SUPREME COURT OF CANADA

Citation: R. v. J.F., [2008] 3 S.C.R. 215, 2008 SCC 60

Date: 20081031

Docket: 32203

Between:

Her Majesty The Queen Appellant / Respondent on cross‑appeal

and

J.F. Respondent / Appellant on cross‑appeal

Coram: McLachlin C.J. and Binnie, Deschamps, Fish, Abella, Charron and Rothstein JJ.

Reasons for Judgment: (paras. 1 to 42)

Dissenting Reasons: (paras. 43 to 101)

Fish J. (McLachlin C.J. and Binnie, Abella, Charron and Rothstein JJ. concurring) Deschamps J.

R. v. J.F., [2008] 3 S.C.R. 215, 2008 SCC 60

Her Majesty The Queen Appellant/Respondent on cross‑appeal

v.

J.F. Respondent/Appellant on cross‑appeal

Indexed as: R. v. J.F.

Neutral citation: 2008 SCC 60.

File No.: 32203.

2008: April 18; 2008: October 31.

Present: McLachlin C.J. and Binnie, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for ontario

Criminal law — Appeals — Unreasonable verdict — Accused convicted by jury of manslaughter by criminal negligence and acquitted of manslaughter by failing to provide necessaries of life — Both offences arising in respect of same act of omission against accused’s foster son — Whether verdicts inconsistent — If so, whether conviction of manslaughter by criminal negligence should be set aside and acquittal entered.

Criminal law — Criminal negligence — Failure to provide necessaries of life — Elements of offences — Relationship between both offences — Accused convicted of manslaughter by criminal negligence and acquitted of manslaughter by failure to provide necessaries of life — Whether verdicts can be explained by differences between offences.

M was four years old when he died in his foster home from multiple blunt traumas to his head. M’s body was extensively bruised. M’s foster mother confessed to beating M and pleaded guilty to manslaughter. The accused, M’s foster father, was charged with manslaughter by criminal negligence and manslaughter by failing to provide the necessaries of life. He was convicted by a jury on the first count, but acquitted on the second. The accused appealed his conviction. A majority of the Court of Appeal overturned the conviction and ordered a new trial on the charge of manslaughter by criminal negligence on the basis that the verdicts were inconsistent. The Crown appealed as of right on the issue of inconsistent verdicts. The accused cross‑appealed the order for a new trial, contending that an acquittal ought to have been entered.

Held (Deschamps J. dissenting): The appeal should be dismissed and the cross‑appeal should be allowed. The order setting aside the conviction on the charge of manslaughter by criminal negligence should be affirmed and an acquittal entered.

Per McLachlin C.J. and Binnie, Fish, Abella, Charron and Rothstein JJ.: The verdicts rendered at trial are inconsistent and the conviction of manslaughter by criminal negligence must be quashed. There was no reasonable basis upon which to convict and acquit the accused at the same trial, of the same offence committed in the same way against the same victim. The accused was tried on two counts of manslaughter by omission. Though each count alleged different “underlying” or “predicate” offences, the accused’s guilt in respect of both counts was made by the Crown to depend on exactly the same failure to perform exactly the same duty: the duty to protect his foster child from foreseeable harm from his spouse. The actus reus, the prosecution theory, and essentially the fault element are common to both offences. The count of failure to provide the necessaries of life required proof of a marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the omission would lead to a risk of danger to M’s life, or a risk of permanent endangerment to his health. Criminal negligence, the more serious offence, required proof that the same omission represented a marked and substantial departure from the conduct of a reasonably prudent parent in circumstances where the accused either recognized and ran an obvious and serious risk to M’s life or gave no thought to that risk. The conviction can only be supported upon a finding that the accused failed in his duty to protect M, the factual foundation and the gravamen of both counts. The verdicts signify that a lesser degree of fault was not established whereas a greater degree of fault was proven beyond a reasonable doubt. Even if the fault requirements were treated as equivalent, the verdicts are incomprehensible. [1‑4] [8‑9] [17] [37] [38] [40]

The verdicts cannot be reconciled retrospectively based on arguments that the offences differ or the trial judge misdirected the jury. Abstract differences between the offences formed no part of the trial and are of no relevance on the facts of the case. Nor is it likely that the jury was misled by the trial judge’s instructions with respect to failure to provide the necessaries of life. Even if the intructions were erroneous, improper instructions do not make improper verdicts proper, nor inconsistent verdicts consistent. [5] [18] [23-24]

Where criminal negligence and failure to provide the necessaries of life are alleged, the jury first should consider whether the accused failed a duty to provide the necessaries of life. If so, the jury is bound to find the accused guilty of that offence. The jury then should consider whether the accused, in failing to provide the necessaries of life, showed a wanton or reckless disregard for the life or safety of the child. If so, the jury is bound to find the accused guilty of criminal negligence. If not, the jury could still find the accused guilty of failure to provide the necessaries of life, but not of criminal negligence. [37]

This is not an appropriate case in which to order a new trial. Rather, an acquittal should be entered on the count of manslaughter by criminal negligence. Since, in this case, the Crown did not appeal the accused’s acquittal on the count of manslaughter by failing to provide the necessaries of life, a new trial would deprive the accused of the benefit of his acquittal and expose him to a finding that he did in fact commit the offence of which he was acquitted. [39] [41]

Per Deschamps J. (dissenting): The accused has not met the onus of proving that the verdicts were inconsistent, and the conviction on the charge of manslaughter by criminal negligence should be restored. When an appellant pleads that two verdicts are inconsistent, a court of appeal must determine whether the verdict appealed from is unreasonable because it tends to indicate that the jury must have been confused as to the evidence or must have reached some sort of unjustifiable compromise. No such demonstration was made in this case. [43] [61] [92]

The essential elements of the offences differ. Both are negligence‑based offences for which fault requires proof of a failure to direct the mind to a risk of harm which the reasonable parent would have appreciated. However, the fault element of each offence is in large part premised on the actus reus of the offence and the actus reus of each offence differ. The actus reus of failing to provide the necessaries of life required proof that the accused was under a legal duty to provide the necessaries of life to M, that he failed, viewed objectively, to perform the duty, and that this failure, assessed objectively, endangered M’s life or caused or was likely to cause M’s health to be endangered permanently. The actus reus of criminal negligence required proof that the accused was under a legal duty to do something, that he failed, viewed objectively, to perform his duty, and that in failing to perform his duty, he showed, assessed objectively, a wanton or reckless disregard for the lives or safety of other persons. While the two offences may involve the same legal duty, each offence sets out a different type of risk of harm and the trial judge’s instructions to the jury were clear on that point. The jury was instructed on both counts to find a marked and substantial departure from what a reasonable parent would do in the circumstances. For the offence of failing to provide the necessaries of life, the jury was further instructed to consider whether the accused endangered M’s life or caused or likely caused his health to be endangered permanently. This harm was described as unique to the offence of failing to provide the necessaries of life. The charge to the jury set out the essential elements of each offence in such a way that the jury did not answer the same question when determining each verdict. [64‑66] [68‑69] [73‑75] [91]

It was open to the jury to find that the accused failed to direct his mind to the health or safety of M, but not that M’s health was endangered permanently. The time line of M’s bruising was a crucial factual issue. A finding that the accused failed to direct his mind to the health or safety of M did not necessarily imply that M’s health was permanently endangered. The jury was clearly instructed that the reasonable doubt standard applied to the harm unique to failing to provide the necessaries of life and would have understood that the two counts had to be distinguished. The verdicts are supportable on the instructions and the theory of the evidence. [77] [81] [84] [86‑88]

Even if the verdict was unreasonable in this case, the just order would have been a new trial on both counts. An appeal from the acquittal was not necessary to order a new trial on both counts in this case because s. 686(8) of the Criminal Code empowers an appeal court to make any order that justice requires, including an order for a new trial where the court finds defects in the instructions on the charge that led to an acquittal. [95]

Cases Cited

By Fish J.

Referred to: R. v. Naglik, 1993 64 (SCC), [1993] 3 S.C.R. 122; R. v. Tutton, 1989 103 (SCC), [1989] 1 S.C.R. 1392; R. v. Sharp (1984), 1984 3487 (ON CA), 12 C.C.C. (3d) 428; R. v. Willock (2006), 2006 20679 (ON CA), 210 C.C.C. (3d) 60; R. v. L. (J.) (2006), 2006 805 (ON CA), 204 C.C.C. (3d) 324; R. v. Palin (1999), 1999 9834 (QC CA), 41 M.V.R. (3d) 11, 135 C.C.C. (3d) 119; R. v. Fortier (1998), 1998 12917 (QC CA), 41 M.V.R. (3d) 221, 127 C.C.C. (3d) 217; R. v. Brown (2000), 2000 2048 (ON CA), 134 O.A.C. 151; R. v. Baker (2006), 2006 19332 (ON CA), 209 C.C.C. (3d) 508; R. v. E. (A.) (2000), 2000 16823 (ON CA), 146 C.C.C. (3d) 449; Kienapple v. The Queen, 1974 14 (SCC), [1975] 1 S.C.R. 729; R. v. Provo, 1989 71 (SCC), [1989] 2 S.C.R. 3; R. v. Johnson, 2007 CarswellOnt 7765; R. v. J.R.B., [2002] N.J. No. 296 (QL); R. v. Fitze (2000), 2000 28266 (AB KB), 35 C.R. (5th) 114; R. v. Pittiman, [2006] 1 S.C.R. 381, 2006 SCC 9.

