives a clear indication of the problem the jury is having with a case. Those questions merit a full, careful and correct response." Answers to questions from the jury are extremely important, and carry influence far exceeding instructions given in the main charge. If the jury asks a question about an issue addressed in the main charge, it is clear that they did not understand or remember that part of the main charge, and it is also clear that they must exclusively rely on the answer given by the trial judge to resolve any confusion or debate on the point which may have taken place in the jury room during their deliberations up to that point.

The trial judge's answer to the jury's question, which gave the jury the impression that they had no right to disagree, superseded the initial instruction in the minds of the jury. Accordingly, it is possible, if not likely, that the jury members resumed their deliberations with the mistaken impression that they were required to reach a verdict, and that they had misunderstood the earlier reference to their right to disagree. Given this error, a new trial must be ordered on both counts.

C. Mens Rea for Section 215

Unlike the first ground of appeal, this issue must be resolved, since it will be a crucial element of the judge's charge to the jury in Naglik's new trial. Before answering the constitutional questions, it is necessary to decide whether s. 215(2)(a)(ii) enacts an offence for which Parliament has indicated that objective fault is appropriate, or whether Parliament has enacted an offence for which subjective fault must be proven.

The Court of Appeal decided this case on the basis of what it considered to be binding precedents (Lewis, Steele and Atikian) holding that subjective fault was required under s. 215. However, as noted above, Morden A.C.J.O. admitted that the precedential force of these prior decisions is less than compelling; indeed, the precise issue was never clearly addressed or decided in Lewis or Steele, and the point was conceded by the Crown in Atikian. A subjective standard of fault for s. 215 has also found support in provincial court decisions.

In R. v. Leveque, 1992 12857 (MB PC), [1992] 5 W.W.R. 391 (Man. Prov. Ct.), the Provincial Court judge relied on the decision of the Ontario Court of Appeal in this appeal, and the decision in R. v. Degg (1981), 1981 3255 (ON CJ), 58 C.C.C. (2d) 387 (Ont. Prov. Ct.), to hold that s. 215 was not what he termed an "absolute liability" offence but rather required the Crown to "prove mens rea . . . beyond a reasonable doubt." The learned judge also cited Wilson J.'s reasons in R. v. Tutton, 1989 103 (SCC), [1989] 1 S.C.R. 1392 (which did not represent the views of a majority of this Court, as the Court was divided on this issue 3:3), and referred to R. v. Vaillancourt, 1987 2 (SCC), [1987] 2 S.C.R. 636, as authority for the proposition that "proof of mens rea [is] a constitutionally mandated element of every criminal offence". I think it is clear that the ratio of Vaillancourt was not that proof of subjective mens rea is required for all criminal offences, which is the import of the Provincial Court judge's reasoning in Leveque. Furthermore, as I discuss below, subsequent decisions of this Court have made it clear that an objective basis of liability for criminal offences can be constitutionally sufficient.

In Degg, the Provincial Court judge cited Lewis and Steele to hold that the wording of s. 215 did not evidence a sufficiently clear Parliamentary intention to enact an offence of what he termed "strict liability".

Because of their limitations, I do not consider any of these decisions persuasive, but would consider the basis of liability under s. 215 afresh and on first principles. With respect to the wording of s. 215, while there is no language in s. 215 such as "ought to have known" indicating that Parliament intended an objective standard of fault, the language of s. 215 referring to the failure to perform a "duty" suggests that the accused's conduct in a particular circumstance is to be determined on an objective, or community, standard. The concept of a duty indicates a societal minimum which has been established for conduct: as in the law of civil negligence, a duty would be meaningless if every individual defined its content for him or herself according to his or her subjective beliefs and priorities. Therefore, the conduct of the accused should be measured against an objective, societal standard to give effect to the concept of "duty" employed by Parliament.

The policy goals of the provision support this interpretation. Section 215 is aimed at establishing a uniform minimum level of care to be provided for those to whom it applies, and this can only be achieved if those under the duty are held to a societal, rather than a personal, standard of conduct. While the section does not purport to prescribe parenting or care-giving techniques, it does serve to set the floor for the provision of necessaries, at the level indicated by, for example, the circumstances described in subs. (2)(a)(ii). The effects of a negligent failure to perform the duty will be as serious as an intentional refusal to perform the duty.

