R. v. Tutton and Tutton, (1989) 98 N.R. 19 (SCC)

• Judge: Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 08, 1989
• Jurisdiction: Canada (Federal)
• Citations: (1989), 98 N.R. 19 (SCC);1989 CanLII 103 (SCC);13 MVR (2d) 161;69 CR (3d) 289;98 NR 19;48 CCC (3d) 129;46 CRR 394;[1989] 1 SCR 1392;35 OAC 1

R. v. Tutton (1989), 98 N.R. 19 (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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Her Majesty The Queen (appellant) v. Arthur Thomas Tutton and Carol Anne Tutton (respondents)

(19984)

Indexed As: R. v. Tutton and Tutton

Supreme Court of Canada

Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ.

June 8, 1989.

Summary:

The parents of a five year old diabetic boy belonged to a religious sect which believed in faith healing. Although the mother had formal training in caring for a diabetic and knew that insulin was necessary for the boy's survival, she, with the father's approval, withheld insulin from him on two occasions because she believed he was cured. The first time, he nearly died; the second time, a year later, he died. The parents were charged with manslaughter by causing the boy's death by criminal negligence in omitting without lawful excuse to provide the necessaries of life contrary to ss. 197 and 202 of the Criminal Code. They were convicted by a judge and jury and appealed.

The Ontario Court of Appeal in a judgment reported 6 O.A.C. 367; 18 C.C.C.(3d) 328, allowed the appeal and ordered a new trial. The court held that the trial judge's charge to the jury was adequate on the manslaughter component of the charge, but that his charge respecting the failure to provide necessaries may have resulted in the jury thinking that the accused was required to prove lawful excuse respecting manslaughter. The Crown appealed.

The Supreme Court of Canada dismissed the appeal and held that a new trial was warranted because of the possible confusion concerning burden of proof. The court went on to consider the test for criminal negligence, but equally split on the issue. McIntyre, J., with L'Heureux-Dubé and Lamer, JJ., concurring, stated that an objective test was applicable, precluding consideration of the accused's intent. Wilson, J., with Dickson, C.J.C., and La Forest, J., concurring, stated that a subjective test was applicable, as is usual in criminal law, requiring some degree of mental blameworthiness, guilty knowledge or awareness of risk. Wilson, J., suggested application of an objective test to establish prima facie advertent negligence and then a subjective test to the evidentiary necessity for the accused to prove inadvertence.

Courts - Topic 79

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Supreme Court of Canada - A judge of the Supreme Court of Canada suggested that "before overruling one of its prior decisions the Court consider the introduction of the Charter, the attenuation of a precedent in later authorities, the creation of uncertainty by the continued existence of the precedent and whether the overturning of the precedent will expand the range of criminal liability and work to the detriment of the accused" - See paragraph 40.

Criminal Law - Topic 1226

Criminal negligence - Intent or mens rea - The Supreme Court of Canada evenly split on the nature of the test for criminal negligence - Three judges stated that an objective test was applicable, precluding consideration of the accused's intent - The other three judges stated that a subjective test was applicable, as is usual in the criminal law, requiring some degree of mental blameworthiness, guilty knowledge or awareness of risk - They suggested application of an objective test to establish prima facie advertent negligence and then a subjective test to the evidentiary necessity for the accused to prove inadvertence.

Criminal Law - Topic 1227

Criminal negligence - Wanton and reckless disregard - Meaning of - Criminal Code, R.S.C. 1970, c. C-34, s. 202 - [See Criminal Law - Topic 1226 above].

Criminal Law - Topic 1314

Manslaughter - Jury charge - Where proof of manslaughter depends upon proof of another offence (e.g., failure to provide necessaries) - A judge of the Supreme Court of Canada suggested the steps to follow in instructing the jury on a charge where the proof of one offence (e.g., manslaughter) depends upon proof of another (e.g., failure to provide necessaries of life) - See paragraphs 10 to 11.

Criminal Law - Topic 4399.7

Procedure - Jury charge - Where proof of one offence depends upon proof of another - [See Criminal Law - Topic 1314 above].

Criminal Law - Topic 4950

Appeals - New trials - Grounds - Misdirection by trial judge - The accused parents were charged with manslaughter in the death of their diabetic son by criminal negligence in withholding without lawful excuse the necessaries of life (insulin) from him - The Supreme Court of Canada affirmed that a new trial was required where the trial judge adequately instructed the jury on manslaughter, but his charge respecting failure to provide the necessaries of life may have resulted in the jury thinking that the accused was required to prove lawful excuse respecting manslaughter.

Cases Noticed:

R. v. Waite (1986), 15 O.A.C. 215; 28 C.C.C.(3d) 327, affd. 98 N.R. 69 (S.C.C.), refd to. [para. 12].

R. v. Sansregret, [1985] 1 S.C.R. 570; 58 N.R. 123; 35 Man.R.(2d) 1, dist. [paras. 14, 28].

R. v. Pappajohn, [1980] 2 S.C.R. 120; 32 N.R. 104; dist. [paras. 16, 28].

R. v. Vaillancourt, [1987] 2 S.C.R. 636; 81 N.R. 115; 10 Q.A.C. 161; 60 C.R.(3d) 289, refd to. [para. 21].

R. v. Sault Ste Marie, [1978] 2 S.C.R. 1299; 21 N.R. 295; 40 C.C.C.(2d) 353; 85 D.L.R.(3d) 161; 3 C.R.(3d) 30, consd. [para. 28].