By Deschamps J. (dissenting)

R. v. McShannock (1980), 1980 2973 (ON CA), 55 C.C.C. (2d) 53; R. v. Pittiman, [2006] 1 S.C.R. 381, 2006 SCC 9; R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3; R. v. Beatty, [2008] 1 S.C.R. 49, 2008 SCC 5; R. v. Gosset, 1993 62 (SCC), [1993] 3 S.C.R. 76; R. v. Naglik, 1993 64 (SCC), [1993] 3 S.C.R. 122; Corbett v. The Queen, 1973 199 (SCC), [1975] 2 S.C.R. 275; R. v. François, 1994 52 (SCC), [1994] 2 S.C.R. 827; Kienapple v. The Queen, 1974 14 (SCC), [1975] 1 S.C.R. 729; R. v. Prince, 1986 40 (SCC), [1986] 2 S.C.R. 480; Krug v. The Queen, 1985 2 (SCC), [1985] 2 S.C.R. 255; R. v. Andrew (1990), 1990 11057 (BC CA), 57 C.C.C. (3d) 301; R. v. Switzer (1987), 1987 ABCA 23, 32 C.C.C. (3d) 303; R. v. Provo, 1989 71 (SCC), [1989] 2 S.C.R. 3; R. v. Couture (1988), 27 Q.A.C. 205.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C‑46, ss. 86(1), 215, 219, 222(5)(a), (b), 234, 236(b), 249(1)(a), 686(1)(a)(i), (8).

Authors Cited

Parent, Hugues. Traité de droit criminel, t. 2, 2^e éd. Montréal: Thémis, 2007.

APPEAL and CROSS‑APPEAL from a judgment of the Ontario Court of Appeal (Laskin, Lang and MacFarland JJ.A.) (2007), 226 O.A.C. 119, 222 C.C.C. (3d) 474, 51 C.R. (6th) 386, [2007] O.J. No. 2632 (QL), 2007 CarswellOnt 4238, 2007 ONCA 500, setting aside the accused’s conviction and ordering a new trial on a charge of manslaughter by criminal negligence. Appeal dismissed and cross‑appeal allowed, Deschamps J. dissenting.

Kimberley Crosbie, for the appellant/respondent on cross‑appeal.

Greg Brodsky, Q.C., and Ryan Amy, for the respondent/appellant on cross‑appeal.

The judgment of McLachlin C.J. and Binnie, Fish, Abella, Charron and Rothstein JJ. was delivered by

Fish J. —

I

[1] The respondent in this case was acquitted and convicted by the same jury at the same trial of the same offence committed in the same way against the same victim.

[2] He was tried on a single indictment containing two counts of manslaughter by omission. Though each count alleged different “underlying” or “predicate” offences, the respondent’s guilt in respect of both counts was made by the Crown to depend on exactly the same failure to perform exactly the same duty. Toward the end of his charge, the trial judge made this clear to the jury in these terms:

The Crown alleges that by criminal negligence (count 1) and by a failure to provide the necessaries of life (count 2), [J.F.] failed in his legal duty to protect his foster child, [K.M.], from foreseeable harm from his spouse; and, by his failure, contributed (that is to say caused) the death of [K.M.]. [Emphasis added; A.R., at p. 609.]

The same prohibited conduct, or actus reus, was thus common to both counts.

[3] The fault element, though not identical, was essentially common to both counts as well. So, too, was the theory of the prosecution, explained in these terms by the Crown in this Court:

The respondent was charged with two counts of manslaughter by unlawful act [more accurately, by unlawful omission] — the first by criminal negligence, and the second by failing to provide the necessaries of life. The theory of the Crown, in essence, was that the respondent had failed to fulfill his legal duty to protect [K.M.] and that failure was a contributing cause of his death. There was no allegation that the respondent himself inflicted any direct physical injury against [K.M.]. [Emphasis added; A.F., at para. 2.]

[4] In short, the jury in this case acquitted the respondent on one count of manslaughter by omission and convicted him on another count of manslaughter alleging the same omission. Both counts involved similar fault requirements. To the extent that they differed, the count on which the respondent was convicted (criminal negligence), was more serious than the count upon which he was acquitted (failure to provide the necessaries of life). Moreover, as the judge’s charge made plain, the jury was required to answer essentially the same question in determining whether the respondent was guilty of manslaughter under either count. In the circumstances of this case — bearing in mind, especially, the nature and evident gravity of the injuries inflicted — there was thus no reasonable basis upon which the jury could acquit the respondent on count 2 and convict him on count 1. It was not open to the jury to say “yes” and “no” to substantially the same question, as in fact it did.

[5] That is the unvarnished significance of the verdicts rendered at trial. And we must not obscure that reality beneath an intellectualized gloss, however attractive, on appeal. More particularly, we cannot reconcile the verdicts retrospectively on the basis of abstract differences between the underlying offences — differences of little relevance on the facts of this case and, evidently for that reason, neither relied on by the Crown at trial nor specifically explained by the judge in his charge to the jury.

[6] With respect for those who are of a different view, I would dismiss the appeal and allow the cross-appeal. Elementary fairness and legal principle both command that result. The rest is commentary.

II

[7] The fault element required for conviction at trial was essentially common to both counts of manslaughter. On count 1, the requisite fault element was that of the underlying offence of criminal negligence; on count 2, the requisite fault element was that of failure to provide the necessaries of life. Neither criminal negligence nor failure to provide the necessaries of life requires proof of intention or actual foresight of a prohibited consequence. Under both counts, the jury was required to determine not what the respondent knew or intended, but what he ought to have foreseen.

[8] On the count alleging failure to provide necessaries, the Crown was bound to establish that the respondent’s failure to protect his foster child represented “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”: R. v. Naglik, 1993 64 (SCC), [1993] 3 S.C.R. 122, at p. 143 (emphasis added). It will later become apparent why I have emphasized the word “risk” in this description of the offence by the Chief Justice, speaking for the Court on this point.

[9] On the count alleging criminal negligence, the Crown was bound to show that the respondent’s very same omission represented a marked and substantial departure (as opposed to a marked departure) from the conduct of a reasonably prudent parent in circumstances where the accused either recognized and ran an obvious and serious risk to the life of his child or, alternatively, gave no thought to that risk: R. v. Tutton, 1989 103 (SCC), [1989] 1 S.C.R. 1392, at pp. 1430-31; R. v. Sharp (1984), 1984 3487 (ON CA), 12 C.C.C. (3d) 428 (Ont. C.A.).

[10] The difference between a marked departure and a marked and substantial departure has been considered in several appellate decisions since Naglik and Tutton, mainly but not exclusively in the context of driving offences: See, for example, R. v. Willock (2006), 2006 20679 (ON CA), 210 C.C.C. (3d) 60 (Ont. C.A.); R. v. L. (J.) (2006), 2006 805 (ON CA), 204 C.C.C. (3d) 324 (Ont. C.A.); R. v. Palin (1999), 1999 9834 (QC CA), 41 M.V.R. (3d) 11, 135 C.C.C. (3d) 119 (Que. C.A.); R. v. Fortier (1998), 1998 12917 (QC CA), 41 M.V.R. (3d) 221, 127 C.C.C. (3d) 217 (Que. C.A.); R. v. Brown (2000), 2000 2048 (ON CA), 134 O.A.C. 151; R. v. Baker (2006), 2006 19332 (ON CA), 209 C.C.C. (3d) 508 (Ont. C.A.); R. v. E. (A.) (2000), 2000 16823 (ON CA), 146 C.C.C. (3d) 449 (Ont. C.A.). This case does not turn on the nature or extent of the difference between the two standards.

[11] A brief comment on this branch of the matter will therefore suffice. If the fault element under both counts was the same — if a marked departure was sufficient in both instances — an acquittal on one and a conviction on the other would be plainly inconsistent because both counts alleged the identical actus reus as well. It is undisputed, however, that criminal negligence, unlike failure to provide the necessaries of life, involves a marked and substantial departure from the norm of a reasonable person. In this light, the verdicts at trial — not guilty of failing to provide necessaries, yet guilty of criminal negligence — are not only inconsistent, but incomprehensible as well.

[12] Moreover, Parliament has made it clear not only in the relevant procedural provisions of the Criminal Code, R.S.C. 1985, c. C-46, but also in the sentencing provisions that criminal negligence is the more serious of the two offences. Criminal negligence causing bodily harm must be prosecuted by indictment; failure to provide the necessaries of life, a hybrid offence, can be prosecuted either by indictment or on summary conviction. Criminal negligence is punishable by a maximum of 10 years’ imprisonment; failure to provide the necessaries of life is punishable, on indictment, by a maximum of 5 years (at the time of trial, 2 years) and, on summary conviction, by 18 months (at the time of trial, 6 months).

[13] That criminal negligence is a more serious offence, signifying more blameworthy conduct, has been recognized by the courts as well. This is reflected in cases where the accused has been found guilty of both offences: Applying the rule against multiple convictions in accordance with Kienapple v. The Queen, 1974 14 (SCC), [1975] 1 S.C.R. 729, and R. v. Provo, 1989 71 (SCC), [1989] 2 S.C.R. 3, courts have systematically recorded a conviction of criminal negligence, as the more serious of the two offences, and entered a stay on the charge of failure to provide the necessaries of life (see, for example, R. v. Johnson, 2007 CarswellOnt 7765 (Ct. J.)). And in the few reported cases where the accused was finally acquitted of one of these offences and convicted of the other, the conviction was for failure to provide the necessaries of life and the acquittal for criminal negligence (see, for example, R. v. J.R.B., [2002] N.J. No. 296 (QL) (Prov. Ct.); R. v. Fitze (2000), 2000 28266 (AB KB), 35 C.R. (5th) 114 (Alta. Q.B.)). I am not aware of a single case in which a conviction has been recorded for failing to provide the necessaries of life and a stay entered for criminal negligence pursuant to the rule against multiple convictions.

[14] Needless to say, I refer here to the rule against multiple convictions for the sole purpose of demonstrating that courts have generally treated criminal negligence as a more serious offence than failure to provide the necessaries of life. The rule against multiple convictions applies, of course, only to multiple convictions — which is not our case. Our concern, rather, is with the rule against inconsistent verdicts, a conceptually distinct rule that precludes a conviction on one charge which cannot be reasonably reconciled with an acquittal on the other. More specifically, our concern is with the application of the rule against inconsistent verdicts to the facts and circumstances of this case. Nothing in these reasons is meant to modify in any way either the rule against multiple convictions or the rule against inconsistent verdicts.

