Criminal Negligence Causing Death (Sentencing)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-30
CLNP Page ID:	2299
Page Categories:	Criminal Law
Citation:	Criminal Negligence Causing Death (Sentencing), CLNP 2299, <https://rvt.link/9j>, retrieved on 2024-04-30
Editor:	Sharvey
Last Updated:	2023/11/07

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

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

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

R. v. Morrisey, 2000 SCC 39 (CanLII), [2000] 2 SCR 90

The accused was drinking with his friend T and T’s father at an isolated camp in the woods, where the accused also began taking prescription drugs. The accused and T successfully cut off a length of a rifle barrel. While T remained at the camp, the accused drove T’s father home. Upon returning to the camp, the accused found T lying in the top bunk in the cabin. While holding the rifle, which he knew to be loaded, he jumped up to the lower bunk in order to shake T — either to awaken him, or to get his attention. The accused lost his footing, and fell. The gun discharged, and the bullet struck T in the head, killing him instantly. The gun was not susceptible to shock discharge. There was no evidence that the accused intended to aim the gun at T. The accused pleaded guilty to criminal negligence causing death, contrary to s. 220(a) of the Criminal Code, and unlawfully pointing a firearm contrary to s. 86(1). He had spent five months in pre‑trial custody. The trial judge found that the four‑year minimum sentence provided for in s. 220(a) violated s. 12 of the Canadian Charter of Rights and Freedoms, and sentenced the accused to two years’ imprisonment for the criminal negligence charge (taking into account pre‑trial custody) plus one year for the s. 86(1) charge. The trial judge was directed by the Court of Appeal to rehear the matter, as the Attorney General of Canada had not been given notice of the constitutional challenge. Having heard additional arguments, he maintained his original ruling. The Court of Appeal allowed the Crown’s appeal, and imposed a four‑year sentence for the criminal negligence charge, without any credit for pre‑trial custody.

Held: The appeal should be dismissed in all respects except one. The accused’s sentence should be adjusted to take pre‑trial custody into account.

...

Per McLachlin and Arbour JJ.: The four‑year minimum sentence provided for in s. 220(a) of the Criminal Code is not so excessive or grossly disproportionate as to constitute cruel and unusual punishment for this offender in the particular circumstances of this case. Because the offence of criminal negligence causing death with a firearm is so fact‑driven, however, it cannot be concluded that the four‑year minimum sentence is not grossly disproportionate for “any” reasonable hypothetical offender. It is impossible to canvass, with the requisite richness of factual details, the many varied circumstances in which a charge of manslaughter could arise, even when the factual scenarios are restricted to manslaughter by criminal negligence, and involving the use of a firearm. Furthermore, real cases, representing situations that have arisen, must be seen as reasonable hypotheticals for purposes of a s. 12 analysis, no matter how unusual they may appear.

R. v. Boily, 2022 ONCA 611 (CanLII)

[1] Jean-Jacques Lemay, a retired police officer, served the public with distinction throughout his career. He reached the rank of Chief Superintendent of the Royal Canadian Mounted Police and served as the Commissioner for the Bermuda Police Services. Instead of enjoying the retirement that he had very much earned, Mr. Lemay was killed when the appellant’s vehicle, travelling at more than 60 km/h over the speed limit, struck his vehicle head on.

[2] The appellant entered a guilty plea to a single count of criminal negligence causing death, contrary to s. 220 of the Criminal Code, R.S.C., 1985, c. C-46. The sentencing judge imposed a five-year term of imprisonment, along with a driving prohibition for what he described as a “period of 38 months, pursuant to s. 320.24 of the Criminal Code”. This sentence appeal is only about the driving prohibition. The appellant argues that the sentencing judge exceeded his jurisdiction by imposing a driving prohibition because the statutory provision allowing for these discretionary orders to be made – s. 320.24(4) of the Criminal Code – does not extend to convictions for criminal negligence causing death.

[3] Accordingly, this is a sentence appeal that calls out for an answer to only one question:

Following upon a conviction for criminal negligence causing death through the operation of a conveyance,[1] can a driving prohibition be imposed under s. 320.24(4) of the Criminal Code?

The answer to this question is no.

R. v. Javanmardi, 2019 SCC 54 (CanLII), [2019] 4 SCR 3

[19] The actus reus of criminal negligence causing death requires that the accused undertook an act — or omitted to do anything that it was his or her legal duty to do — and that the act or omission caused someone’s death.

[20] The fault element is that the accused’s act or omission “shows wanton or reckless disregard for the lives or safety of other persons”. Neither “wanton” nor “reckless” is defined in the Criminal Code, but in R. v. J.F., 2008 SCC 60 (CanLII), [2008] 3 S.C.R. 215, this Court confirmed that the offence of criminal negligence causing death imposes a modified objective standard of fault — the objective “reasonable person” standard (paras. 7-9; see also R. v. Tutton, 1989 CanLII 103 (SCC), [1989] 1 S.C.R. 1392, at pp. 1429-31; R. v. Morrisey, 2000 SCC 39 (CanLII), [2000] 2 S.C.R. 90, at para. 19; R. v. Beatty, 2008 SCC 5 (CanLII), [2008] 1 S.C.R. 49, at para. 7).

[21] As with other negligence-based criminal offences, the fault element of criminal negligence causing death is assessed by measuring the degree to which the accused’s conduct departed from that of a reasonable person in the circumstances.[3] For some negligence-based offences, such as dangerous driving, a “marked” departure satisfies the fault element (J.F., at para. 10; see also: Beatty, at para. 33; R. v. Roy, 2012 SCC 26 (CanLII), [2012] 2 S.C.R. 60, at para. 30; R. v. L. (J.) (2006), 2006 CanLII 805 (ON CA), 204 C.C.C. (3d) 324 (Ont. C.A.), at para. 15; R. v. Al-Kassem, 2015 ONCA 320, 78 M.V.R. (6th) 183, at para. 6). In the context of criminal negligence causing death, however, the requisite degree of departure has been described as an elevated one — marked and substantial (J.F., at para. 9, applying Tutton, at pp. 1430-31, and R. v. Sharp (1984), 1984 CanLII 3487 (ON CA), 12 C.C.C. (3d) 428 (Ont. C.A.)).