MITRA JAVANMARDI, APPELLANT) (Pursuant to Section 42 of the Rules of the Supreme Court of Canada) Volume I

SCC Court File No.: 38188 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF QUEBEC)

BETWEEN: MITRA JAVANMARDI APPELLANT (Respondent) -and- HER MAJESTY THE QUEEN RESPONDENT (Appellant) -and- ATTORNEY GENERAL OF QUEBEC RESPONDENT (Mis-en-cause) -and- ATTORNEY GENERAL OF CANADA INTERVENER

APPELLANT’S FACTUM (MITRA JAVANMARDI, APPELLANT) (Pursuant to Section 42 of the Rules of the Supreme Court of Canada) Volume I

Counsel for the Appellant Agent for the Appellant Isabel J. Schurman, Ad.E. Marie-France Major Francis Villeneuve Ménard Supreme Advocacy LLP Lara Kwitko 340 Gilmour St., Suite 100 Schurman, Grenier, Strapatsas & Associates Ottawa, Ontario, K2P 0R3 625 boul. René-Lévesque W., Suite 700 Tel.: 613. 695. 8855 Montreal, Quebec, H3B 1R2 Fax: 613. 695. 8580 Tel.: 514. 868. 9090 [email protected] Fax: 514. 868. 9009 [email protected] [email protected] [email protected]

Julius Grey, Ad.E. Mathieu Laplante-Goulet Grey & Casgrain s.e.n.c. 1155 boul. René-Lévesque W., Suite 1715 Montreal, Quebec, H3B 2K8 Tel.: 514. 288. 6180 Fax: 514. 288. 8908 [email protected] [email protected]

5184 boulevard Cousineau, Suite 110 Saint-Hubert, Québec, J3Y 0E1 Tél. : 514. 441. 2122 Téléc. : 514. 228. 1597 MÉMOIRES L’ÉLOQUENCE INC. [email protected] www.memoiresleloquence.com

Counsel for the Appellant (continued)

Rose-Mélanie Drivod Drivod Services Juridiques 2189 boul. Sherbrooke East Montréal, Québec, H2K 1C8 Tel.: 514. 303. 2121 Fax: 514. 723. 4073 [email protected]

Counsel for the Respondent, Her Majesty Agent for the Respondent, Her Majesty the Queen the Queen

Christian Jarry Sandra Bonanno Director of Criminal and Penal Prosecutions Director of Criminal and Penal 1 rue Notre-Dame East, Suite 4.100 prosecutions Montréal, Québec, H2Y 1B6 17 rue Laurier, Suite 1.230 Tel.: 514. 393. 2703 Gatineau, Québec, J8X 4C1 Fax: 514. 873. 9895 Tel.: 819. 776. 8111, Ext.: 60446 [email protected] Fax: 819. 772. 3986 [email protected]

Counsel for the Respondent, Attorney Agent for the Respondent, Attorney General of Quebec General of Quebec

Alexandre Duval Pierre Landry Julien Bernard Noël & Associés Jean-Vincent Lacroix 111 rue Champlain Ministère de la Justice (DGAJLAJ) Gatineau, Québec, J8X 3R1 1 rue Notre-Dame East, Suite 8.00 Tel.: 819. 771. 7393 Montréal, Québec, H2Y 1B6 Fax: 819. 771. 5397 Tel.: 514. 393. 2336 [email protected] Fax: 514. 873. 7074 [email protected] [email protected] [email protected]

Counsel for the Intervener, Attorney Agent for the Intervener, Attorney General of Canada General of Canada

Marc Ribeiro Robert Frater Department of Justice Canada, National Litigation Sector Department of Justice Canada, National Litigation Guy-Favreau Complex Sector 200, Boul. René-Lévesque West 50 O’Connor Street, Suite 500 East Tower, 5th Floor Ottawa, Ontario, K1A 0H8 Montreal, Québec, H2Z 1X4 Tel.: 613. 670. 6289 Tel.: 514. 283. 6272 Fax: 613. 954. 1920 Fax: 514. 283. 3856 [email protected] [email protected]

Table of Contents

TABLE OF CONTENTS

APPELLANT’S FACTUM

PAGE

FACTUM

TABLE OF CONTENTS OF THE APPELLANT’S FACTUM I

PART I: OVERVIEW AND STATEMENT OF FACTS 1

PART II: STATEMENT OF THE QUESTIONS IN ISSUE 8

PART III: STATEMENT OF ARGUMENT 9

A. IS THE UNLAWFUL ACT OF PROVIDING AN INTRAVENOUS 9 INJECTION WITHOUT BEING A PHYSICIAN, CONTRARY TO SS. 31, 43, AND 45 OF THE MEDICAL ACT, OBJECTIVELY DANGEROUS?

B. DID THE COURT OF APPEAL ERR IN LAW IN CONCLUDING THAT 14 THE TRIAL JUDGE PERSONALIZED THE MODIFIED OBJECTIVE STANDARD FOR PENAL NEGLIGENCE AND CRIMINAL NEGLIGENCE?

C. DID THE COURT OF APPEAL ERR IN LAW IN INTERFERING WITH 23 THE TRIAL JUDGE’S FINDING THAT THE APPELLANT’S CONDUCT DID NOT AMOUNT TO A MARKED DEPARTURE FROM THE STANDARD OF CARE OF A REASONABLE PERSON IN THE CIRCUMSTANCES?