[15] Thus, in Provo the accused — unlike the appellant in this case — was found guilty on two counts. Applying the rule against multiple convictions, the trial judge mistakenly entered an acquittal on the less serious charge. This Court held that the judge was bound instead to have entered a conditional stay, permitting the Court of Appeal, after quashing the conviction for the more serious charge, to substitute a conviction on the less serious charge upon which the accused had been found guilty at trial but erroneously “acquitted”.

[16] The relative seriousness of the two offences explains as well why criminal negligence has generally been held to require a marked and substantial departure from the norm (see, for example, Palin; Fortier; L. (J.); Willock; Brown; Baker; E. (A.)), while failure to provide the necessaries of life has been held to require only a marked departure from the norm (see, for example, Naglik, at p. 143).

[17] As I have already mentioned, the verdicts at trial signify that a lesser degree of fault was not established, while a greater degree of fault was proven beyond a reasonable doubt. Even if the jury treated the fault requirements as equivalent, the verdicts would remain inconsistent because, as we have seen, the actus reus for both offences was, on the facts of this case, identical. In either case, the respondent’s conviction cannot stand.

III

[18] The Crown submits that the verdicts at trial are not inconsistent in view of the “operative statutory distinctions” between criminal negligence and failure to provide the necessaries of life. The Crown relies as well on an instruction of the trial judge that it characterizes as erroneous in law.

[19] I shall deal more fully with each of these grounds in turn, but find it helpful to explain immediately, briefly and respectfully, why I disagree with them both.

[20] First, for the reasons already given, I think it unfair in principle and wrong in law to reconcile the respondent’s conviction and acquittal by the jury on the basis of theoretical considerations that formed no part of the case against the accused at trial. Even if they had been raised at trial, which they were not, the distinctions raised by the Crown (and by Justice Deschamps) would not render consistent the respondent’s acquittal and conviction on the facts of this case.

[21] Second, reading the judge’s charge as a whole, I am not persuaded that he misdirected the jury with respect to the count on which the respondent was acquitted. In any event, as a matter of legal process and the legitimacy of verdicts, I would decline to uphold the respondent’s conviction on the ground that it can be reconciled with his acquittal on another count of the same indictment on the basis of a legal error at trial.

IV

[22] Essentially then, the Crown argues that the respondent’s conviction of manslaughter by criminal negligence is consistent, for two reasons, with his acquittal of manslaughter by failing to provide the necessaries of life: The first relates to “operative statutory distinctions” between the two predicate offences; the second, to an instruction by the trial judge now said to be erroneous but explicitly acquiesced in by the Crown at trial. The Crown recognizes that a risk of harm was the governing test under both counts. But the jury was directed — erroneously, in the Crown’s view — to apply a test of likelihood — not risk — on the count alleging failure to provide the necessaries of life. On the basis of this impugned instruction by the trial judge, the Crown now argues that the jury could reasonably, though wrongly as a matter of law, find the respondent not guilty of failing to provide the necessaries of life in omitting to protect his child from the violence of his spouse — but nonetheless guilty of criminal negligence because of the very same omission.

[23] As I have already made plain, I would not allow the appeal on the basis of what the Crown characterizes as an erroneous instruction in law. On an allegation by the Crown that the trial judge erred in this regard, the appropriate recourse would have been for the Crown to appeal the acquittal and not for this Court to uphold the conviction on another count. This is particularly true where, as mentioned earlier, Crown counsel expressly acquiesced in the instruction now said to be erroneous. Finally, verdicts are deemed inconsistent — and therefore unreasonable as a matter of law — if no properly instructed jury could reasonably have returned them both: R. v. Pittiman, [2006] 1 S.C.R. 381, 2006 SCC 9. Improper instructions do not make improper verdicts proper. Nor do they make inconsistent verdicts consistent.

[24] In fairness to the trial judge, I think it important to add that his recharge was in full conformity with the submissions of counsel. It related what he had earlier said to the express terms of s. 215(2)(a)(ii) of the Criminal Code. I agree that the relationship between “risk”, “endangers”, and “is likely to” in the context of that provision could have been more felicitously explained; I am satisfied, however, that the jury is unlikely to have been misled by the trial judge’s recharge with respect to the Crown’s burden of proof under count 2.

[25] The respondent was charged in that count with manslaughter for failing to provide his foster child, K.M., with one of the necessaries of life — protection from the injuries inflicted on K.M. by the respondent’s spouse. Reading the judge’s recharge in the context of his instructions as a whole, the jury may safely be thought to have understood that the respondent was guilty under count 2 if (1) his failure to protect the child contributed to the child’s death and (2) a reasonable parent in the same circumstances would have foreseen that failing to protect K.M. would cause the child’s health to be endangered permanently. Bearing in mind the severe injuries suffered by K.M. and the duration of the violence to which he was subjected, no reasonable parent could have foreseen the inevitable and real risk of permanent harm but nonetheless found that harm to be “unlikely”.

[26] I turn in this context to the second ground upon which the Crown urges us to find that the verdicts are not inconsistent. This ground is advanced in the following terms:

To prove criminal negligence, the Crown must establish that the accused showed a wanton disregard for the life or safety of a person that he or she was legally bound to protect. To found a conviction on failing to provide the necessaries of life however, the accused must be proven to have shown such a disregard that the person’s life is endangered or their health is permanently endangered. To be certain, there is some overlap between the types of harm that children are to be protected against and both offences require an objective foreseeability of some type of harm. However, there is a critical difference in the gravity of harm that needs to be foreseen between “safety” and permanent endangerment to health. [Emphasis deleted; A.F., at para. 38.]

[27] This abstract distinction between the two offences, like the first, is of little relevance on the facts of this case. Evidently for that reason, as I suggested earlier, neither distinction was relied on by the Crown at trial nor specifically explained by the judge in his charge to the jury. Indeed, the distinction between safety and permanent endangerment to health — the principal ground advanced by the Crown and relied upon by Justice Deschamps — was at no time raised by either side throughout the entire course of the trial.

[28] Nor was it mentioned by the trial judge in his charge to the jury. At the hearing of the appeal, Crown counsel was invited to “tell us where in the charge to the jury the judge explained that they could find a risk to safety without finding a risk to the [child’s] permanent endangerment to health”. She was, of course, unable to do so. Crown counsel was then asked whether the trial judge “[d]id . . . actually draw that distinction between the two [underlying offences]”. Quite properly, Crown counsel acknowledged that she “didn’t see where there was that directive in the charge” (transcript, at p. 18).

[29] This, too, was perfectly understandable in light of the facts of the case, notably the nature and extent of the injuries suffered by the victim. Understandably as well, the trial judge used the terms “health” and “safety” interchangeably in his instructions to the jury.

[30] In his instructions on criminal negligence, the trial judge stated:

Your approach to assessing the foreseeability of illegal violence here must proceed, not from the standpoint of what [J.F.] foresaw but, objectively, from the perspective of what a reasonable parent in identical circumstances could foresee. . . . Rather, you must consider whether there was a discernible risk of more than trifling or short-lived bodily harm to the child which a reasonable parent in the like circumstances would have appreciated and taken steps to prevent. [Emphasis added; A.R., at p. 543.]

[31] And, shortly afterward:

If you are satisfied beyond a reasonable doubt that [J.F.] had a duty to protect [K.M.] and that he failed to do it, you must go on to the next question.

Did [J.F.] show a wanton or reckless disregard for the health or safety of [K.M.]?

Crown counsel has to prove beyond a reasonable doubt that the failure of [J.F.] to protect [K.M.] from harm at the hands of [his wife] showed a wanton or reckless disregard for the health or safety of [K.M.].

Criminal negligence requires more than just carelessness. For [J.F.] to be found criminally negligent, his failure to take protective steps on [K.M.’s] behalf must constitute a marked and substantial departure from what a reasonably prudent parent would do in the same circumstances. Crown counsel may prove this in either of two ways: by proving that [J.F.] was aware of a danger or risk to the health or safety of [K.M.] but ignored that risk; or by proving that [J.F.] failed to direct his mind to the risk to the health or safety of [K.M.] which a reasonable parent would have understood.

Crown counsel does not have to prove that [J.F.] knew or foresaw that his failure to take protective steps would result in the death of [K.M.]. If [J.F.]’s failure to act, viewed objectively, constitutes a marked and substantial departure from what we expect of a reasonably prudent parent in the same circumstances, criminal negligence has been established whether or not [J.F.] recognized the risk to the health or safety of [K.M.]. [Emphasis added; A.R., at pp. 545-46.]

[32] In his instructions on failing to provide the necessaries of life, the trial judge instructed the jury that the Crown is required to prove that the failure of the accused to provide the necessaries of life was a marked departure from what a reasonable parent would do in the same circumstances. He proceeded to explain that the Crown could do so in either of two ways: “by proving that [J.F.] was aware of a danger or risk to the health or safety of [K.M.] but ignored that risk; or by proving that [J.F.] failed to direct his mind to the risk to the health or safety of [K.M.] which a reasonable parent would have understood” (A.R., at p. 603 (emphasis added)).

[33] Neither counsel objected to these instructions.

[34] Finally, in imposing sentence, the trial judge observed that the jury necessarily found that the accused “was aware of the risk to the health or safety of [K.M.] from his wife’s conduct but ignored that risk, or alternatively, he failed to direct his mind to the risk to the health or safety of the child that a reasonable parent would have understood” (A.R., at p. 641 (emphasis added)).

[35] In these circumstances, I am persuaded that the “operative statutory distinctions” advanced by the Crown on this appeal were hardly “operative” at all. Neither explains satisfactorily the inconsistent verdicts at trial.