Since s. 215 enacts an offence for which objective fault is appropriate to sustain a conviction, it remains to be considered what the nature of that objective liability is, and, under the terms of the constitutional questions, whether that standard of liability offends s. 7 of the Charter in such a way that it may not be saved by resort to s. 1.

In R. v. Gosset, [1993] 3. S.C.R. 76 (judgment rendered concurrently), I discuss the nature of objective liability in the criminal law, which I term "penal negligence." Briefly, Gosset establishes that penal negligence punishes a marked departure from an objectively reasonable standard of care, in accord with Cory J.'s reasons in R. v. Hundal, 1993 120 (SCC), [1993] 1 S.C.R. 867. However, I also make it clear in Gosset that the reasonableness of the accused's conduct is not to be assessed in the abstract, but with reference to the circumstances of the accused and the offence, to avoid punishing the morally innocent who could not have acted other than they did in the circumstances; specifically, in Gosset I summarize the operation of penal negligence as follows, at pp. 95-96:

Once a marked departure from the standard of care is established, the focus of the investigation under penal negligence must shift, therefore, to the question of whether the accused was capable of recognizing that he or she had fallen short of the standard of care required in the circumstances by the charging section.

Another crucial consideration would be whether it was possible for Naglik to control or compensate for her incapacities in the circumstances. For example, the evidence indicates that the services of a Public Health Nurse were made available to Naglik to help her with the adjustment to caring for the child, given her age, education and lack of experience with children. Naglik apparently resisted these attempts to assist her with the care of the baby. Furthermore, s. 215(2)(a)(ii) covers a failure to provide necessaries in an ongoing relationship and over a period of time, as well as the failure to perform a specific act as part of a discrete transaction, suggesting that the nature of the failure alleged by the Crown would also affect the jury's assessment of Naglik's actions. The test for penal negligence outlined in Gosset will direct the trier of fact's attention to all of these considerations.

What parts of the offence must be objectively foreseeable? In this appeal, Naglik was charged under ss. 197(2)(a)(ii) and 197(3) (now ss. 215(2)(a)(ii) and 215(3)) of the Criminal Code, which make the failure to fulfil the duty to provide necessaries an offence where "the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently". I would hold that s. 215(2)(a)(ii) punishes a marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanent endangerment to the health, of the child. This is not one of the few offences, described in R. v. Creighton, [1993] 3 S.C.R. 3 (judgment rendered concurrently), in which the nature of an underlying act, unlawful in itself, is so risky that it is presumed to involve objective foresight of the risk of the consequences which follow and which give rise to a separate offence. The circumstances described in subs. (2)(a)(ii) are not just aggravating consequences, but are essential elements of the actus reus of the offence. Thus, the Crown must prove beyond a reasonable doubt both that the circumstances listed in subs. (2)(a)(ii) were objectively foreseeable in the circumstances, and that the conduct of the accused represented a marked departure from the standard of care required by those circumstances.

As this Court's decisions in Hundal and in R. v. DeSousa, 1992 80 (SCC), [1992] 2 S.C.R. 944, made clear, this objective basis of criminal liability does not, per se, violate the Charter. That is, there is no principle of fundamental justice requiring subjective foresight for criminal offences. In Hundal, Cory J. wrote (at p. 882): "In the appropriate context, negligence can be an acceptable basis of liability which meets the fault requirement of s. 7 of the Charter."

However, it remains to be decided whether a conviction under s. 215 carries with it such social stigma and such a severe penalty that a conviction based on penal negligence would violate s. 7 of the Charter, under the test developed in Vaillancourt. I do not think that it does.

While the conduct proscribed by s. 215(2)(a)(ii) is undoubtedly serious, involving as it does a breach of a parent's duty to his or her child, this is not a situation as existed in the case of constructive murder, under which an accused who had no subjective foresight of the risk of death was nevertheless branded with the stigma attendant on a conviction for murder. While a conviction under s. 215(2)(a)(ii) will no doubt result in the stigmatization, or even, as Naglik submitted, vilification, of the accused, this stigmatization is neither unfairly disproportionate nor unrelated to the culpable conduct of which the accused was found guilty. Where a person is convicted of an offence under s. 215(2)(a)(ii) only, the stigma which attaches to the conviction is only that described by the offence: if an objective standard is accepted, the accused is stigmatized as someone who failed to provide for his or her child in circumstances where the reasonably prudent parent clearly would have so provided.