D. DID THE COURT OF APPEAL ERR IN LAW IN SETTING ASIDE THE 30 ACQUITTALS AND ENTERING A VERDICT OF GUILTY ON THE MANSLAUGHTER CHARGE UNDER S. 686(4)(B)(II) OF THE CRIMINAL CODE?

E. DID THE COURT OF APPEAL ERR IN LAW IN ITS ANALYSIS OF 34 CAUSATION BY FAILING TO CONSIDER WHETHER THE UNLAWFUL ACT, NAMELY PROVIDING AN INTRAVENOUS INJECTION WITHOUT ii Table of Contents

BEING A PHYSICIAN, WAS A SIGNIFICANT CONTRIBUTING CAUSE OF THE DEATH, AND NOT MERELY WHETHER THE INTRAVENOUS INJECTION CAUSED THE DEATH?

F. DO SS. 234 AND 236 OF THE CRIMINAL CODE INFRINGE SS. 6 OR 37 15 OF THE CHARTER, AND, IF SO, IS THE INFRINGEMENT JUSTIFIED UNDER S. 1?

PART IV: SUBMISSIONS RESPECTING COSTS 40

PART V: ORDER SOUGHT 40

PART VI: IMPACT OF THE SEALING ORDERS AND PUBLICATION BAN 40

PART VII: TABLE OF AUTHORITIES 41

NOTICE OF CONSTITUTIONAL QUESTION

NOTICE OF CONSTITUTIONAL QUESTION UNDER SECTION 33(2) OF 47 THE RULES OF THE SUPREME COURT OF CANADA, JUNE 27, 2018

APPELLANT’S FACTUM

Appellant’s Factum Table of Contents

TABLE OF CONTENTS

PART I: OVERVIEW AND STATEMENT OF FACTS ...... 1

1 – OVERVIEW OF THE APPELLANT’S POSITION ...... 1

2 – STATEMENT OF FACTS ...... 2

The Context ...... 2

The Trial Judge’s Decision ...... 6

The Court of Appeal of Quebec’s Decision ...... 7

PART II: STATEMENT OF THE QUESTIONS IN ISSUE ...... 8

PART III: STATEMENT OF ARGUMENT ...... 9

A. IS THE UNLAWFUL ACT OF PROVIDING AN INTRAVENOUS INJECTION WITHOUT BEING A PHYSICIAN, CONTRARY TO SS. 31, 43, AND 45 OF THE MEDICAL ACT, OBJECTIVELY DANGEROUS? 9

(i) The Crown had no right of appeal of the trial judge’s finding that the unlawful act was not objectively dangerous ...... 9

(ii) The unlawful act was not objectively dangerous ...... 11

B. DID THE COURT OF APPEAL ERR IN LAW IN CONCLUDING THAT THE TRIAL JUDGE PERSONALIZED THE MODIFIED OBJECTIVE STANDARD FOR PENAL NEGLIGENCE AND CRIMINAL NEGLIGENCE? ...... 14

(i) Personalization of the objective test vs. contextualization ...... 14

(ii) Creighton should be overruled ...... 17

C. DID THE COURT OF APPEAL ERR IN LAW IN INTERFERING WITH THE TRIAL JUDGE’S FINDING THAT THE APPELLANT’S CONDUCT DID NOT AMOUNT TO A MARKED DEPARTURE FROM THE STANDARD OF CARE OF A REASONABLE PERSON IN THE CIRCUMSTANCES? ...... 23

(i) The Crown had no right of appeal of the trial judge’s finding that there was no marked departure ...... 23

(ii) There was no marked departure ...... 25

D. DID THE COURT OF APPEAL ERR IN LAW IN SETTING ASIDE THE ACQUITTALS AND ENTERING A VERDICT OF GUILTY ON THE MANSLAUGHTER CHARGE UNDER S. 686(4)(B)(II) OF THE CRIMINAL CODE? ...... 30 II

Appellant’s Factum Table of Contents

(i) There was no reasonable degree of certainty that the alleged errors were material to the verdicts ...... 30

(ii) In the alternative, a new trial should have been ordered on the manslaughter charge ...... 32

E. DID THE COURT OF APPEAL ERR IN LAW IN ITS ANALYSIS OF CAUSATION BY FAILING TO CONSIDER WHETHER THE UNLAWFUL ACT, NAMELY PROVIDING AN INTRAVENOUS INJECTION WITHOUT BEING A PHYSICIAN, WAS A SIGNIFICANT CONTRIBUTING CAUSE OF THE DEATH, AND NOT MERELY WHETHER THE INTRAVENOUS INJECTION CAUSED THE DEATH? ...... 34

F. DO SS. 234 AND 236 OF THE CRIMINAL CODE INFRINGE SS. 6 OR 15 OF THE CHARTER, AND, IF SO, IS THE INFRINGEMENT JUSTIFIED UNDER S. 1? ...... 37

PART IV: SUBMISSIONS RESPECTING COSTS ...... 40

PART V: ORDERS SOUGHT ...... 40

PART VI: IMPACT OF THE SEALING ORDERS AND PUBLICATION BAN ...... 40

PART VII: TABLE OF AUTHORITIES ...... 41 1 Appellant’s Factum Overview and Statement of the Facts

PART I: OVERVIEW AND STATEMENT OF THE FACTS

1 – Overview of the appellant’s position [1] This appeal first raises the issue of the scope of Crown appeals against acquittals. As reaffirmed in R v George, “through s. 676(1) (a) of the Criminal Code, Parliament limits Crown appeals against acquittals in proceedings by indictment to ‘question[s] of law alone’.”1 The appellant, Mitra Javanmardi, was acquitted of manslaughter and criminal negligence causing death. During the 40-day trial, 38 witnesses were heard. The trial judge concluded that the unlawful acts upon which the Crown’s theory was based were not objectively dangerous, as required for unlawful act manslaughter. She also found that the required objective mens rea had not been established beyond a reasonable doubt.2 The Court of Appeal of Quebec reversed these conclusions of fact, holding that the trial judge ought to have concluded that providing an intravenous injection is objectively dangerous and that the appellant’s conduct displayed a marked departure from the standard of care expected. In so doing, the Court of Appeal interfered with the trial judge’s findings of facts and drew inferences on the basis of evidence that was vigorously contested at trial.