V

[36] In Tutton, speaking for the Court on the relationship between criminal negligence and failure to provide necessaries, McIntyre J. explained the appropriate analytical framework in the clearest of terms. Justice McIntyre’s reasons, framed in accordance with the wording of the indictment in that case, are nonetheless applicable to the present appeal:

The task of a trial judge charging a jury in these circumstances would be difficult and, in my view, it would be necessary to keep clearly separate the two offences or the elements of the two offences which must be dealt with. This could be achieved by approaching the charge in two steps. The first step, I suggest, would be to deal with the underlying offence in s. 197(2) [now s. 215] of the Code, for under this indictment until this question is settled no approach can be made to the crime of manslaughter actually charged. The jury should be instructed on the elements of the offence under s. 197 and told that for a conviction under that section they must be satisfied beyond a reasonable doubt that the appellants were under a duty to provide necessaries of life to their son, and that they failed to do so without lawful excuse. If they were not so satisfied, they would acquit the accused and go no further, for the sole basis of the manslaughter allegation would be gone. If, however, they were to find that the accused had failed to provide the necessaries without lawful excuse, then it would be necessary for them to go further and consider whether in such failure they had shown a wanton and reckless disregard for the life and safety of their son. If the jury were satisfied beyond a reasonable doubt that such conduct had been shown and that it had caused the death of the child, they would be obligated to convict of manslaughter, and on this indictment that is the only way a conviction of manslaughter could be reached. If, on the other hand, the jury were not so satisfied, they would be required to acquit the accused of the crime of manslaughter. If, however, they were satisfied that the necessaries of life had been withheld but in doubt as to whether the deprivation was the cause of the son’s death, they could in that case convict of the included offence under s. 197 . . . . [Emphasis added; pp. 1427-28.]

[37] I agree with McIntyre J. that where criminal negligence is “piggy-backed” onto an alleged failure to provide the necessaries of life — as it was explicitly in Tutton and, in effect, here as well — the analysis may be expected to proceed in two stages. The jury would then consider whether the accused had a duty to protect the child — that is, to provide the necessaries of life — and whether the accused failed in that duty. If so, the jury would be entitled to find that the accused committed an offence under s. 215(2)(a)(ii). The jury would then be required to decide whether the accused, in failing to provide the necessaries of life, showed a wanton or reckless disregard for the life or safety of the child. If so, the jury would be bound to find the accused guilty of criminal negligence. If not, the jury could still find the accused guilty of failure to provide the necessaries of life, but not of criminal negligence.

VI

[38] For all of these reasons, I agree with the majority in the Court of Appeal that the verdicts rendered at trial are inconsistent and that the respondent’s conviction of manslaughter by criminal negligence must therefore be quashed.

[39] Unlike the Court of Appeal, however, I would not order a new trial. In an appropriate case, of which this is not one, a new trial may well be ordered where the verdicts at first instance are found to be inconsistent.

[40] Here, the respondent was found not to have committed manslaughter by failing to provide the necessaries of life. His conviction of manslaughter by criminal negligence could only be supported on a new trial upon a finding, contrary to the jury’s conclusion in this case, that the respondent did in fact fail in his duty to protect his child, the “necessar[y] of life” that was the factual foundation and the gravamen of both counts.

[41] The respondent’s acquittal was not appealed. To order a new trial in these circumstances would deprive the respondent of the benefit of that acquittal, now final, and expose him on the new trial to a finding that he did in fact commit the offence of which he was acquitted, definitively, by the jury in this case.

[42] In the result, I would affirm the order of the Court of Appeal setting aside the respondent’s conviction; dismiss the Crown’s appeal against that order; and allow the respondent’s cross-appeal against the subsidiary order of the Court of Appeal directing a new trial on the charge of manslaughter by criminal negligence and order that an acquittal be entered instead.

The following are the reasons delivered by

[43] Deschamps J. (dissenting) — This appeal raises questions about the nature of the enquiry a court of appeal should conduct when an appellant contends that two verdicts are inconsistent. In considering such an argument, the court of appeal must determine whether the verdict appealed from is “unreasonable” (s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46) because it “tends to indicate that the jury must have been confused as to the evidence or must have reached some sort of unjustifiable compromise” (R. v. McShannock (1980), 1980 2973 (ON CA), 55 C.C.C. (2d) 53 (Ont. C.A.), at p. 56, approved in R. v. Pittiman, [2006] 1 S.C.R. 381, 2006 SCC 9, at para. 7). I have read the reasons of my colleague Fish J. and, with respect, I cannot agree with his approach, which broadens the rule and creates a new but ill‑defined notion of inconsistent verdicts. I would allow the appeal and restore the conviction.

[44] K.M. was four years old when he died of injuries suffered in the foster home he had been living in for two months. His foster parents were charged. The foster mother, V.F., pleaded guilty to manslaughter. J.F., her husband, was charged with manslaughter by criminal negligence and manslaughter by failing to provide the necessaries of life. He was convicted on the count of criminal negligence and acquitted of the one of failing to provide the necessaries of life. The issue in this Court is whether these are inconsistent verdicts.

1. Facts and Judicial History

[45] K.M. came into the care of the foster home on April 15, 2000. Soon after, on May 2, nurse Michelle De Coene conducted a physical examination of the child. The purpose of this examination was to document any injuries, determine whether any care was needed, and comment on the child’s immunization status. During her examination, Ms. De Coene noticed nothing unusual — K.M. had no bruising, scrapes or cuts, his abdomen was soft, and he showed no indication of soreness or tenderness.

[46] On May 19, R.G., a friend of the foster mother, noticed a bruise in the middle of K.M.’s forehead, marks on his chin and scratches on the top of his head. She was surprised when she saw the scratches, because she had seen none like them on children before, and she drew her sister’s attention to them. However, the thought that K.M.’s foster mother was mistreating him did not occur to her.

[47] Sometime in the month before K.M.’s death, L.K., also a friend of the foster mother, noticed a large bruise on his eye that extended across his face from one cheek to the other. However, L.K. saw K.M. at his home about one week before his death and did not notice any injuries.

[48] J.F.’s mother, Jean F., said that K.M. had visited her home fewer than 10 times during the two months he lived with her son. She testified that her husband had bought K.M. a bicycle and that K.M. had fallen off the bike several times. She had not seen many bruises on K.M., nor had she ever seen either of the foster parents strike him. Jean F. did not really see K.M. during her last visit to the house before his death.

[49] Approximately one week before K.M.’s death, J.K., the foster mother of K.M.’s biological sister, noted that his behaviour was different. She testified that he was acting “scared”. However, K.M. had visited her home twice, and she had not seen any injuries on him.

[50] Three days before K.M.’s death, L.K. and another friend went shopping with the foster mother and K.M. They heard the foster mother call K.M. “stupid”, which L.K. testified was unusual because she did not normally speak to people like that. The other woman heard the foster mother yell at the child again when they returned to the residence.

[51] On Tuesday, June 20, J.F. was home the morning his wife inflicted the wounds that caused K.M.’s death. He told the police that he was sleeping when the injuries occurred and awoke only when his wife came running into the room holding the child, saying that he was not breathing properly. This account of the morning’s events differed from what he told the Chief of the First Nation Territory of Sandy Lake (that his wife came in to tell something was wrong with the child, whom he found in another room), his mother (that he found the child on the floor), and a friend, D.K. (that he heard a bang and saw the child lying on the floor).

[52] J.F. took K.M. to the local nursing station. When they arrived, the child was not breathing and had no pulse. The nurse, Ms. De Coene, observed that “he had bruises all over his body, to his face, his neck . . . his arms and his legs”. She testified that he had an abrasion on his neck, blueness around his lips, lacerations on his chin, a slightly infected wound at the top of his foot, a swollen nose and dried blood in his right nostril, and that his foreskin was scraped and swollen. She added that she had never before seen a child in this condition and that she was “shocked by the number of bruises” he had.

[53] Despite efforts to save him, K.M. died shortly after arriving at the nursing station.

[54] The cause of death was determined to be multiple blunt traumas to the head. The interval between K.M.’s fatal injuries and his death was between two and three hours. In addition to the multiple blunt traumas to his head, he suffered haemorrhaging in the small bowel. This was caused by the application of significant force. An expert testified that within 10 minutes of suffering these types of injuries, the child would have been crying, his level of consciousness would have been affected, he might have had a seizure and he may have vomited.

[55] The police investigation into K.M.’s death revealed that his blood was on two towels, his bed sheet, a comforter, the wall of his bedroom, the wall of the master bedroom and the bathroom floor. The police also found a child’s t-shirt that was stained and smelled of vomit. There was an indentation in the bathroom wall with several cracks at approximately K.M.’s height. One of his hairs was found imbedded in the cracks, along with traces of his blood. Three knives were found in the bathroom.

[56] J.F. gave three statements to the police — one on the day K.M. died and two the following day. In his third statement, J.F. told the police that on the night before K.M.’s death, he had seen multiple bruises on the child’s legs, arms and chest and a “scratch” on his penis. J.F. said that he had asked K.M. where he got the scratch, and that K.M. told him the family puppy had bitten his penis. J.F. then asked K.M. to show him where he was hurting, and the child indicated his thighs, chest, arms and the back of his head. J.F. felt the back of K.M.’s head and noted that it felt swollen. K.M. told him that he got the bump by falling off his bike. J.F. also indicated that on the Thursday before K.M.’s death, he had seen bruises on his body but no mark on his penis (A.R., at p. 244).

[57] Both J.F. and his wife were charged in relation to the death. J.F.’s wife admitted to having inflicted the blunt trauma that caused K.M.’s death and pleaded guilty to manslaughter. J.F. was charged, in a single indictment, with two counts of manslaughter, the first by criminal negligence under s. 219 of the Criminal Code and the second by the unlawful act of failing to provide the necessaries of life under s. 215 of the Code. A jury convicted him of manslaughter by criminal negligence and acquitted him of manslaughter by failing to provide the necessaries of life. J.F. appealed his conviction.

[58] The Ontario Court of Appeal overturned the conviction and ordered a new trial ((2007), 226 O.A.C. 119, 2007 ONCA 500). MacFarland J.A., writing for the majority, held that the two verdicts were inconsistent and irreconcilable. Lang J.A., in dissent, found the verdicts to be consistent in light of the qualitative differences between the two offences and the trial judge’s instructions to the jury. The Crown appeals to this Court on the basis that the majority of the Court of Appeal for Ontario erred in law by concluding that the verdicts were inconsistent. J.F. cross-appeals and argues that an acquittal ought to have been entered instead of a new trial being ordered.

