R. v. J.F.

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Supreme Court (Canada)
• Judge: McLachlin, C.J.C., Binnie, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Citation: (2008), 380 N.R. 325 (SCC),2008 SCC 60
• Date: 18 April 2008

R. v. J.F. (2008), 380 N.R. 325 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2008] N.R. TBEd. OC.067

Her Majesty The Queen (appellant/respondent on cross-appeal) v. J.F. (respondent/appellant on cross-appeal)

(32203; 2008 SCC 60; 2008 CSC 60)

Indexed As: R. v. J.F.

Supreme Court of Canada

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

October 31, 2008.

Summary:

The accused was charged with two counts of manslaughter by unlawful act. The alleged unlawful acts were criminal negligence and failing to provide the necessaries of life. A jury found the accused guilty of manslaughter by criminal negligence and acquitted him of manslaughter by failing to provide the necessaries of life. The accused appealed.

The Ontario Court of Appeal, Lang, J.A., dissenting, in a decision reported at 226 O.A.C. 119, allowed the appeal, set aside the conviction and ordered a new trial on the charge of manslaughter by criminal negligence. The Crown appealed on the issue of inconsistent verdicts. The accused cross-appealed the order for a new trial, arguing that an acquittal ought to have been entered.

The Supreme Court of Canada dismissed the appeal, allowed the cross-appeal and entered an acquittal for manslaughter by criminal negligence.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 1314

Manslaughter - Jury charge - The accused was charged with two counts of manslaughter by unlawful act respecting the death of a foster child - The alleged unlawful acts were criminal negligence and failing to provide the necessaries of life - The Supreme Court of Canada stated that, where criminal negligence was "piggy-backed" onto an alleged failure to provide the necessaries of life, the analysis could 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) of the Criminal Code - 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 manslaughter by criminal negligence - If not, the jury could still find the accused guilty of manslaughter by failure to provide the necessaries of life, but not of criminal negligence - See paragraph 37.

Criminal Law - Topic 4438

Procedure - Verdicts - Discharges and dismissals - Inconsistent verdicts - The accused was charged with two counts of manslaughter by unlawful act respecting the death of a foster child - The alleged unlawful acts were criminal negligence (count one) and failing to provide the necessaries of life (count two) - A jury found the accused guilty of count one and acquitted him of count two - The Ontario Court of Appeal allowed the accused's appeal, set aside the conviction and ordered a new trial - The wrong on which the Crown relied to support both charges was the accused's failure to protect the child from violence by the accused's wife - The distinctions between the charges were distinctions without a difference - The failure to protect the child was capable of supporting a conviction for either charge - A conviction for manslaughter by criminal negligence coupled with an acquittal on manslaughter by failing to provide the necessaries of life rendered the verdicts inconsistent - The Supreme Court of Canada dismissed the Crown's appeal and entered an acquittal respecting the criminal negligence count - Both counts involved similar fault requirements - To the extent that they differed, the count on which the accused was convicted was more serious than the count upon which he was acquitted - The jury was required to answer essentially the same question in determining whether the accused was guilty of manslaughter under either count - There was thus no reasonable basis upon which the jury could acquit on count one and convict him on count two - It was not open to the jury to say "yes" and "no" to substantially the same question - The court could not reconcile the verdicts retrospectively on the basis of abstract differences between the underlying offences, which were of little relevance on the facts of this case and were not relied on by the Crown at trial nor specifically explained by the judge in his charge to the jury - See paragraphs 1 to 6.

Criminal Law - Topic 4438

Procedure - Verdicts - Discharges and dismissals - Inconsistent verdicts - The accused was charged with two counts of manslaughter by unlawful act respecting the death of a foster child - The alleged unlawful acts were criminal negligence (count one) and failing to provide the necessaries of life (count two) - A jury found the accused guilty of count one and acquitted him of count two - The Ontario Court of Appeal allowed the accused's appeal, set aside the conviction and ordered a new trial - The wrong on which the Crown relied to support both charges was the accused's failure to protect the child from violence by the accused's wife - The distinctions between the charges were distinctions without a difference - The failure to protect the child was capable of supporting a conviction for either charge - A conviction for manslaughter by criminal negligence coupled with an acquittal on manslaughter by failing to provide the necessaries of life rendered the verdicts inconsistent - The Supreme Court of Canada allowed the accused's appeal against the subsidiary order of the Court of Appeal directing a new trial on the charge of manslaughter by criminal negligence and ordered that an acquittal be entered instead - Both counts involved similar fault requirements - The accused was found by the jury 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 accused did in fact fail in his duty to protect his child - The accused's acquittal was not appealed by the Crown - To order a new trial in these circumstances would deprive the accused 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 - See paragraphs 38 to 48.