[2] The appeal also raises the question of the scope of unlawful act manslaughter and whether it infringes ss. 6, 7 and 15 of the Charter.3 For the appellant, that offence should be interpreted so as to exclude any acts by a naturopath which are lawful elsewhere in Canada. To comply with s. 7 of the Charter, unlawful act manslaughter also requires that the underlying act be at least objectively dangerous. What is required is not only objective foresight of any degree of risk of bodily harm, but that the unlawful act was likely to cause such harm. Furthermore, it must be established beyond a reasonable doubt that the unlawful act, and not merely the overall conduct of the accused, was a significant contributing cause of death.

[3] Finally, this Court will be asked to determine whether the majority opinion in R v Creighton4 bars a trier of fact from considering the accused’s past experiences and training

1 R v George, 2017 SCC 38, [2017] 1 SCR 1021 at para 2 [George]. 2 Trial judge’s decision, Appellant’s Record Part I (A.R.), Tab 1, pp 48-49 at paras 438-440, 445, 448. 3 Canadian Charter of Rights and Freedoms, part I of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 4 R v Creighton, [1993] 3 SCR 3, McLachlin J [Creighton]. 2 Appellant’s Factum Overview and Statement of the Facts when examining the evidence about his or her state of mind to assess if the required objective mens rea for penal negligence or criminal negligence was established, as required by R v Beatty.5 If so, Creighton should be revisited.

2 – Statement of Facts

The Context [4] Ms. Javanmardi holds a doctorate of naturopathic medicine from the leading accredited university in the United States. Her four-year training included a year on the basics of medical sciences and 1,500 hours of clinical work in which she was taught intravenous injection techniques.6 Although doctors of naturopathic medicine are not authorized by Quebec law to administer nutrients intravenously, Ms. Javanmardi was, according to the trial judge, competent to do so. In fact, between 1992 and June 2008, she administered intravenous injections to approximately ten patients a week.7

[5] Since undergoing aortic valve replacement surgery in 2003, Roger Matern was weakened. He suffered from restrictive cardiomyopathy (heart disease), problems with his tricuspid valve as well as high blood pressure.8 He could not walk for extended periods of time, so his wife had bought him a walker.9 He was followed on a regular basis by the Heart Failure Clinic of the Montreal Heart Institute, where doctors were unable to drain the water from his lungs. On June 11, 2008, now 84 years old, he was seen by Dr. Normand Racine, a cardiologist at the Heart Failure Clinic, who increased his dose of Lasix, a diuretic.10

[6] The next day, following the suggestion of a family friend, Mr. Matern went to Ms. Javanmardi’s clinic with his wife. He was resentful toward the conventional medical system.11 He wanted to remove the water from his lungs, to improve his quality of life and to be able to travel

5 R v Beatty, 2008 SCC 5, [2008] 1 SCR 49 at paras 43, 47, 49 [Beatty]. 6 Trial judge’s decision, A.R., Tab 1, pp 24, 39, 47 at paras 226-228, 346, 433. 7 Trial judge’s decision, A.R., Tab 1, pp 25, 39, 48-49 at paras 236, 347, 437, 449. 8 Exhibit P-42, Extrait du dossier de la clinique Clic de Monsieur Matern, Her Majesty the Queen’s factum at the Court of Appeal (“A.F. C.A.”), vol 4, p 1203; Examination of Normand Racine, A.F. C.A., vol 11, pp 4425-4433. 9 Cross-examination of Gabrielle Matern, A.F. C.A., vol 7, p 2488. 10 Trial judge’s decision, A.R., Tab 1, p 2 at paras 4-5, 8. 11 Cross-examination of Gabrielle Matern, A.F. C.A., vol 7, pp 2483-2485. 3 Appellant’s Factum Overview and Statement of the Facts again.12 Aware that she was not a physician, he consulted Ms. Javanmardi.13 They discussed his state of health for about one hour. His list of medications was provided to Ms. Javanmardi, who recommended some nutrients.

[7] Mr. Matern insisted on starting an intravenous injection treatment that day, despite Ms. Javanmardi’s explanation that she did not usually do so on a first visit.14 Given the advanced state of his condition, she agreed to administer some nutrients intravenously, a treatment she considered particularly suitable. On a number of past occasions, she had provided similar treatments to people suffering from congestive heart failure.15

[8] Ms. Javanmardi prepared a solution containing magnesium chloride, manganese chloride, potassium chloride, L-Taurine, L-Carnitine, and sterile water.16 According to her, this recipe could improve Mr. Matern’s condition.17 Dr. White, the Crown’s cardiologist witness, conceded that the solution was benign.18 The trial judge concluded that these nutrients were suitable to Mr. Matern’s heart condition and were safe.19 Ms. Javanmardi began the intravenous infusion. She asked her secretary to check up on him after a few minutes and from time to time as she went to a consultation room to meet with another individual.20