2. Analysis

2.1 Inconsistent Verdicts: Pittiman

[59] The controlling issue in the present appeal is whether the verdicts are inconsistent. The law was recently reviewed in Pittiman. Charron J. explained, at paras. 6-7:

A court of appeal’s power to set aside a verdict of guilt on the ground that it is inconsistent is found under s. 686(1)(a)(i) of the Criminal Code which provides that the court “may allow the appeal where it is of the opinion that . . . the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence”. This Court has the power to make the same order under s. 695(1). Hence, before an appellate court may interfere with a verdict on the ground that it is inconsistent, the court must find that the verdict is unreasonable. The appellant bears the onus to show that no reasonable jury whose members had applied their minds to the evidence could have arrived at that conclusion: R. v. McLaughlin (1974), 1974 748 (ON CA), 15 C.C.C. (2d) 562 (Ont. C.A.).

The onus of establishing that a verdict is unreasonable on the basis of inconsistency with other verdicts is a difficult one to meet because the jury, as the sole judge of the facts, has a very wide latitude in its assessment of the evidence. The jury is entitled to accept or reject some, all or none of any witness’s testimony. Indeed, individual members of the jury need not take the same view of the evidence so long as the ultimate verdict is unanimous. Similarly, the jury is not bound by the theories advanced by either the Crown or the defence. The question is whether the verdicts are supportable on any theory of the evidence consistent with the legal instructions given by the trial judge. Martin J.A. aptly described the nature of the inquiry in R. v. McShannock (1980), 1980 2973 (ON CA), 55 C.C.C. (2d) 53 (Ont. C.A.), at p. 56, as follows:

Where on any realistic view of the evidence, the verdicts cannot be reconciled on any rational or logical basis the illogicality of the verdict tends to indicate that the jury must have been confused as to the evidence or must have reached some sort of unjustifiable compromise. We would, on the ground that the verdict is unreasonable alone, allow the appeal, set aside the verdict, and direct an acquittal to be entered.

(Emphasis added; emphasis in original deleted.)

[60] As can be seen from Martin J.A.’s reasons in McShannock, the scope of the notion of inconsistent verdicts has, until now, been seen to be narrow. This notion has been confined to instances where the reviewing court finds that the jury must have been confused or must have reached some sort of unjustifiable compromise. In Pittiman, this Court did not depart from this narrow view. In Fish J.’s reasons, the notion is extended to cases where a clear explanation for the verdicts is found in the record.

[61] After outlining the law as it relates to the offences for which J.F. was charged, I will explain why J.F. has not met the onus of proving that the verdicts were inconsistent.

2.2 Alleged Offences

[62] The indictment laying out the charges against J.F. read as follows:

. . . that

[J.F.] between the 15^th day of April 2000, and the 20^th day of June 2000 . . . did unlawfully cause the death of [K.M.] by criminal negligence and did thereby commit manslaughter, contrary to Section 236(b) of the Criminal Code of Canada.

And further that

[J.F.] between the 15^th day of April 2000, and the 20^th day of June 2000 . . . did unlawfully cause the death of [K.M.] by means of an unlawful act, to wit failing to provide the necessaries of life to [K.M.], and did thereby commit manslaughter, contrary to Section 236(b) of the Criminal Code of Canada.

J.F. was thus charged with two counts of manslaughter, the first by criminal negligence under s. 219 of the Criminal Code and the second by the unlawful act of failing to provide the necessaries of life under s. 215.

[63] The relevant provisions of the Criminal Code are:

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; or

219. (1) Every one is criminally negligent who

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, “duty” means a duty imposed by law.

222. . . .

(5) A person commits culpable homicide when he causes the death of a human being,

(a) by means of an unlawful act;

(b) by criminal negligence;

234. Culpable homicide that is not murder or infanticide is manslaughter.

235. Every person who commits manslaughter is guilty of an indictable offence and liable

(b) in any other case, to imprisonment for life.

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

[65] The underlying premise for finding fault in respect of a negligence-based offence lies in the “failure to direct the mind to a risk [of harm] which the reasonable person would have appreciated” (R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3, at p. 58). However, the fault element is in large part premised on the actus reus. Indeed, the inquiry into the actus reus entails an objective assessment of the specific risk of harm at issue. The judge will determine what the specific risk is by looking at the words of the statute. For example, for the purposes of various Criminal Code offences, the risk of harm can be defined as “in a manner that is dangerous to the public” (s. 249(1)(a)), “in a careless manner or without reasonable precautions for the safety of other persons” (s. 86(1)), “shows . . . disregard for the lives or safety of other persons” (s. 219(1)), or “endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently” (s. 215(2)(a)(ii)). The risk of harm is therefore generally set out in the statutory description of the actus reus.

[66] The actus reus of failing to provide the necessaries of life will be established if it is proved (1) that the accused was under a legal duty to provide the necessaries of life to the person in question pursuant to s. 215(1)(a); (2) that, from an objective standpoint, he or she failed to perform the duty; and (3) that, again from an objective standpoint, this failure endangered the life of the person to whom the duty was owed, or caused or was likely to cause the health of that person to be endangered permanently. Following Charron J.’s reasoning in R. v. Beatty, [2008] 1 S.C.R. 49, 2008 SCC 5, the marked departure standard is not applied at this point, since “[n]othing is gained by adding to the words of [the statute] at this stage of the analysis” (para. 45).

[67] The mens rea of failing to provide the necessaries of life will be established if it is proved that the conduct of the accused represented a marked departure from the conduct of a reasonable parent, foster parent, guardian or family head in the same circumstances. The conduct must represent a marked departure because, as Lamer C.J. indicated: “Unlike negligence under civil law, which is concerned with the apportionment of loss, penal negligence is concerned with the punishment of moral blameworthiness” (R. v. Gosset, 1993 62 (SCC), [1993] 3 S.C.R. 76, at p. 93). As Charron J. stated: “The degree of negligence is the determinative question because criminal fault must be based on conduct that merits punishment” (Beatty, at para. 35). Thus, “penal negligence punishes a marked departure from an objectively reasonable standard of care” (R. v. Naglik, 1993 64 (SCC), [1993] 3 S.C.R. 122, at p. 142 (emphasis in original)).

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

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

2.3 Judge’s Instructions on Type of Harm

[70] In his charge to the jury, the trial judge set out the essential elements of each offence as follows (for the purposes of the analysis, I have divided his instructions on criminal negligence into steps to parallel the steps he used in discussing the count of failing to provide the necessaries of life):

Criminal Negligence

For the Crown to establish criminal negligence causing death, Crown counsel must prove each of the following essential elements beyond a reasonable doubt: that [J.F.] failed to take proper steps to protect [K.M.] [Step 1]; that in failing to take proper steps to protect [K.M.], [J.F.] showed a wanton or reckless disregard for the safety of [K.M.] [Step 2]; that [J.F.]’s failure to take proper steps caused [K.M.]’s death [Step 4]. [A.R., at pp. 541-42]

Failing to Provide

the Necessaries of Life

For you to find [J.F.] guilty on count 2, Crown counsel must prove each of the following essential elements beyond a reasonable doubt: That [J.F.] owed a legal duty to provide the necessaries of life to [K.M.] and that [J.F.] failed in that duty [Step 1]; (2) that in failing to provide the necessaries of life to [K.M.], [J.F.] showed a marked departure from the conduct of a reasonably prudent parent in the same circumstances [Step 2]; (3) that in failing to provide the necessaries of life, [J.F.] endangered the life of [K.M.], or caused or was likely to cause his health to be permanently endangered [Step 3]; (4) that such failure caused the death of [K.M.] [Step 4]. [A.R., at pp. 600-601]

[71] The trial judge then explained the essential elements of each offence separately. On Step 2, his instructions to the jury on the two counts were almost identical after the second paragraph:

Criminal Negligence

Step 2

Crown counsel has to prove beyond a reasonable doubt that the failure of [J.F.] to protect [K.M.] from harm at the hands of [V.F.] showed a wanton or reckless disregard for the health or safety of [K.M.].

Wanton disregard means heedless disregard for the consequences of your failure to act. Reckless means showing indifference to the consequences of your failure to act.Criminal negligence requires more than just carelessness. For [J.F.] to be found criminally negligent, his failure to take protective steps on [K.M.]’s behalf must constitute a marked and substantial departure from what a reasonably prudent parent would do in the same circumstances. Crown counsel may prove this in either of two ways: by proving that [J.F.] was aware of a danger or risk to the health or safety of [K.M.] but ignored that risk; or by proving that [J.F.] failed to direct his mind to the risk to the health or safety of [K.M.] which a reasonable parent would have understood.

Crown counsel does not have to prove both. It is enough for Crown counsel to prove one or the other. Nor does everyone have to agree on which one Crown counsel has proven, as long as each of you is satisfied that one or the other of them has been proven beyond a reasonable doubt.

Crown counsel does not have to prove that [J.F.] knew or foresaw that his failure to take protective steps would result in the death of [K.M.]. If [J.F.]’s failure to act, viewed objectively, constitutes a marked and substantial departure from what we expect of a reasonably prudent parent in the same circumstances, criminal negligence has been established whether or not [J.F.] recognized the risk to the health or safety of [K.M.].

Your review of the trial evidence respecting the second essential element of this offence should also be broadly based. The circumstances, as you find them to be, will emerge from a distillation of the details. Your review will include external marks of violence on the person of [K.M.], your assessment of when they occurred, how visible they were to a person in the position of a parent, the behaviour of [V.F.], the statements of [J.F.], to name a few. You will look to see whether or not a pattern emerges. You will be interested in exploring whether and, if so, when, the extent of injury or its frequency, severity, repetition, or apparent cause reaches a critical mass that, when objectively considered, would elevate the concern of a parent in the same position, and whether, depending on your findings, a reasonably prudent parent would take prophylactic or protective steps. Your task in deciding this question is made more complex because a great number of the injuries to [K.M.] may have their origin closer to the end of [K.M.]’s life. The fact that analysis is difficult, however, should not deter you from it. [Emphasis added; A.R., at pp. 545-47.]

Failing to Provide

the Necessaries of Life

Step 2

If you are satisfied beyond a reasonable doubt that [J.F.] failed to fulfill the duty to provide the necessaries of life required by the circumstances, you must go on to the next question.