There is no minimum penalty for this hybrid offence, and a maximum prison term of two years if the Crown proceeds successfully by indictment. The lack of a minimum penalty means that the sentencing judge can tailor the sentence to the circumstances of the particular offence and offender, eliminating the danger of the accused being punished to a degree out of proportion to the level of fault actually found to exist.

The availability of a defence of lawful excuse in s. 215(2) also serves to prevent the punishment of the morally innocent, even where the accused fails to meet the standard of care imposed by the objective test of penal negligence.

Because of my conclusion that no violation of the Charter is indicated, it is not necessary to answer the second constitutional question.

Also, because I would order a new trial on the second ground of appeal (relating to the charge to the jury), it is not necessary to examine the trial judge's charge to the jury for conformity to the objective test for penal negligence I have set out above. At Naglik's new trial, the trial judge must charge the jury on this objective basis of liability, with specific reference to Naglik's particular personal capacities and the circumstances of the offence relevant to the charges on which that trial proceeds.

Finally, Naglik also argued that the requirement in s. 215(2) that the accused prove the presence of a lawful excuse for his or her failure to provide necessaries violates s. 11(d) of the Charter. However, no constitutional question was stated in this respect, so that the provincial attorneys general have not had an opportunity to intervene on this issue. Furthermore, I would be reluctant to decide the issue in this appeal, as there is no allegation in the record that Naglik in fact had or alleged that she had a lawful excuse other than her lack of subjective awareness. Under the penal negligence standard, this is not a lawful excuse, and as I have discussed above, her youth, experience, education, and the circumstances of the offence will be fully accounted for, in so far as they are determined to be relevant. Accordingly, I express no opinion on the constitutionality of the reverse onus aspect of s. 215(2).

VI. Disposition

I would therefore allow Naglik's appeal as of right on the second ground of appeal, set aside the convictions on both counts, and order a new trial on each of these counts.

I would also allow the Attorney General for Ontario's cross-appeal and answer the constitutional questions as follows:

1.Does an objective basis of liability for s. 215 of the Criminal Code of Canada offend s. 7 of the Canadian Charter of Rights and Freedoms?

A.No.

2.If the answer to question 1 is yes, is an objective basis of liability for s. 215 a reasonable limit on the s. 7 Charter right pursuant to s. 1 of the Charter?

A.It is not necessary to answer this question.

The judgment of La Forest, Cory and McLachlin JJ. was delivered by

McLachlin J. -- This appeal raises constitutional issues in the context of a trial where both parents of an infant were charged with bringing about permanent injuries against their own child. In 1987, Christine Naglik (the appellant and respondent on cross-appeal) and her common law husband, Peter Geoffrey Pople, were charged with aggravated assault of, and failure to provide necessaries of life to, their infant son, Peter. The facts and judgments below are set out by the Chief Justice.

The appeal and cross-appeal raise two constitutional issues. The first is the scope of the right to not testify in a proceeding against oneself as provided for in the Canada Evidence Act, and guaranteed under s. 11(c) of the Canadian Charter of Rights and Freedoms. Section 4(6) of the Canada Evidence Act, R.S.C., 1985, c. C-5, provides:

4. ...

(6) The failure of the person charged, or of the wife or husband of that person, to testify shall not be made the subject of comment by the judge or by counsel for the prosecution.

The second constitutional issue, raised by cross-appeal, is the validity of s. 215 of the Criminal Code, R.S.C., 1985, c. C-46, under s. 7 of the Charter. Section 215 reads:

215. (1) Every one is under a legal duty

(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;

(2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies on him, to perform that duty, if

(a) with respect to a duty imposed by paragraph (1)(a) or (b),

(ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently;

On the first issue, I agree with the Chief Justice.