[9] Approximately ten minutes later, Mr. Matern started complaining that he was hot. Ms. Javanmardi came to check up on him straight away and immediately discontinued the IV. She accompanied him to an adjacent room so that he could lie down. Mr. Matern was shivering, so she put a blanket on him. She thought he could be having either a vasovagal or a hypoglycaemic reaction, something she had witnessed during her career.21 She checked his vital signs: his blood

12 Trial judge’s decision, A.R., Tab 1, p 2 at paras 5-6. 13 Trial judge’s decision, A.R., Tab 1, p 44 at para 405. 14 Trial judge’s decision, A.R., Tab 1, pp 3, 26, 45 at paras 10, 244-246, 407. 15 Trial judge’s decision, A.R., Tab 1, pp 27, 45 at paras 254-256, 410-411. 16 Trial judge’s decision, A.R., Tab 1, p 40 at para 352. 17 Trial judge’s decision, A.R., Tab 1, pp 27, 45 at paras 254-256, 410-411. 18 Trial judge’s decision, A.R., Tab 1, p 44 at para 402; Cross-examination of Dr. Michel White, A.F. C.A., vol 10, p 4018-4019. 19 Trial judge’s decision, A.R., Tab 1, pp 20, 31, 44-45, 49 at paras 183, 297-298, 402, 404, 410, 444. 20 Examination of Iris Trommer, A.F. C.A., vol 6, p 2207. 21 Examination of Mitra Javanmardi, A.F. C.A., vol 14, pp 5475-5478. 4 Appellant’s Factum Overview and Statement of the Facts pressure, temperature, pulse, respiratory rate, blood sugar, and blood saturation were all normal.22 Since there was no fever, no confusion and no sign of infection on the site of the injection, Ms. Javanmardi also eliminated the possibility of a septic shock. Throughout her career, no patient had ever been infected during an IV.23

[10] Mr. Matern’s daughter arrived shortly after and discussed her father’s condition with Ms. Javanmardi, who told her that he may have had a hypoglycaemic reaction given that he had not eaten since breakfast. Ms. Javanmardi recommended that he ingest some sugar, be it honey or orange juice. Mr. Matern’s daughter went downstairs to buy some orange juice and honey, which Mr. Matern later consumed.24 In the meantime, he told Ms. Javanmardi that he had experienced such fatigue before and repeated that he would not go to the hospital.25

[11] At around 3 or 4 p.m., Mr. Matern and his family left the clinic. According to Ms. Javanmardi, who was found credible by the trial judge26, Mr. Matern was answering her questions, telling her he was fine and that he was sorry. Before they left, Ms. Javanmardi advised Mr. Matern’s wife and daughter to give him nutrients and that he should rest. According to Ms. Javanmardi, they sat him on a walker with a chair they had in one of the cars and took him to his daughter’s car.27 While they were in her car, Mr. Matern’s daughter asked him if he wanted to go to the hospital, and he shook his head no.28

[12] During the evening, Mr. Matern appeared to be confused at first, but then seemed to improve.29 His daughter asked him, while he was lying in bed, if he wanted to go to the hospital, and he shook his head no.30 During this period, one or two telephone conversations took place between Mr. Matern’s daughter and Ms. Javanmardi. According to Ms. Javanmardi, whose

22 Exhibit D-9a, Notes personnelles de Madame Javanmardi, A.F. C.A., vol 5, p 1512; Examination of Mitra Javanmardi, A.F. C.A., vol 14, pp 5439-5440. 23 Trial judge’s decision, A.R., Tab 1, pp 31, 39 at paras 288, 343. 24 Trial judge’s decision, A.R., Tab 1, pp 3, 29 at paras 15, 267. 25 Trial judge’s decision, A.R., Tab 1, pp 29, 39, 47 at paras 270, 343, 426. 26 Trial judge’s decision, A.R., Tab 1, p 39 at para 343. 27 Trial judge’s decision, A.R., Tab 1, p 29 at para 274; Examination of Mitra Javanmardi, A.F. C.A., vol 14, pp 5492-5493. 28 Trial judge’s decision, A.R., Tab 1, pp 4, 29, 47 at paras 22, 275, 426. 29 Trial judge’s decision, A.R., Tab 1, pp 4, 49 at paras 23-24, 446. 30 Trial judge’s decision, A.R., Tab 1, pp 4, 47 at paras 24, 426. 5 Appellant’s Factum Overview and Statement of the Facts testimony was accepted by the trial judge, Mr. Matern’s daughter told her that his pulse and heart rate were stable, that he was resting and that his breathing and colour were good. Ms. Javanmardi told her that he should be hydrated, and to bring him to the hospital if she was not able to do so.31 Around 3 a.m., when Mr. Matern’s daughter woke up, she noticed that her father’s lips were blue and his skin no longer had the good colour it did when they returned from the clinic.32 She called an ambulance and Mr. Matern was taken to Hôpital Saint-Luc against his will.33

[13] Upon his arrival at the hospital, Mr. Matern was seen by an emergentologist. According to him, the patient’s condition was extremely severe.34 A few hours later, Mr. Matern passed away.

[14] According to the Crown’s theory, which was accepted by the trial judge, the death of Mr. Matern was attributable to an endotoxic shock caused by the presence of a bacteria (Pantoea) in one of the substances (L-Carnitine) injected by Ms. Javanmardi.