In failing to provide the necessaries of life to [K.M.], did [J.F.] show a marked departure from the conduct of a reasonable parent in the same circumstances?

Criminal liability requires more than just carelessness. Crown counsel has to prove beyond a reasonable doubt that [J.F.]’s failure to provide the necessaries of life in this case was a marked and substantial departure from what a reasonable parent would do in the same circumstances. Crown counsel may do so in two ways: by proving that [J.F.] was aware of a danger or risk to the health or safety of [K.M.] but ignored that risk; or by proving that [J.F.] failed to direct his mind to the risk to the health or safety of [K.M.] which a reasonable parent would have understood.

Crown counsel does not have to prove both. It is enough for Crown counsel to prove one or the other. Nor does everyone have to agree on which one Crown counsel has proven, as long as each of you is satisfied that one or the other of them has been satisfied, has been proven beyond a reasonable doubt.

Crown counsel does not have to prove that [J.F.] knew or foresaw that his failure to provide the necessaries of life would result in the death of [K.M.]. If [J.F.]’s failure to fulfill the duty, viewed objectively, constitutes a marked and substantial departure from what we expect of a reasonable parent in the same circumstances, then it is immaterial whether [J.F.] failed to recognize that risk to the health or safety of [K.M.].

Your review of the trial evidence respecting the second essential element of this offence should be broadly based. The circumstances, as you find them to be, will emerge from a distillation of the details. Your review will include external marks of violence on the person of [K.M.], your assessment of when they occurred, how visible they were to a person in the position of a parent, the behaviour of [V.F.], the statements of [J.F.], to name a few. You will look to see whether or not a pattern emerges. You will be interested in exploring whether and, if so, when, the extent of injury or its frequency, severity, repetition, or apparent cause reaches a critical mass that, when objectively considered, would elevate the concern of a reasonable parent in the same position, and whether, depending on your findings, a reasonable parent would take prophylactic or protective steps. Your task in deciding this question is made more complex because a great number of the injuries to [K.M.] may have their origin closer to the end of [K.M.]’s life. The fact that analysis is difficult, however, should not deter you from it. [Emphasis added; A.R., at pp. 602-5.]

Thus, the above passages show that the trial judge explained Step 2 to the jury in almost identical terms for the two offences.

[72] More specifically, with regard to the offence of failing to provide the necessaries of life, although the trial judge indicated that the Crown had to show a marked departure from the conduct of a reasonable parent in the same circumstances, he actually went on to instruct the jury that “Crown counsel has to prove beyond a reasonable doubt that [J.F.]’s failure to provide the necessaries of life in this case was a marked and substantial departure from what a reasonable parent would do in the same circumstances.” After this instruction, the charge to the jury was essentially identical to the charge for criminal negligence.

[73] The identical instructions at Step 2 meant that there was a common denominator for the two offences. As a result, a reasonable jury would have understood that on both counts, it had to find that J.F.’s conduct represented a marked and substantial departure from what a reasonable parent would do in the circumstances. But the jury’s work did not stop at Step 2.

[74] For the offence of failing to provide the necessaries of life, the jury was also expressly instructed, at Step 3, to consider another type of harm beyond the one the judge described as common to both offences at Step 2:

If you are satisfied that in failing to provide the necessaries of life to [K.M.], [J.F.] showed a marked departure from the conduct of a reasonable parent in the same circumstances, you must go on to consider the next question.

Did [J.F.]’s failure to provide the necessaries of life endanger the life of [K.M.]? Did it cause or was it likely to cause his health to be endangered permanently?

Crown counsel has to prove beyond a reasonable doubt the failure of [J.F.] to provide the necessaries of life required of him in the circumstances either endangered the life of [K.M.] or caused or was likely to cause his health to be permanently endangered. Crown counsel need not prove both.

Your approach to assessing the foreseeability of endangerment to the life of [K.M.] or the foreseeability of likely permanent endangerment to his health must proceed, not from the standpoint of what [J.] foresaw, what [J.F.] foresaw but, objectively, from the perspective of what a reasonable parent in identical circumstances could foresee. Was it objectively foreseeable that the failure to provide [the] necessaries of life would lead to a risk of danger to life, or a risk of permanent endangerment [to] the health of [K.M.]?

Again, you must canvass the trial evidence in your consideration of this question.

If Crown counsel has not satisfied you beyond a reasonable doubt that, by his failure to provide the necessaries of life, [J.F.] endangered the life of [K.M.], or caused or was likely to cause permanent endangerment to his health, you must find [J.F.] not guilty on count 2. [Emphasis added; A.R., at pp. 605-6.]

[75] Therefore, the jury, as instructed, would have understood that in order to find J.F. guilty of failing to provide the necessaries of life, it had to be satisfied beyond a reasonable doubt that J.F. had failed to direct his mind to the health or safety of K.M. (Step 2) and had endangered K.M.’s life, or caused or likely caused his health to be endangered permanently (Step 3). Thus, the jury was instructed at Step 3 to consider another type of harm beyond the harm that was common to the two offences. This other type of harm was unique to the offence of failing to provide the necessaries of life.

[76] Since the jurors were clearly told that at Step 2 the count of failure to provide the necessaries of life required them to find the same elements as those for criminal negligence, it may be that at that step the trial judge, in discussing the offence of failing to provide the necessaries of life, was pointing to a harm (“to health or safety”) which appeared to be in addition to the harm discussed at Step 3. He further instructed the jury that it needed to be satisfied that the failure to provide the necessaries of life constituted a marked and substantial departure from reasonable behaviour. However, these instructions cannot cast doubt on the conviction for criminal negligence, because the elements in question clearly apply on that count. Nor can they explain the acquittal, because the same instructions were given for both counts and the evidence was found sufficient for the count of criminal negligence. The explanation for the acquittal must thus lie in the differences between the two underlying offences. In my view, two observations make it clear why the conviction is not unreasonable and the two verdicts are not inconsistent. The first is that the judge properly charged the jury on the count of criminal negligence, and the second is that the express instructions on Step 3 (threshold level of harm for the count of failing to provide the necessaries of life) were correct.

[77] The express instructions at Step 2 explain why, in the present case, the jury could find that the Crown had proved beyond a reasonable doubt that J.F. had failed to direct his mind to the risk to the health or safety of K.M., while finding, at Step 3, on the count of failing to provide the necessaries of life, that the Crown had not met its burden of proving beyond a reasonable doubt that the failure to provide the necessaries of life had endangered K.M.’s life, or had caused or likely caused K.M.’s health to be endangered permanently. In my view, the instructions, coupled with the extensive discussion at trial on the bruising on K.M.’s body, make it clear that the verdicts reached by the jury are not inconsistent.

2.4 Review of the Evidence on Bruising

[78] Much of the evidence at trial related to the bruises found on K.M.’s body. For example, during their closing statements, Crown counsel and defence counsel referred specifically to the time line of the bruising:

[Crown counsel]: You heard a great deal of evidence from medical people about old bruises and new bruises and how many were fresh and how many were old, and about the problem of green in the photographs. [A.R., at pp. 491-92]

[Crown counsel]: 1) [K.M.] suffered an extraordinary amount of injury and it didn’t all happen in the last few hours. 2) [J.F.] admits being aware of bruising as far back as the Thursday. [A.R., at p. 495]

[Defence counsel]: You cannot, you cannot, take the solution, the fact that he died, and was beat to death and work backwards to figure out what you would have done in those circumstances or what [J.F.] should have done had he known the result. You can’t work the puzzle backwards. [A.R., at p. 499]

[Defence counsel]: Then [K.M.] comes into the living room to watch TV with his dad while [V.F.] goes to get clean clothes. That’s when she says, “Look at these bruises”. Not life threatening. Not sufficient to call a doctor. You remember the bruises, 90 per cent of them, that you see in those pictures or 80 per cent of them — the doctor said 80 to 90 per cent weren’t there, only 10 or 20 per cent were older bruises. If it’s possible to reduce down the bruises on the body, remember that, and remember that’s what [J.F.] saw. [A.R., at p. 506]

[Defence counsel]: This is not a case of repeated vicious assaults or many trips to a doctor with child with broken arm or broken leg, a broken wrist and a variety of suspicious explanations. It’s not that kind of case. [A.R., at p. 512]

[79] Furthermore, the time line was prominent in the trial judge’s summary of the testimony of several witnesses for the jury:

It is of some significance in that situation to check the physical status of the child. When seen on May 2, 2000, DeCoen noted nothing remarkable about the child’s condition physically. She did not notice any bruising or scrapes on the child. His abdomen was soft. She saw no cuts or lacerations. He didn’t show any soreness or tenderness. She had no concerns for his physical well-being as at that time. [A.R., at pp. 551-52]

Nurse DeCoen said that she had never before seen a child with that degree of bruising. She says that she was “shocked by the number of bruises and their various stages of healing”. She admits that she is not an expert in the aging of bruises, but expressed the opinion that she could tell from the colouring that the bruises were of different ages. She described more recent bruising as being purplish and blue in colour, perhaps with some redness around the edges. She says older bruises are brownish or grey. She described some of the bruising on the child as being older and some fresh, but that the majority of the bruising seemed older. DeCoen did not map or chart the bruises, their location, or their respective descriptions on the body. She conceded on cross-examination that her primary focus was life-saving and not on the bruises. From her experience, most of the bruises appeared to be over 24 hours old. She also believed that some of the bruises appeared to be a couple of days old. [A.R., at p. 553]

Most of the references are to bruises, which Dr. Pan describes as recent bruises or old bruises and in some cases a cluster of recent and old bruises. We do not know the criterion that Dr. Pan used for determining the bruising as “recent” or “old”. [A.R., at p. 556]

Dr. Escott said that nobody knows exactly how long it takes for a bruise to appear. [A.R., at p. 556]

[Dr. Escott] agreed it was possible that two people looking at the same bruise could come to different conclusions as to whether any yellowing was visible. One cannot tell the age of a “recent” bruise just from visualizing it. [A.R., at p. 559]