R. v. Beaver, [1957] S.C.R. 531, consd. [para. 28].

R. v. Robertson, [1987] 1 S.C.R. 918; 75 N.R. 6; 20 O.A.C. 200, consd. [para. 28].

R. v. Paré, [1987] 2 S.C.R. 618; 80 N.R. 272; 11 Q.A.C. 1; 60 C.R.(3d) 346; 38 C.C.C.(2d) 97, refd to. [para. 31].

O'Grady v. Sparling, [1960] S.C.R. 804, consd. [para. 32].

R. v. Mann, [1966] S.C.R. 238, consd. [para. 32].

R. v. Binus, [1967] S.C.R. 594, consd. [para. 32].

R. v. Peda, [1969] S.C.R. 905, consd. [para. 32].

Commissioner of Police of the Metropolis v. Caldwell, [1982] A.C. 341 (H.L.), consd. [para. 34].

R. v. Lawrence, [1982] A.C. 510 (H.L.), consd. [para. 34].

R. v. Arthurs, [1974] S.C.R. 287, consd. [para. 37].

R. v. Leblanc, [1977] 1 S.C.R. 339; 8 N.R. 107, consd. [para. 39].

R. v. Bernard, [1988] 2 S.C.R. 833; 90 N.R. 321; 32 O.A.C. 161, consd. [para. 40].

R. v. Sharp (1984), 3 O.A.C. 26; 12 C.C.C.(3d) 428 (Ont. C.A.), consd. [para. 42].

R. v. Vasil, [1981] 1 S.C.R. 469; 35 N.R. 451, consd. [para. 47].

R. v. Hill, [1986] 1 S.C.R. 313; 68 N.R. 161; 17 O.A.C. 33, consd. [para. 47].

R. v. Quin, [1988] 2 S.C.R. 825; 90 N.R. 389; 32 O.A.C. 229, consd. [para. 50].

R. v. Stevens, [1988] 1 S.C.R. 1153; 86 N.R. 85; 28 O.A.C. 243, refd to. [para. 51].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, ss. 197(1)(a), 197(2), 202 [paras. 5, 26]; 205, 219 [para. 26].

Authors and Works Noticed:

Colvin, Eric, Recklessness and Criminal Negligence (1982), 32 U.T.L.J. 345 [paras. 19, 39].

Colvin, Eric, Principles of Criminal Law (1986), 120 [para. 37].

Fletcher, G., The Theory of Criminal Negligence: A Comparative Analysis (1971), 119 U. Pa. L. Rev. 401 [paras. 45, 47].

Fletcher, George P., Rethinking Criminal Law (1978), p. 511 [para. 45].

Hart, H.L.A., Negligence, Mens Rea and Criminal Responsibility, in Oxford Essays in Jurisprudence (1961), (A.G. Guest, Ed.), p. 47 [para. 45].

O Hearn, P.J.T., Criminal Negligence: An Analysis in Depth (1964-65), 7 Crim. L.Q. 27, pp. 407, 411 [para. 35]; 422 [para. 42].

Pickard, Toni, Culpable Mistakes and Rape: Relating Mens Rea to the Crime (1980), 30 U.T.L.J. 75 [paras. 19, 45].

Stalker, A., Can George Fletcher Help Solve the Problem of Criminal Negligence (1981), 7 Queens L.J. 274 [para. 45].

Stuart, Don, Canadian Criminal Law: A Treatise (2nd Ed. 1987), p. 194 [para. 19].

Williams, Glanville, Criminal Law: The General Part (2nd Ed. 1961), pp. 53-56 [para. 42].

Counsel:

W.J. Blacklock and Kenneth L. Campbell, for the appellant Crown;

Andrew Kerekes, for the respondent, Arthur Thomas Tutton;

Irwin Koziebrocki, for the respondent, Carol Anne Tutton.

Solicitors of Record:

Attorney General for Ontario, Toronto, Ontario, for the appellant Crown;

Kerekes, Collins, Toronto, Ontario, for the respondent, Arthur Thomas Tutton;

Irwin Koziebrocki, Toronto, Ontario, for the respondent, Carol Anne Tutton.

This case was heard on November 10, 1987, at Ottawa, Ontario, before Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ., of the Supreme Court of Canada.

On June 8, 1989, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

McIntyre, J. (L'Heureux-Dubé, J., concurring) - see paragraphs 1 to 18;

Lamer, J. - see paragraphs 19 to 22;

Wilson, J. (Dickson, C.J.C., and La Forest, J., concurring) - see paragraphs 23 to 52.

Beetz, Estey and Le Dain, JJ., took no part in the judgment.