On the cross-appeal, I agree with the reasons of the Chief Justice, save for his comments at pp. 000 and 000, which adopt his view of the objective test for penal negligence discussed in R. v. Gosset, 1993 62 (SCC), [1993] 3 S.C.R. 76, released concurrently. I respectfully disagree with the Chief Justice's conclusion that when considering what the accused "ought to have known" under an objective standard, one should have regard to Ms. Naglik's "youth, experience, [and] education", as advocated by the Chief Justice at p. 000. For the reasons discussed in R. v Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3 (released concurrently), it is my view that in determining what Ms. Naglik "ought to have known", the trier of fact must determine the conduct of the reasonable person when engaging in the particular activity of the accused in the specific circumstances that prevailed. These circumstances do not include the personal characteristics of the accused, short of characteristics which deprived her of the capacity to appreciate the risk. Youth, inexperience, and lack of education were not suggested on the evidence to deprive Ms. Naglik of the capacity to appreciate the risk associated with neglecting her child. Therefore, she must be held to the standard of the reasonably prudent person.

I agree with the Chief Justice that the appeal should be allowed, the convictions set aside on both counts, and a new trial ordered. I would allow the cross-appeal and answer the constitutional questions as does the Chief Justice.

The reasons of L'Heureux-Dubé and Gonthier JJ. were delivered by

L'Heureux-Dubé J. (dissenting in part) -- As my colleagues point out, this appeal raises constitutional issues in the context of a criminal charge laid against Christine Naglik and her common law husband of one count of aggravated assault and a second count of failure to provide necessaries of life to their infant son, Peter. Both were found guilty after a trial before judge and jury. The Ontario Court of Appeal allowed Christine Naglik's appeal on the second count and ordered a new trial on that count: (1991), 1991 2702 (ON CA), 3 O.R. (3d) 385, 65 C.C.C. (3d) 272, 46 O.A.C. 81. Christine Naglik's appeal before us raises two issues and the Attorney General for Ontario, in his cross‑appeal, raises the constitutionality of mens rea under s. 215 of the Criminal Code, R.S.C., 1985, c. C‑46.

On that last issue, I agree entirely with Justice McLachlin's reasons more fully set out in her reasons in R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3, released concurrently, in which I have concurred. Consequently, I would allow the cross‑appeal.

On the issues raised by the main appeal, I will first deal briefly with the question of whether counsel for the co‑accused was entitled to comment on the failure of the appellant to testify at trial, a question to which the Chief Justice, in his reasons, has briefly alluded without further comment.

That question arises our of s. 4(6) of the Canada Evidence Act, R.S.C., 1985, c. C‑5:

4. . . .

(6) The failure of the person charged, or of the wife or husband of that person, to testify shall not be made the subject of comment by the judge or by counsel for the prosecution.

Since there was no challenge to the constitutionality of s. 4(6) of the Act and given that the majority orders a new trial, I will say only that, in my view, such comment is permitted as part and parcel of the right of an accused to make full answer and defence. Whether one relies on the common law, the Canada Evidence Act or the Canadian Charter of Rights and Freedoms, there exists no rule of law prohibiting such comment. In particular, there is no unfairness if, like here, a voir dire is held and the issue is fully aired before the trial judge.

The second issue raised by the appellant concerns one aspect of the judge's charge to the jury, namely his response to the following question from the jury: "Do we have to agree on guilty or not guilty?" The trial judge answered:

Your question is "do we have to agree on guilty or not guilty". Well, the 12 of you have to agree on a verdict of guilty or not guilty with respect to count one and with respect to each accused. In other words, you must be unanimous one way or the other with respect to each accused and with respect to each count. Is that confusing?

In other words, you have to look at count one and you have to consider the evidence with respect to each accused and bring in your verdict one way or the other. The 12 of you have to come to a decision one way or the other.

On that point, I share the view of the majority of the Court of Appeal for Ontario that the trial judge's charge to the jury contained no error.

On the basis of this Court's decision in Latour v. The King, 1950 12 (SCC), [1951] S.C.R. 19, and an earlier decision of the Ontario Court of Appeal, R. v. DeMarco (1973), 1973 1542 (ON CA), 13 C.C.C. (2d) 369, Galligan J.A., for the majority of the Ontario Court of Appeal, held (at p. 406 O.R.) that it is incumbent upon a trial judge to instruct a jury:

(1)that the jury must agree unanimously before it can return a verdict, and

(2)that each juror has the right to disagree.