Dr. Escott noted the “possibility” that all of the “recent” bruises” on [K.M.] were received at the same time or within minutes. Dr. Escott indicated the time span for “recent” bruising to appear could be from 15 minutes to 18 hours. Nevertheless he conceded the possibility that all of the “fresh” bruises could have been inflicted withing 15 minutes. [A.R., at p. 559]

Based on Dr. Escott’s impression from the photographs, he believed that 80 to 90% of the bruising was “recent” bruising. He thought that 10%, perhaps up to 20% of the bruising was “older” bruising. He conceded that the older bruising did not contribute medically to [K.M.]’s death. [A.R., at p. 560]

Dr. Halliday agreed that bruising can occur even when someone is unconscious. He agreed that an unconscious person can vomit; even that a comatose person could vomit. Dr. Halliday agreed that there is a period shortly after death where bruising can appear, usually in the immediate period following death. [A.R., at pp. 564-65]

Dr. Lindsay indicated at the outset that the “aging” of soft tissue injuries is not a precise science. [A.R., at p. 566]

Dr. Lindsay said that, although the aging of bruises presents some difficulties, if one sees two bruises or multiple bruises in the same part of the body, and the colour of the bruises in that cluster differ, one can conclude that the bruises in that cluster are of different ages. She noted that in [K.M.]’s case, there were several areas of multiple bruising and different colouration in the same part of the body. [A.R., at p. 567]

Dr. Lindsay agreed that children and the elderly bruise a little more easily. In children, this stems from the fact that the thickness of their skin is less. Dr. Lindsay did not know if yellow shows up in bruises sooner in children than in adults. The reference to at least 18 hours before yellowing appears comes from the medical literature. She agreed that the aging of bruising is non-specific and that it is possible for two people looking at the same injury to see colour differently. [A.R., at pp. 572-73]

Meekis’s impression of [K.M.] on June 1, 2000 was a child engaged in play, well dressed and ostensibly well cared for, a child whose appearance and circumstances were unremarkable and gave no cause for concern. Mr. Meekis did not say how close he came to [K.M.] nor how long he had the child directly under observation during the visit of June 1, 2000. [A.R., at p. 575]

Jean [F.] notes that [K.M.] never cried from falling off the bike. He just kept going. He didn’t seem to be hurt. She doesn’t know if he got any bruises from falling off the bike. [A.R., at p. 577]

[Jean F.] notes that she had seen one bruise on [K.M.]’s leg on a previous occasion. She saw him twice a week. She remembers [V.F.] showing her only one bruise on the child. Jean [F.] says that most of the time she saw [K.M.] he didn’t have any bruises. [A.R., at pp. 577-78]

During that time [when K.M. lived with his biological parents], [E.L.] also bathed him. She saw no bruising and no marks on [K.M.] at that time. . . . Nevertheless, [E.L.] acknowledged that [K.M.]’s biological parents had alcohol abuse problems and that [K.M.] was being mistreated by them. [A.R., at p. 590]

Approximately one week before [K.M.] died, [L.K.] was visiting and saw [K.M.] on the couch eating an apple. She saw his face at that time. She did not see any injuries on him. Only once previously did she see any injury on him. It was a bruise on his eyes. She cannot recall whether this was two weeks or a month prior to his death, but recalls [V.F.] saying that [K.M.] fell down her sister’s stairs. [A.R., at p. 591]

On the Saturday before his death, [L.K.] was sitting next to [K.M.] in the front seat of the automobile. She saw no marks visible on his face at that time. [A.R., at p. 592]

On cross-examination [D.A.] conceded that she had seen no scratches, bruises or marks on [K.M.] on Saturday, June 17, 2000. She described him as appearing “normal,” except that he was quiet. [A.R., at p. 593]

[J.K.] did not see any injuries on [K.M.]. [A.R., at p. 594]

The accuracy of the photographic images from the morgue is very much in contention. The photographs were examined by all of the medical experts. Their testimony is premised upon the accuracy of the image in the photograph. [A.R., at p. 595]

[R.G.] did not see him fall. When he first arrived at their home on the 19^th, [K.M.] had a bump on his forehead. [V.F.] told her that he got the bump when he fell off his bike. [R.G.] noticed the bruise on his forehead right away. It was light blue in colour. Later she saw scratches at the back of [K.M.]’s head when she cut his hair. She was surprised when she saw the scratches because she had not seen scratches like that on children before, and she drew her sister’s attention to them. [A.R., at p. 597]

[R.G.] saw [K.M.] without his clothing. She does not remember that he had any bruises on him. The thought that [V.F.] was mistreating [K.M.] never occurred to her. The injury that [K.M.] had on his forehead on his arrival she thought typical of injuries that children get. She said it was not something that a parent would seek medical attention for. Nor did she have the impression that [K.M.] should be seen by a doctor. [A.R., at p. 598]

[80] The trial judge also reiterated the issue of the time line of the bruising in summarizing the positions of the Crown and the defence for the jury:

The Crown pointed to what Mr. Ross characterized as an “extraordinary” number of external marks of violence scattered over the person of [K.M.]. The Crown called medical evidence that included, in part, opinion as to the “aging” of the bruises and lacerations, and, in part, opinion that attempted to cast doubt on repeated explanations of accidental cause as the origin of injury. [A.R., at pp. 609-10]

The defence points to the testimony of neighbours, other members of the community and professional child care workers who live in the community who say there was nothing wrong or unusual about the appearance of [K.M.]. [A.R., at p. 611]

The defence points to medical opinion at this trial that confirms the possibility that bruises could form during a period of unconsciousness, or even after death; that the bulk of visible injury could be inflicted within a 15-minute span; that 80-90% of the visible bruising was of recent origin . . . . [A.R., at p. 611]

The defence says that we should not be “Monday morning quaterbacks”; that we cannot take the death of [K.M.] and then work backwards to determine after the fact what might have been done or could have been done. [A.R., at p. 612]

The defence asks you to note that none of the medical doctors called by the Crown actually saw the body of [K.M.] with their own eyes. All rely on photographs which, even if accurate, can lead two different persons to different conclusions about the colour of bruises. The defence, moreover, asks you to conclude that the photographs are, in fact, flawed and that opinions premised on their accuracy or trueness of colour could also be flawed. [A.R., at p. 612]

[81] As the above review of the jury charge indicates, the jury had to consider the theory of the defence that K.M.’s bruises could have been inflicted the night he died and that J.F. might not therefore have been aware of any ongoing abuse. The judge specifically told the jurors that their task in considering J.F.’s failure to act was made “more complex because a great number of the injuries to [K.M.] may have their origin closer to the end of [K.M.]’s life” (A.R., at pp. 547 and 605). The time line of the bruising was therefore a crucial factual issue that the jury needed to resolve. The way the jury chose to resolve this issue may well explain the verdicts in the present case.

2.5 Why the Verdicts Are Not Inconsistent

[82] To determine whether the verdicts are inconsistent, it will be helpful to review some of the evidence. R.G. testified that in mid-May she had seen a bruise in the middle of K.M.’s forehead, marks on his chin and scratches on the top of his head. L.K. indicated that sometime in the month before K.M.’s death she had seen a large bruise on his eye that extended across his face from one cheek to the other. Jean F. said she had seen some bruising. J.F. admitted that he had seen multiple bruises on K.M.’s legs, arms and chest, and a “scratch” on his penis. Finally, at the time of K.M.’s death, his body was covered with bruises.

[83] The jury heard expert evidence explaining how bruises are formed, what their colour is and how long they last. The jury also heard expert testimony that 80 to 90 percent of the bruising on K.M.’s body could have been of recent origin. In light of this evidence, the jury could have believed that most of the bruising was inflicted the night of K.M.’s death. If it believed this, the jury would have had to rely on the injuries described by R.G., L.K., Jean F. and J.F. in order to determine whether the Crown had proved its case beyond a reasonable doubt.

[84] As I mentioned above, the jury, as instructed, would have understood that in order to find J.F. guilty of failing to provide the necessaries of life, it had to be satisfied beyond a reasonable doubt that J.F. had failed to direct his mind to the health or safety of K.M. and had endangered K.M.’s life, or had caused or likely caused his health to be endangered permanently. However, a finding by the jury that J.F. had failed to direct his mind to the health or safety of K.M. would not necessarily imply that his health was also endangered permanently. I agree with Lang J.A., who explained this as follows in dissent:

“Safety”, as commonly understood, would include risk of injury of any kind, including the bruising and the laceration to the penis that were identified on K.M.’s body. In contrast, “health” refers more often to the general condition of the body reflected in the expressions that one is in “good health” or “poor health”. Moreover, to have one’s health “permanently endangered” imports an element of a condition that is indefinite in duration. The jury was entitled to conclude that there was a difference between K.M.’s “safety” and permanent endangerment to his health.

On the evidence in this case, it was open to the jury to conclude that bruising, even extensive bruising, was not likely to permanently endanger K.M.’s health — at least his physical health — but that the bruising was sufficiently extensive to suggest child abuse of a nature to alert [J.F.] that K.M.’s safety was at risk and he was reckless in ignoring that risk. [paras. 26-27]

[85] In my view, the evidence presented at trial on the time line of the bruising left it open to the jury to find that J.F.’s conduct constituted a marked and substantial departure from what a reasonable parent would do in the circumstances and that the Crown had proved beyond a reasonable doubt that J.F. was aware of the risk to the health or safety of K.M. or had failed to direct his mind to this risk, while at the same time finding that the Crown had not met its burden of proving beyond a reasonable doubt that the failure to provide the necessaries of life had endangered K.M.’s life, or had caused or likely caused K.M.’s health to be endangered permanently. The nature and extent of the injuries and the time when J.F. became aware of them were matters for the jury to decide.