[15] On the day of Mr. Matern’s death, the vials used to prepare the solution injected by Ms. Javanmardi were seized in her office. Microbial and endotoxic analyzes were performed on June 25, 2008—nearly two weeks later, following a seizure and storage procedure that, according to the appellant, undermined their reliability. The results revealed that the vial containing L-Carnitine also contained a large number of bacteria (Pantoea) and endotoxins. This number was well in excess of the standards fixed by Health Canada.35 The trial judge found that, at the time of the injection, the L-Carnitine vial contained enough bacteria to cause the death of Mr. Matern.36

[16] According to Health Canada’s microbiologist Julie Bellemare, these bacteria may have been introduced either when the L-Carnitine was injected in the vial at the pharmacy, by a poor sterilization of the vial or septum when the product was assembled, or by a contaminated syringe.37

[17] When Ms. Javanmardi drew L-Carnitine from the vial to prepare the solution that was injected into Mr. Matern, she had already drawn from that same vial one to four hours before for

31 Trial judge’s decision, A.R., Tab 1, pp 30, 39 at paras 278-279, 343. 32 Examination of Gabrielle Matern, A.F. C.A., vol 7, pp 2461-2462. 33 Trial judge’s decision, A.R., Tab 1, p 47 at para 426. 34 Trial judge’s decision, A.R., Tab 1, pp 6-7 at paras 49-50. 35 Trial judge’s decision, A.R., Tab 1, pp 10-11, 40-41 at paras 86-95, 360-366, 369. 36 Trial judge’s decision, A.R., Tab 1, pp 42-43 at paras 375, 396. 37 Trial judge’s decision, A.R., Tab 1, p 10 at para 90; Examination of Julie Bellemare, A.F. C.A., vol 9, pp 3637-3642. 6 Appellant’s Factum Overview and Statement of the Facts two other patients, who showed no symptoms.38 It was a single-dose vial containing no preservative. Ms. Javanmardi kept these single-dose vials for 3–4 hours following their use and disposed of them, at the latest, the next day to avoid any risk of contamination.39 The evidence showed that it was a practice that was sometimes followed by physicians and in public hospitals.40

The Trial Judge’s Decision [18] More than a year after the end of a forty-day trial, Villemure J of the Court of Quebec acquitted Ms. Javanmardi of criminal negligence causing death and manslaughter. She accepted the testimony of the Crown experts, and found that Mr. Matern died as a result of an endotoxic shock attributable to the presence of Pantoea in the vial which contained the L-Carnitine.41

[19] She found Ms. Javanmardi to be a credible witness and accepted her testimony.42

[20] With respect to the count of criminal negligence causing death, the trial judge’s reason indicates that Ms. Javanmardi’s conduct did not demonstrate a wanton or reckless disregard for the life or safety of Mr. Matern. She emphasized that, but for the presence of the bacteria and endotoxins, the solution injected to Mr. Matern was suitable to his heart condition and safe.43 She also noted that Mr. Matern knew that Ms. Javanmardi was not a physician, wanted an intravenous injection of nutrients, and accepted the inherent risks.44 She found that Ms. Javanmardi purchased her nutrients from Ontario pharmacists who complied with the highest of standards, that she was authorized to do so in Ontario as a doctor of naturopathic medicine, and that the bacteria were plausibly introduced in the vial following the second injection.45 According to the trial judge, compliance with the rules of asepsis was a preoccupation of Ms. Javanmardi and the measures put

38 Trial judge’s decision, A.R., Tab 1, pp 41, 46 at paras 374, 416. 39 Trial judge’s decision, A.R., Tab 1, p 27 at para 251; Examination of Mitra Javanmardi, A.F. C.A., vol 13, pp 5378-5384, 5397-5398. 40 Examination of Dr. Alan Robert Gaby, A.F. C.A., vol 16, pp 6471-6473; Examination of Dr. Ruben Becker, A.F. C.A., vol 18, pp 7557-7559. See also Examination of Denis Brouillette, A.F. C.A., vol 11, pp 4519-4520. 41 Trial judge’s decision, A.R., Tab 1, pp 40, 42-43 at paras 351, 375, 382, 389, 395-396. 42 Trial judge’s decision, A.R., Tab 1, p 39 at paras 343-345. 43 Trial judge’s decision, A.R., Tab 1, pp 20, 31, 44-45, 49 at paras 183, 297-298, 402, 404, 410, 444. 44 Trial judge’s decision, A.R., Tab 1, pp 44-45 at paras 405-409. 45 Trial judge’s decision, A.R., Tab 1, pp 45-46 at paras 414-418. 7 Appellant’s Factum Overview and Statement of the Facts in place were sufficient.46 With respect to the alleged failure of Ms. Javanmardi to perform a legal duty, the trial judge concluded that Mr. Matern had refused to go to the hospital on three occasions and that, in any event, from the moment he received the injection, his death was inevitable given the number of endotoxins.47

[21] Holding that the mens rea for the offence of criminal negligence causing death required that Ms. Javanmardi’s conduct constituted a marked departure from the conduct of a reasonable person in the same circumstances, the trial judge concluded that it was not the case here, and that a reasonable person would not have been aware of any risk or danger involved in her conduct.48

[22] With respect to the charge of manslaughter, the trial judge was of the opinion that the Crown needed to establish, inter alia, that a reasonable person in the same circumstances would have foreseen the risk of death.49 She concluded that the unlawful acts identified by the Crown were not objectively dangerous, including the intravenous injection.50 She also found that the injection did not give rise to a risk of harm.51 According to the trial judge, Ms. Javanmardi had the necessary skills to administer intravenous injections and had taken the necessary precautions, even if she was not authorized to do so under Quebec law.52 Thus, she found that the Crown had not proven beyond a reasonable doubt that Ms. Javanmardi had caused the death of Mr. Matern by means of an unlawful act or by criminal negligence.53