At the end of his address just prior to the jury retiring to begin their deliberations, the trial judge instructed the jury as follows:

Since this is a criminal trial, you must be unanimous in your verdict. In other words, each and all of you must agree on each verdict that you see fit to return with respect to each accused. It is your right to disagree but I know you will do your best to come to an agreement. This trial has involved considerable time and expense and there have been the lives of people, your lives, the lives of witnesses, have been disrupted and I am certain that no other jury can deal with this matter better than you. [Emphasis added.]

No objection was taken by counsel to this aspect of the charge, and both the majority and the minority of the Court of Appeal were in agreement that these instructions represent an accurate statement of the law. The jury subsequently returned with the following question which I reproduce for ease of convenience: "Do we have to agree on guilty or not guilty?" It is at this point that the alleged error in the charge arose. The trial judge answered as follows:

THE COURT: . . . Well, the 12 of you have to agree on a verdict of guilty or not guilty with respect to count one and with respect to each accused. In other words, you must be unanimous one way or the other with respect to each accused and with respect to each court. Is that confusing?

In other words, you have to look at count one and you have to consider the evidence with respect to each accused and bring in your verdict one way or the other. The 12 of you have to come to a decision one way or the other. Okay. Any problems?

FOREMAN OF THE JURY: No.

As is evident from the foreman's answer, there is no suggestion that the response to the jury's query failed to satisfy their concerns or that it raised further doubts as to the previous instructions. Again, no objection was taken by counsel to those directions of the trial judge. As this Court has held on previous occasions, it is crucial to have regard to the charge as a whole, and the recharge cannot be read in isolation from the trial judge's earlier instructions. In Laforet v. The Queen, 1979 58 (SCC), [1980] 1 S.C.R. 869, an earlier case in which this Court considered a recharge regarding the need for a unanimous verdict, Martland J. held at pp. 878-79:

Another ground of appeal raised on behalf of the appellant is that the recharge of the trial judge on the question of a unanimous verdict could have caused a juror reasonably to conclude that the jury did not have a right to disagree.

In my opinion the trial judge's recharge as to unanimity cannot be said to have that effect. Considered in the context of the events which led up to this recharge, and in light of the trial judge's comments in his initial charge, the re‑instruction can be seen as no more than a request that the jury again consider the issue as to whether or not they were unanimous in their verdict in order to ensure that the verdict rendered was a true verdict in accordance with their duty as jurors. The trial judge had already made it clear to the jury, in his initial comments to them, that they had the right to disagree. [Emphasis added.]

Here, the jury was clearly instructed that it was entitled to disagree in the judge's initial instructions, and, as the Court of Appeal rightly held, an appellate court should assume that such instructions are understood.

The question as formulated by the jury shows that the members of the jury were not under any misapprehension about their ability to disagree, but rather that they were uncertain as to whether or not they needed to be unanimous in reaching a verdict. To that specific interrogation, the trial judge gave a "full, careful and correct response", as this Court has held is appropriate when a question is asked by a jury (R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, at pp. 759‑60).

As the Court of Appeal concluded, there is no further obligation to provide answers to questions that were not asked. This, in my view, settles this matter.

If, however, there were any doubt, here, as to whether the verdict rendered represented the verdict of each individual juror, it was completely laid to rest by the fact that the jurors were individually polled at the request of counsel for the appellant after the result had been announced by the foreman of the jury.

The charges in this case are very serious and I agree with the majority of the Court of Appeal that the accused had a fair trial and the conviction should stand.

In the result, I would dismiss the principal appeal, allow the cross‑appeal and restore the conviction on the second count.

Appeal and cross‑appeal allowed, L'Heureux‑Dubé and Gonthier JJ. dissenting in part.

Solicitor for the appellant and cross‑respondent Naglik: Irwin Koziebrocki, Toronto.

Solicitor for the respondent and cross‑appellant Her Majesty The Queen: The Attorney General for Ontario, Toronto.

Solicitor for the intervener the Attorney General of Canada: John C. Tait, Ottawa.

Solicitors for the intervener the Attorney General of Quebec: Jacques Gauvin and Daniel Grégoire, Sainte‑Foy.

Solicitor for the intervener the Attorney General for Alberta: Paul C. Bourque, Edmonton.