[86] The jury was clearly instructed that the reasonable doubt standard applies to the type of harm that is unique to the offence of failing to provide the necessaries of life and is one of the essential elements of that offence:

If Crown counsel has not satisfied you beyond a reasonable doubt that, by his failure to provide the necessaries of life, [J.F.] endangered the life of [K.M.], or caused or was likely to cause permanent endangerment to his health, you must find [J.F.] not guilty on count 2. [A.R., at p. 606]

It was also explained to the jury at the beginning of the charge that “[a] reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence” (A.R., at p. 525). In light of the evidence relating to the bruising, the theory of the defence, and the difference between the expressions “safety” and “permanent endangerment to health”, it was open to the jury to find a reasonable doubt on the count of failure to provide the necessaries of life, while at the same time finding that all the elements of the offence of criminal negligence had been proved beyond a reasonable doubt.

[87] My conclusion is further supported by the fact that the jury was specifically instructed that the two counts concerned separate offences and had to be distinguished:

Count 1 [criminal negligence] and count 2 [failing to provide the necessaries of life] are similar offences. Indeed, the evidence that applies to them is similar, and your approach to considering them is likely to be similar. Nevertheless, I must instruct you that they are separate offences. You must, accordingly, give separate consideration and separate verdicts on each of them. You must take the law on each as I give it to you. [A.R., at pp. 535-36]

In counts 1 and 2 the Crown separately alleges that [J.F.] is criminally responsible in the death of [K.M.]. [A.R., at p. 537]

In your consideration of the evidence on each count you will consider all of the relevant circumstances as you find them to be. [A.R., at p. 537]

On count 1 you can return a verdict of “guilty” or “not guilty.” . . . [O]n count 2 you can return a verdict of “guilty” or “not guilty.” [A.R., at pp. 620 and 630]

Since it was made clear to the jurors that the offences were distinct and required separate consideration and separate verdicts, it is likely that the jury followed the instructions and conducted a separate assessment to determine whether the Crown had proved beyond a reasonable doubt that J.F.’s failure to provide the necessaries of life had endangered K.M.’s life or had caused or was likely to cause K.M.’s health to be endangered permanently.

[88] The question is whether the verdicts are supportable on any interpretation of the evidence that is consistent with the instructions given by the trial judge (Pittiman, at para. 7). In my view, they are. Although a different jury might have concluded on the facts of this case that the bruising sustained by K.M. was sufficiently extensive to permanently endanger his health, the evidence also supports a finding by the jury that this had not been proved beyond a reasonable doubt. It must be borne in mind that the “function of the court is not to substitute itself for the jury, but to decide whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered” (Corbett v. The Queen, 1973 199 (SCC), [1975] 2 S.C.R. 275, at p. 282, cited in R. v. François, 1994 52 (SCC), [1994] 2 S.C.R. 827, at p. 835).

[89] My colleague Fish J. and I take different views on the relationship between the offence of failing to provide the necessaries of life and the offence of criminal negligence.

[90] I respectfully disagree with my colleague’s comments on the level of blame relative to each offence. It may be unusual that a jury can find a person guilty of an offence which carries a harsher penalty, while acquitting him or her on a charge which carries a lighter one. However, moral blameworthiness cannot be assessed in the abstract. A parent who lets a child starve may be more blameworthy than one who puts a child at risk by leaving him or her in a car while shopping. In any case, moral blameworthiness is not determinative when it comes to the application of the rule against inconsistent verdicts.

[91] My colleague writes that “the jury was required to answer essentially the same question in determining whether the respondent was guilty of manslaughter under either count” (para. 4 (emphasis deleted)). This assertion is not consistent with either the elements of the distinct underlying offences or the instructions to the jury. In his charge to the jury, the trial judge set out the essential elements of the offences in such a way that the jury did not answer the same question for both of them. This was especially true on the issue of the type of harm specific to the offence of failing to provide the necessaries of life. And it must be remembered that the jury was specifically instructed to “give separate consideration and separate verdicts” on each count.

[92] My colleague adds that, when convicting an accused of both criminal negligence and a lesser offence, courts consistently enter a stay on the lesser offence. This argument is not germane to the question of the unreasonableness of a verdict, and it requires a demonstration either that the rule against multiple convictions applies or that the offence of failure to provide the necessaries of life in issue in this case was a lesser offence and was included in the offence of criminal negligence. No such demonstration has been made here.

[93] It is true that J.F. was charged with two counts of manslaughter, but manslaughter is an offence which is committed only insofar as an underlying illegal act is committed and death results from that act. In this case, each count was based on a different underlying illegal act. It is very easy to imagine a case where someone charged with two counts of manslaughter would be convicted on one count and acquitted on the other without the verdicts being unreasonable or incompatible. Kienapple v. The Queen, 1974 14 (SCC), [1975] 1 S.C.R. 729, stands for the proposition, as refined in R. v. Prince, 1986 40 (SCC), [1986] 2 S.C.R. 480, that convictions are not to be entered on more than one count if the offences share a close factual connection and a close legal nexus, even if the accused is guilty beyond a reasonable doubt of both offences. The rule in Kienapple should not be used in such a way that no conviction is entered at all.

[94] Moreover, the Kienapple rule is narrow. It has been held not to apply to the following pairs of offences: attempted armed robbery and use of a firearm while attempting to commit an indictable offence (Krug v. The Queen, 1985 2 (SCC), [1985] 2 S.C.R. 255), impaired driving causing bodily harm and criminal negligence causing bodily harm (R. v. Andrew (1990), 1990 11057 (BC CA), 57 C.C.C. (3d) 301 (B.C.C.A.)), and use of a firearm while attempting to commit an indictable offence and aggravated assault (R. v. Switzer (1987), 1987 ABCA 23, 32 C.C.C. (3d) 303 (Alta. C.A.)). In his reasons, Fish J. implicitly extends the rule against multiple convictions to a case where there was only one conviction and clearly extends the rule against inconsistent verdicts in directing a reviewing court to weigh the relative degree of blameworthiness when a jury enters different verdicts.

[95] Even if I were to agree that the verdict is unreasonable, I would disagree on the remedy. My colleague relies on the fact that the Crown did not appeal the acquittal on the charge of failure to provide the necessaries of life (para. 23). However, such an appeal is not necessary in this case. In R. v. Provo, 1989 71 (SCC), [1989] 2 S.C.R. 3, the accused was charged with incest and sexual assault. The trial judge found him guilty beyond a reasonable doubt on both counts, but acquitted him of sexual assault on the basis of Kienapple. The accused appealed his conviction and the Crown did not appeal the acquittal. The Manitoba Court of Appeal found that the accused was guilty beyond a reasonable doubt of sexual assault, but not of incest. It convicted him of sexual assault even though the Crown had not appealed the acquittal, and acquitted him of incest. This Court unanimously upheld the Court of Appeal’s decision on the basis of s. 613(8) (now s. 686(8)) of the Criminal Code, which empowers an appeal court to make any order that justice requires. Where, as in Provo, the Crown does not appeal an acquittal, a court of appeal which finds defects in the conviction and in the jury charge which led to the acquittal should not be deprived of this power to “make any order, in addition, that justice requires” (s. 686(8) of the Code). In the instant case, had I found the verdict unreasonable, the just order would have been a new trial on both counts.

[96] I also disagree with Fish J.’s assertion that the differences between the underlying offences were “of little relevance on the facts of this case” (para. 5). All the evidence presented at trial on the time line of the bruising, which was summarized at length by the trial judge in his charge to the jury, suggests that the differences were very relevant.

[97] I also take issue with my colleague’s comment that the distinction between the two offences was not “specifically explained by the judge in his charge to the jury” (para. 5) and “was at no time raised by either side throughout the entire course of the trial” (para. 27 (emphasis deleted)). On the contrary, the judge specifically laid out in detail the essential elements of each offence. Regarding the offence of failing to provide the necessaries of life, he expressly explained that “Crown counsel has to prove beyond a reasonable doubt the failure of [J.F.] to provide the necessaries of life required of him in the circumstances either endangered the life of [K.M.] or caused or was likely to cause his health to be permanently endangered.” In my view, this instruction could do nothing but draw the jury’s attention to the difference between the two offences, and there is no reason to believe that the jury did not understand. My colleague’s approach can be explained only by a failure to acknowledge that while the judge made no distinction between the offences as regards the standard of conduct (marked and substantial departure) and the risk (to health or safety), he correctly drew the jurors’ attention to an additional element required to prove the failure to provide the necessaries of life.

[98] The question is whether the guilty verdict is unreasonable. In this case, as already discussed, the instructions on the standard of conduct and the risk to health or safety might have set the bar too high on the count based on the underlying offence of failing to provide the necessaries of life. If any doubt were raised by the instructions, any error would have benefited J.F. and would not warrant entering an acquittal on the other charge (R. v. Couture (1988), 27 Q.A.C. 205). In any event, the instructions cannot cast doubt on the conviction on the criminal negligence count, because they were the correct instructions for that count.

[99] Finally, since the jury was told that the offence of failure to provide the necessaries of life entailed an element in addition to the ones required for the offence of criminal negligence, to find that the verdicts are inconsistent and enter an acquittal on the latter count would be to dismiss the jury’s work on both counts, but in particular on that of criminal negligence, for which neither the instructions nor the verdict can be criticized. It has not been demonstrated that the jurors were in any way confused or had any reason to be confused, or that they “must have reached some sort of unjustifiable compromise”. In other words, the verdict has not been shown to be unreasonable.

3. Conclusion

[100] I have discussed how, on the basis of the instructions this jury received, the acquittal on the failure to provide the necessaries of life can be explained. I have also scrutinized the instructions on the count of criminal negligence and have not found any defects. This is not a case where a person has been convicted twice for the same offence, where one offence is a lesser and included offence or where the verdicts are inconsistent. My colleague Fish J., writing for the majority, has not explained why it is necessary to broaden or to adopt an impressionistic approach to the notion of inconsistent verdicts. At a time when trial judges are struggling to make their jury instructions appeal-proof, he has not pointed to any rule of law that would justify overturning the guilty verdict of a properly instructed jury.

[101] I would allow the appeal, dismiss the cross-appeal and restore the conviction.

Appeal dismissed and cross‑appeal allowed, Deschamps J. dissenting.

Solicitor for the appellant/respondent on cross‑appeal: Attorney General of Ontario, Toronto.

Solicitors for the respondent/appellant on cross‑appeal: Brodsky & Company, Winnipeg.