In R. v. Goforth, 2022 SCC 25, June 10, 2022, the accused was charged with second degree murder and unlawfully causing bodily harm in relation to two foster children. The charges were predicated on accused’s alleged failure to provide necessaries of life to the children, causing their death. The accused was convicted by a jury of manslaughter and unlawfully causing bodily harm. The convictions were set aside by the Saskatchewan Court of Appeal on the basis of errors in the trial judge’s charge to the jury. The Crown appealed to the Supreme Court of Canada. The Supreme Court described the issues raised by the appeal in the following manner (at paragraph 19):
(1) Did the trial judge err by improperly instructing the jury on the mens rea requirement for s. 215 (failure to provide necessaries of life)? Specifically, did the trial judge err by intermingling the required foreseeability standard for s. 215 with the required foreseeability standard for manslaughter or unlawfully causing bodily harm?
(2) Did the trial judge err by failing to instruct the jury on Mr. Goforth’s circumstances as a secondary caregiver during the mens rea instruction for s. 215?
(3) Did the trial judge err by failing to explain what is meant by a marked departure from the conduct of a reasonably prudent person in the circumstances?
The appeal was allowed and the convictions reinstated. The Supreme Court concluded (at paragraph 3):
In my view, the majority of the Court of Appeal erred by failing to take a functional approach in its assessment of the jury charge. This Court has long held that an accused is entitled to a jury that is properly — and not necessarily
perfectly — instructed. The ultimate question in this appeal is whether the jury was properly instructed such that appellate intervention was unwarranted. In my view, while the charge was not perfect, the jury was nonetheless properly instructed. None of the issues raised in connection with the jury charge warranted appellate intervention.
(1) The Mens Rea Requirements:
The Supreme Court indicated that “the mens rea requirement for s. 215 is established when the Crown proves that the accused’s conduct constitutes ‘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’… In order to satisfy the mens rea requirement for either manslaughter or unlawfully causing bodily harm, the Crown needed to prove — in addition to establishing the mens rea for s. 215 — that it was objectively foreseeable, to a reasonable person in the circumstances of the accused, that the failure to provide necessaries of life to the children would lead to a risk of bodily harm which was neither trivial nor transitory (Creighton, at pp. 44-45). This is a lower foreseeability standard than what is required for s. 215, as the foreseeability of death or of permanent endangerment to health is not required. Therefore, when the offence under s. 215 is the predicate offence for either manslaughter or unlawfully causing bodily harm, if the Crown proves the requisite mens rea requirement for s. 215, then, by necessary implication, the additional mens rea requirement for manslaughter or unlawfully causing bodily harm will be satisfied” (at paragraphs 27 and 31).
The Supreme Court concluded that “when read as a whole, the trial judge’s instructions functionally conveyed the necessary legal principles. The jury charge was not perfect. The trial judge did not make a clear distinction between the required foreseeability standard for s. 215 and the required foreseeability standard for manslaughter or unlawfully causing bodily harm. She routinely juxtaposed the two different foreseeability requirements without clearly alerting the jury to how the respective foresight standards corresponded to the respective offences” (at paragraph 35).
(2) Did the Trial Judge Err by Failing to Instruct the Jury on Mr. Goforth’s Circumstances as a Secondary Caregiver During the Mens Rea Instruction or
The Supreme Court indicated that the “law is clear that personal characteristics of an accused, short of incapacity, are irrelevant in assessing objective mens rea…Overall, the jury was well aware of all the circumstances that Mr. Goforth argued prevented him from foreseeing the risk of harm to the children. Indeed, on any reasonable view of the case, this, more than anything else, would appear to explain why Ms. Goforth was convicted of second degree murder whereas Mr. Goforth was convicted of unlawful act manslaughter. I have no hesitation in concluding that the jury was properly instructed and that it rightly rejected Mr. Goforth’s defence that his circumstances prevented him from foreseeing the risk of harm to the children” (at paragraphs 41 and 53).
(3) Did the Trial Judge Err by Failing to Explain What Is Meant by a Marked Departure From the Conduct of a Reasonably Prudent Person in the Circumstances?
The Supreme Court indicated that the “alleged marked departure in this case relates to whether a reasonable person would have foreseen that failing to provide food or fluids to young children — one of whom ultimately died as a result of brain injury that developed following a cardiac arrest caused by malnutrition and dehydration — would result in a risk of danger to life or of permanent endangerment to health. Given this context, the jury was easily able to assess whether the failure to provide food or fluids to young children constituted a marked departure from the standard of care of a reasonably prudent person in the circumstances” (at paragraph 56).