R v Javanmardi - Justine Mayan

This case is interesting for two reasons. Firstly, the contrast between the majority and the minority definitions of a dangerous act revolves around the extent to which an act’s inherent danger is dependent on the training and skill of the individual performing it. The accused in this case, who operated a naturopathic clinic in Quebec, administered an injection of intravenous nutrients to M, an eighty-four-year-old male with heart disease. M died of endotoxic shock as a result of the injection several hours later. In Quebec, naturopaths are not legally authorized to perform intravenous injections, as per the Quebec Medical Act, while in other Canadian provinces, it is not illegal for them to do so. The accused was charged with criminal negligence causing death, and unlawful act manslaughter, and was first acquitted of both charges at trial. The Court of Appeal set aside both acquittals, substituting a conviction for unlawful act manslaughter, and ordering a new trial on the charge of criminal negligence causing death, both of which were appealed to the Supreme Court. On November 14, 2019, the Supreme Court released its decision in this case, with the majority of the court allowing both appeals. The court split regarding the charge of unlawful act manslaughter, with the dissenting judgement written by Chief Justice Wagner arguing that while the conviction for unlawful act manslaughter by the Court of Appeal should indeed be set aside, a new trial should be ordered on that charge, rather than an acquittal.

Section 222(5)(a) of the Criminal Code states that a person commits culpable homicide when he causes the death of a human being by means of an unlawful act. According to the dissenting judgement in this case, the offense of unlawful act manslaughter consists of three actus reus elements: the underlying unlawful act; the objective dangerousness of that act; and a causal connection between that act and death. The second of these three elements is what divided the Supreme Court. The difference of opinion between the justices centered on the issue of what constitutes a ‘dangerous’ act. In the opinion of the majority, written by Justice Abella, the Court of Appeal erred in finding that the performance of an intravenous injection is objectively dangerous regardless of the circumstances surrounding its administration or the training and experience of the individual performing the injection. In the opinion of the majority, the training and experience of the accused in this case in performing intravenous injections sufficiently qualified her to perform the injection which ultimately resulted in the death of M, and therefore the administration of that injection was not an objectively dangerous act. The second of the three actus reus elements was therefore not met in the opinion of the majority of the Court.

In the opinion of the dissent, concurring with the opinion of the Court of Appeal, all intravenous injections into the human body are inherently dangerous, and therefore the performance of one is an inherently dangerous act. According to the dissent, the level of experience of the individual performing the injection does not alter the inherent danger in injections, and therefore the administration of an intravenous injection by a health professional legally permitted to do so in Quebec would still have been an objectively dangerous act, although not an illegal one. All three elements of the actus reus of unlawful act manslaughter were therefore met in the opinion of the dissent, concurring with the finding of the Court of Appeal. The dissent also found that the substitution of a conviction for an acquittal, rather than the ordering of a new trial, by the Court of Appeal was an unusual measure and an error of law. The two positions of the Justices reflect the difference between an objective standard and a modified objective standard of danger. The dissent, taking an objective view of danger, held that intravenous injections carry an inherent element of danger in all circumstances. The majority, opting for a modified objective view of danger, found that the danger inherent in intravenous injections is variable according to the particular circumstances and expertise involved in their administration.

As a hypothetical, is open heart surgery performed by a novice more dangerous than open heart surgery performed by an expert? Regardless of who is performing the surgery, if it goes wrong, it will result in death. However, it is less likely that the expert will make an error which results in death. For this reason, I concur with the majority, that the danger inherent in an activity is informed by the skill and experience of the individual performing it. Because of this, I regard the issue of inherent dangerousness as one of fact, not law, and therefore believe that the trial judge is in the best position to determine the dangerousness of an activity, whose findings should not be disturbed unless there was no evidence to support them.

The second reason for which this case is interesting is in contemplation of the role of Appellate Courts in weighing evidence. Reading paragraphs 41-45 in the majority judgement, it is evident how the majority defers to the trial Judge on the issue of inherent dangerousness of intravenous injections, and criticizes the Court of Appeal for wading in and re-trying the facts on that issue. As stated, I find myself in agreement with how the majority treats the evidence on inherent dangerousness. This is in contrast to the dissenting judgement at paragraph 70, and again at paragraph 80, where it is asserted that the evidence was that such injections are inherently dangerous. There is no quoted evidence for this assertion. It would be very interesting to see the transcripts of the evidence to see if there was conflicting expert/opinion evidence on this point or whether members of the Canadian judiciary are using their own personal opinions to navigate the topic. This of course, would be extremely incorrect, if it is indeed how members of the judiciary writing on this case, from the trial judge to the SCC, were forming their opinions on inherent dangerousness.

R v Javanmardi, 2019 SCC 54.