Lack Of Regulatory Approvals Not Determinative Of Criminal Negligence

November 18, 2019


In R. v. Javanmardi, 2019 SCC 54 the Supreme Court of Canada has clarified that the absence of an authorization, licence or permit is not determinative of a marked and substantial departure from the standard of a reasonable person on a charge of criminal negligence causing death.

The Supreme Court of Canada reinstated an acquittal on charges of criminal negligence causing death and manslaughter against a naturopath who administered an intravenous injection. Under s.31 of Quebec’s Medical Act CQLR, c.M-9, s. 31 this was an activity reserved to physicians. The majority reasons considered the appellant’s prior training, experience and qualifications as a naturopath and ultimately concluded that notwithstanding the illegality of the injection by the appellant, a reasonable naturopath in the same circumstances would not have foreseen the risk of bodily harm. The appellant’s injection of nutrients, despite the lack of authorization, did not constitute a marked departure from the standard of a reasonable person.

The dissenting judges found that the permit requirement for the administration of the injection was proof of an elevated standard of care. (at par. 75) The appellant was not authorized under Québec law to administer nutrients intravenously to humans because of the foreseeable danger of infection caused by the sudden introduction of microbes and bacteria into the human body. (at pars.69-70)

Implications for Regulators

While prosecutors have resorted to criminal negligence charges sparingly when occupational health and safety and environment laws have been violated, they have been and are more likely to consider criminal charges when death or serious injury is involved…see e.g. R. v Metron Construction Corp. 2012 ONCJ 506; 2013 ONCA 541 (Ont.C.A.) and R. v Syncrude Canada Ltd. [1984] W.W.R. 355 (Alta. Q.B.); R. v Ontario Power Generation Inc. (2006), 73 W.C.B. (2d) 330, R. v Koebel (2004), 11 C.E.L.R. (3d) 129 (Ont. S.C.J.) R. v Hub Oil Co. July 21, 2005, unreported, Alta Q.B.) If we just take Ontario’s environmental laws as an example, the number of compliance approvals required for the operation of equipment and waste facilities under the Environmental Protection Act R.S.O., 1990, c.E.19, sewage works under the Ontario Water Resources Act R.S.O. 1990, c.O.40, or drinking water permits and licences under the Safe Drinking Water Act 2002, S.O. c.32, are extensive. That though, only comprises a fraction of those subject to provincial or federal regulation whose operations carried out under the approval, permit or licence carry risk of serious injury or death. Take for example, the requirement for a certificate of authorization for services within the practice of professional engineering under the Professional Engineers Act R.S.O. c. P.28. Imagine if the professional engineering concerned the construction of a bridge or a tank in which toxic material was to be stored. Enforcement officials faced with a case where one of these approvals, permits or licences has not been obtained, or has lapsed and injury or death has ensued, would almost automatically consider criminal negligence charges. The Javanmardi case will now reinforce that enforcement officials must first consider whether the subject of the investigation possessed the necessary training, experience and qualifications and carried on its activities in accordance with best practices, quite apart from the status of any approval requirements.

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