The Court of Appeal of Quebec’s Decision [23] On appeal by the Crown, the Court of Appeal of Quebec found that the trial judge erred in law with respect to the requisite mens rea for the offence of manslaughter. Gagnon JA, writing for the Court, explained that, according to the majority in Creighton, foreseeability of the risk of death is not required. Objective foreseeability of the risk of bodily harm is sufficient. In addition,

46 Trial judge’s decision, A.R., Tab 1, p 46 at paras 422-423. 47 Trial judge’s decision, A.R., Tab 1, p 47 at paras 428-429. 48 Trial judge’s decision, A.R., Tab 1, pp 36, 47-48 at paras 332-336, 431-440. 49 Trial judge’s decision, A.R., Tab 1, pp 38, 49 at paras 338, 450. 50 Trial judge’s decision, A.R., Tab 1, p 49 at para 445. 51 Trial judge’s decision, A.R., Tab 1, p 49 at para 448. 52 Trial judge’s decision, A.R., Tab 1, p 49 at para 449. 53 Trial judge’s decision, A.R., Tab 1, p 50 at paras 451-452. 8 Appellant’s Factum Statement of the Questions in Issue he held that the trial judge erred in law in failing to conclude that, on the basis of her findings of fact, (1) the intravenous injection was an objectively dangerous unlawful act, (2) Ms. Javanmardi’s conduct amounted to a marked departure, and (3) a reasonable person in similar circumstances would have been aware of the risk created by this conduct. Moreover, the Court of Appeal was of the view that the trial judge erred in law when she considered Ms. Javanmardi’s training in naturopathy to conclude that there was no marked departure. On the count of criminal negligence causing death, the Court of Appeal also found that the trial judge erred in law in requiring only a marked departure instead of a marked and substantial departure. According to the Court of Appeal, there was a reasonable degree of certainty that the errors made by the trial judge were material to the verdict of acquittal. The court therefore set aside the acquittals, ordered a new trial on the count of criminal negligence causing death, and substituted a verdict of guilty for manslaughter.

[25] Gagnon JA also rejected the constitutional arguments raised by Ms. Javanmardi. He concluded that residence, place of business, and professional status are not analogous grounds of discrimination under s. 15 of the Charter, and that s. 6(2) does not establish a distinct right to work and does not preclude the enactment of legislation regulating the practice of a profession. With regard to s. 7 of the Charter, he held that the fault requirements for manslaughter and criminal negligence causing death were sufficient. He also found that, for unlawful act manslaughter, the predicate unlawful act may be any offence prohibited by federal or provincial statute or regulation, provided that it requires at least a marked departure and is objectively dangerous.

PART II: STATEMENT OF THE QUESTIONS IN ISSUE

[26] The grounds of appeal raised in notice of appeal may be grouped as follows:

A. Is the unlawful act of providing an intravenous injection without being a physician, contrary to ss. 31, 43, and 45 of the Medical Act, objectively dangerous?

B. Did the Court of Appeal err in law in concluding that the trial judge personalized the modified objective standard for penal negligence and criminal negligence?

C. Did the Court of Appeal err in law in interfering with the trial judge’s finding that the appellant’s conduct did not amount to a marked departure from the standard of care of a reasonable person in the circumstances?

Appellant’s Factum 9 Statement of Argument

D. Did the Court of Appeal err in law in setting aside the acquittals and entering a verdict of guilty under s. 686(4)(b)(ii) of the Criminal Code?

E. Did the Court of Appeal err in law in its analysis of causation by failing to consider whether the unlawful act, namely providing an intravenous injection without being a physician, was a significant contributing cause of the death, and not merely whether the intravenous injection caused the death?

F. Do ss. 234 and 236 of the Criminal Code infringe ss. 6 or 15 of the Charter, and, if so, is the infringement justified under s. 1?

PART III: STATEMENT OF ARGUMENT

A. Is the unlawful act of providing an intravenous injection without being a physician, contrary to ss. 31, 43, and 45 of the Medical Act, objectively dangerous?

(i) The Crown had no right of appeal of the trial judge’s finding that the unlawful act was not objectively dangerous

[27] Not all unlawful acts can support a conviction for unlawful act manslaughter. As explained in R v DeSousa, the term “unlawful” in s. 222(5)(a) Cr.C. should be read as requiring “that the unlawful act be at least objectively dangerous.”54 In Creighton, McLachlin J (as she then was) stated that an objectively dangerous unlawful act is one “that is likely to injure another person.”55

[28] The question of whether an unlawful act is objectively dangerous is a question of mixed fact and law and the Court of Appeal could not substitute its conclusion on that issue for that of the trial judge. It cannot be determined in the abstract. It requires the trier of fact to examine the circumstances in which the unlawful act would have been committed.56 For example, in Creighton, it was not the trafficking of a narcotic per se that was found to be objectively dangerous, but the injection of cocaine into another person.57 In other words, it involves “applying a legal standard to

54 R v DeSousa, [1992] 2 SCR 944 [DeSousa] at p 961. See also Creighton, supra note 4 at pp 43- 45, McLachlin J. 55 Creighton, supra note 4 at p 43, McLachlin J. 56 See e.g. R v Vogel, 2011 ONCA 342 at paras 5-8. See also R v Bristow, [2013] EWCA Crim 1540 at paras 34-36 (UK). 57 Creighton, supra note 4.