Criminal Law - Topic 5058

Appeals - Indictable offences - Substitution of verdict - Substitution of verdict of acquittal - [See second Criminal Law - Topic 4438 ].

Cases Noticed:

R. v. Naglik, [1993] 3 S.C.R. 122; 157 N.R. 161; 65 O.A.C. 161, refd to. [paras. 8, 67].

R. v. Tutton and Tutton, [1989] 1 S.C.R. 1392; 98 N.R. 19; 35 O.A.C. 1, refd to. [para. 9].

R. v. Sharp (1984), 3 O.A.C. 26; 12 C.C.C.(3d) 428 (C.A.), refd to. [para. 9].

R. v. Willock (C.) (2006), 212 O.A.C. 82; 210 C.C.C.(3d) 60 (C.A.), refd to. [para. 10].

R. v. J.L. (2006), 206 O.A.C. 205; 204 C.C.C.(3d) 324 (C.A.), refd to. [para. 10].

R. v. Palin (1999), 135 C.C.C.(3d) 119 (Que. C.A.), refd to. [para. 10].

R. v. Fortier (1998), 127 C.C.C.(3d) 217 (Que. C.A.), refd to. [para. 10].

R. v. Brown (W.J.) (2000), 134 O.A.C. 151 (C.A.), refd to. [para. 10].

R. v. Baker (N.A.) (2006), 211 O.A.C. 285; 209 C.C.C.(3d) 508 (C.A.), refd to. [para. 10].

R. v. Emans (A.) (2000), 135 O.A.C. 338; 146 C.C.C.(3d) 449 (C.A.), refd to. [para. 10].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [paras. 13, 93].

R. v. Provo, [1989] 2 S.C.R. 3; 97 N.R. 209; 59 Man.R.(2d) 1, refd to. [paras. 13, 95].

R. v. Johnson, 2007 CarswellOnt 7765 (Ct. J.), refd to. [para. 13].

R. v. J.R.B., [2002] N.J. No. 296 (Prov. Ct.), refd to. [para. 13].

R. v. Fitze (I.W.) et al. (2000), 264 A.R. 319; 35 C.R.(5th) 114 (Q.B.), refd to. [para. 13].

R. v. Pittiman (R.), [2006] 1 S.C.R. 381; 346 N.R. 65; 209 O.A.C. 388; 2006 SCC 9, refd to. [paras. 23, 43].

R. v. McShannock (1980), 55 C.C.C.(2d) 53 (Ont. C.A.), refd to. [para. 43].

R. v. Creighton, [1993] 3 S.C.R. 3; 157 N.R. 1; 65 O.A.C. 321, refd to. [para. 65].

R. v. Beatty (J.R.), [2008] 1 S.C.R. 49; 371 N.R. 119; 251 B.C.A.C. 7; 420 W.A.C. 7; 2008 SCC 5, refd to. [para. 66].

R. v. Gosset, [1993] 3 S.C.R. 76; 157 N.R. 195; 57 Q.A.C. 130, refd to. [para. 67].

R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258, refd to. [para. 88].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161, refd to. [para. 88].

R. v. Prince, [1986] 2 S.C.R. 480; 70 N.R. 119; 45 Man.R.(2d) 93, refd to. [para. 93].

R. v. Krug, [1985] 2 S.C.R. 255; 62 N.R. 263; 11 O.A.C. 187, refd to. [para. 94].

R. v. Andrew (1990), 57 C.C.C.(3d) 301 (B.C.C.A.), refd to. [para. 94].

R. v. Switzer (1987), 75 A.R. 167; 32 C.C.C.(3d) 303 (C.A.), refd to. [para. 94].

R. v. Couture (L.) (1988), 27 Q.A.C. 205 (C.A.), refd to. [para. 98].

Authors and Works Noticed:

Parent, Hugues, Traité de droit criminel (2nd Ed. 2007), vol. 2, p. 299 [para. 68].

Counsel:

Kimberley Crosbie, for the appellant/respondent on cross-appeal;

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

Solicitors of Record:

Attorney General of Ontario, Toronto, Ontario, for the appellant/respondent on cross-appeal;

Brodsky & Company, Winnipeg, Manitoba, for the respondent/appellant on cross-appeal.

This appeal and cross-appeal were heard on April 18, 2008, by McLachlin, C.J.C., Binnie, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. The decision of the Supreme Court of Canada was delivered in both official languages on October 31, 2008, when the following opinions were filed:

Fish, J. (McLachlin, C.J.C., Binnie, Abella, Charron and Rothstein, JJ., concurring) - see paragraphs 1 to 42;

Deschamps, J., dissenting - see paragraphs 43 to 101.