R. v. JAVANMARDI 2019 SCC 54

During medicinal conduct, the death of a person done by an expert despite taking due care and in absence of objective foreseeability, is no offence under manslaughter or criminal negligence causing death.

Ms. Javanmardi, the respondent and guilty (as held by the court of appeal), was working as a naturopath since 1985 in Quebec. Her degree in science included various courses and clinical training about intravenous injection techniques. Over the years, she had given intravenous injections that provide nutrients to thousands of her patients. In many provinces, naturopaths are lawfully authorized to prescribe these injections; however, it is not allowed in Quebec.

On June 12, 2008, Roger Matern, 84 years of age, the victim/appellant, and his wife visited the respondent’s clinic for treatment. The respondent, after one hour of consultation, recommended an intravenous injection of nutrients. The appellant agreed immediately. It turned out that the injections were found to be contaminated that led to the death of the appellant from endotoxic shock a day later. The respondent was thereafter charged for two offences: criminal negligence causing death and manslaughter.

At the trial, the only argument prosecution could make was that the prescribing of intravenous injection is unlawful under s.31 of Quebec’s Medical Act, CQLR, c. M-9. Crown acquitted the respondent from both the charges on the grounds that the nutrients were beneficial for the respondent, as stated by experts during the trial; Although Quebec did not recognize naturopathy, other provinces did like Ontario from where the respondent purchased her nutrients and complied with all the provincial health and safety regulations; Respondent followed sterilization protocols and took all precautionary measures a prudent person would take; her conduct did not show any marked departure from the standard of care that a reasonable person in her circumstances would have exercised. But despite taking due care and precaution, appellant’s death was unforeseeable and the appellant himself consented to the intravenous injections knowing that the respondent was not a physician.

The Court of Appeal disagreed with this judgment and charged the respondent for unlawful manslaughter. However, the court declined to provide conviction on the charge of criminal negligence because, in its view, unless an overall assessment of the evidence is conducted, it would not be possible to conclude the amount of marked and substantial departure from the standard of a reasonable person.

Among the seven-judge bench of the SC, the majority agreed with the decision of the trial judge. The ratio of 5:2 stated that the respondent was not guilty of both the offences. They opined that the trial judge’s job is to analyze and interpret the evidence and then formulate a conclusion about the facts. The majority further explained that the court of appeal was not right to re-examine and re-analyze the evidence and give the judgment based on its own factual conclusions. They also held that the trial judge was justified when he appreciated the argument that provided the respondent’s extensive training and experience evidence that helped evaluate the fault element in offences and the reasonability during the situation.