Appellant’s Factum 10 Statement of Argument a set of facts”.58 This categorization as a question of mixed fact and law is especially true in a case that raises unique circumstances that are unlikely to recur in the future.59

[29] It is well settled that the dangerousness of an unlawful act is matter to be left to the trier of fact. In R v Cole, it was explained in these terms by Lacourciere JA:

I may say, however, that if I were satisfied that the giving of the prescription drugs constituted an unlawful act, I would have found it necessary for the trial judge to explain the requirement of dangerousness to the jury and to direct them that they could only arrive at a verdict of manslaughter by this route if they were satisfied beyond a reasonable doubt that the giving of the capsules to the deceased in quantities beyond what is considered normal therapeutic dosage was a dangerous practice. While one may think that the jury of reasonable persons would have no difficulty with this requirement, it was nonetheless a factual one to be determined by them on the evidence which they accepted, and not a question of law for the determination of the presiding judge.60 [Emphasis added.]

[30] In this case, the trial judge found that, on the basis of disputed evidence, the unlawful acts relied on by the Crown, including the intravenous injection, were not objectively dangerous and that a reasonable person would not have foreseen the risk of harm.61

[31] Relying on the proposition made in R v J.M.H. that “the legal effect of findings of fact or undisputed facts raises a question of law”62, the Court of Appeal considered that it could substitute its conclusion that the unlawful act was objectively dangerous for that of the trial judge.63 However, not all the facts relied upon by the Court of Appeal were findings of fact made by the trial judge nor were they undisputed facts. For instance, Gagnon JA held as an undisputed fact that

58 Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235 at para 26, Iacobucci and Major JJ. 59 See generally Ledcor Construction Ltd. v Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 SCR 23 at para 41; Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, [2014] 2 SCR 633 at para 51; Canada (Director of Investigation and Research) v Southam Inc., [1997] 1 SCR 748 at para 37. 60 R v Cole (1981), 64 CCC (2d) 119 at 133 (Ont CA). See also R v Adkins (1987), 39 CCC (3d) 346 , 1987 CanLII 2413 at para 37 (BC CA); R v Vogel, supra note 56 at paras 5-8; the Honourable Mr. Justice David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed (Toronto: Carswell, 2015) at pp 738-739, Appellant’s Book of Authorities (A.B.A.), Tab 19, pp 235-236; Tony Storey, “Unlawful and Dangerous: A Comparative Analysis of Unlawful Act Manslaughter in English, Australian and Canadian Law” (2017) 81:2 J Crim Law 143 at p 156, A.B.A., Tab 14, p 181. 61 Trial judge’s decision, A.R., Tab 1, p 49 at para 445. 62 R v J.M.H., 2011 SCC 45, [2011] 3 SCR 197 at para 28. 63 Judgment appealed from, A.R., Tab 2, p 76 at para 95.

Appellant’s Factum 11 Statement of Argument

Ms. Javanmardi “was not able to recognize the symptoms of foreseeable complications associated with IV or to react appropriately when they occur.”64 However, not only was such a finding of fact never made by the trial judge, but she concluded that “Ms. Javanmardi has the skills to administer IV at every step”.65

[32] In the absence of an error of law, the Crown had no right of appeal from Ms. Javanmardi’s acquittal, even though it disagreed with the trial judge’s conclusion that the IV was not objectively dangerous in the circumstances of this case. Thus, the Court of Appeal was without jurisdiction and should not have interfered with the trial judge’s conclusion.

(ii) The unlawful act was not objectively dangerous

[33] Alternatively, if this Court determines that whether an unlawful act is objectively dangerous raises a question of law, then it is submitted that the violation of the Medical Act66 was not objectively dangerous. The fact that a doctor of naturopathic medicine administers an IV without being a physician, and thus legally authorized to do so in the province of Quebec, is not an unlawful act which was likely to injure another person, as required by Creighton.67

[34] To comply with the requirements of s. 7 of the Charter, the underlying unlawful act must be objectively dangerous. The degree of risk required to conclude that an unlawful act is dangerous was not directly addressed in DeSousa and Creighton. In DeSousa, Sopinka J wrote that the unlawful act must be “likely to injure another person”68 or, to put it another way, “likely to subject another person to danger of harm or injury.”69 Yet the two formulations do not involve the same level of risk. The first involves a likely or probable harm, while the second only requires that the harm be possible. The first wording was taken from the leading English authority on the issue: R v Larkin.70 With regard to the second wording, it seems to originate from another leading

64 Ibid, p 76 at para 92 [our translation]. 65 Trial judge’s decision, A.R., Tab 1, p 49 at para 449 [our translation]. 66 Medical Act, CQLR c M-9, ss 31, 43, 45. 67 Creighton, supra note 4 at p 43, McLachlin J. 68 DeSousa, supra note 54 at p 959. 69 Ibid at p 961. 70 R v Larkin, [1943] 1 All ER 217 at p 219 (Ct CA), A.B.A., Tab 2, p 10.

Appellant’s Factum 12 Statement of Argument

English case, R v Church.71 In DPP v Newbury72, the House of Lords approved the test as set out in Larkin and explained that Church was only a restatement of the same principle. Canadian authorities before DeSousa employed either Larkin or Church formulations of the test.73

[35] In Creighton, McLachlin J did not specify the degree of risk required. Referring to DeSousa, she stated that “[t]the unlawful act must be objectively dangerous, that is likely to injure another person.”74 Yet, she subsequently used the terms “foreseeability of bodily harm”75 and “foreseeability of the risk of bodily harm”.76 What should be foreseeable: bodily harm or a risk of bodily harm? Foreseeability of bodily harm suggests something more than the mere possibility of harm, contrary to foreseeability of the risk of bodily harm.

[36] Thus, although this Court in Creighton concluded that objective foresight of bodily harm— and not death—is sufficient for unlawful act manslaughter, Professor Stanley Yeo notes that the degree of risk required remains unclear.77 We concur that it is only when the bodily harm foreseen was likely to occur, that is probable, that the required fault element should be established.78 This level of fault is required so as to comply with s. 7 of the Charter. Moreover, this interpretation is consistent with the state of the law in other common law jurisdictions. As an example, Australian courts have long recognized that the unlawful act must create an “appreciable risk.”79 Finally, such

71 R v Church, [1965] 2 All ER 72 at p 76 (Ct CA). 72 DPP v Newbury, [1976] 2 All ER 365 at p 367. But see R v Carey, [2006] EWCA Crim 17 at para 31, in which the Court of Appeal (Criminal Division) noted that there is a difference between the tests set out in Larkin and Church regarding the degree of risk required and opted, in obiter, for the Church formulation, i.e. foresight of the risk of harm. 73 For wordings similar to the Larkin test, see e.g. R v Lelievre (1962), 132 CCC 288 at p 295 (Ont CA); R v Adkins, supra note 60 at paras 36-37. For wordings similar to the Church test, see R v Tennant and Naccarato (1975), 23 CCC (2d) 80 at p 96 (Ont CA). 74 Creighton, supra note 4 at p 43, McLachlin J. 75 Ibid at 43, 55, 58. 76 Ibid at 45, 57. 77 Stanley Yeo, “The Fault Elements for Involuntary Manslaughter: Some Lessons from Downunder” (2000) 43 Crim LQ 291 at p 294, A.B.A., Tab 22, p 300. See also Isabel Grant, Dorothy Chunn & Christine Boyle, The Law of Homicide (Toronto: Carswell, 1994) (looseleaf), ch 4 at p 20, A.B.A., Tab 7, p 112. 78 Yeo, supra note 77 at p 295, A.B.A., Tab 22, p 301. 79 Wilson v R, [1992] HCA 31 at para 48. See also, with respect to the law in England and Wales, David Ormerod & Karl Laird, Smith, Hogan and Ormerod’s Criminal Law, 15th ed (Oxford:

Appellant’s Factum 13 Statement of Argument an interpretation is also consistent with the degree of probability usually required for recklessness.80 If subjective foresight of a “substantial and unjustified risk” is required for recklessness,81 a similar degree of risk should be required for imposing criminal liability to someone who should have foreseen that risk.

[37] Also, it is what renders the act unlawful that must be objectively dangerous. It is not sufficient to find that intravenous administration of nutrients is arguably dangerous: so are all surgeries, most sports, driving an automobile and many other activities. It is the illegality which must constitute the danger. Illegality of an administrative sort does not permit conviction for manslaughter, unless the illegality makes bodily harm likely to occur, which was not the case here. For instance, a surgical intervention by a reputable foreign doctor unlicensed to practise in Quebec should not be sufficient to support a manslaughter conviction. Neither should the suspension of a driver’s license. Bodily harm must be foreseeable from the illegal nature of the act.

[38] In this case, the breach of the requirement to hold a permit under a provincial system of licensing to engage in an activity reserved to physicians was not an objectively dangerous unlawful act. The principles of fundamental justice enshrined in s. 7 of the Charter require that not every statutory illegality can form the basis of an unlawful act manslaughter conviction—only those that are objectively dangerous. Persons trained like the accused have the right to administer nutrients intravenously in many provinces, which shows that it is not inherently dangerous. The violation of the Medical Act82 by administering an IV without being a physician and thus legally authorized to do so in the province of Quebec was not likely to injure another person.

[39] This is not a case where the injected substance was dangerous in itself, as in Creighton.83 On the contrary, the trial judge found that the solution injected by Ms. Javanmardi to Mr. Matern was suited to his heart condition and was safe.84 Moreover, the bacteria could not be detected.

Oxford University Press, 2018) at p 579 (the Church test “suggests more than a mere possibility, but not perhaps that harm is more probable than not.”). 80 Morris Manning & Peter Sankoff, Manning, Mewett & Sankoff: Criminal Law, 5th ed (Markham: LexisNexis, 2015) at pp 228-230, A.B.A., Tab 10, pp 136-138. 81 See R v Hamilton, 2005 SCC 47, [2005] 2 SCR 432 at paras 28-29. 82 Medical Act, supra note 66, ss 31, 43, 45. 83 Creighton, supra note 4 at p 16, 34, 75. 84 Trial judge’s decision, A.R., Tab 1, pp 20, 31, 44-45, 49 at paras 183, 297-298, 402, 404, 410, 444.

Appellant’s Factum 14 Statement of Argument

[40] The Court of Appeal is setting a dangerous precedent by concluding that all intravenous injections are objectively dangerous.85 One must consider the caregiver who administers an IV therapy to a loved one at home as part of a medical program. Or the individual who intravenously injects a peer in a supervised consumption site exempted from the prohibitions of the Controlled Drugs and Substances Act86 under s. 56.1 of that Act. These are just a few examples that demonstrate how critical it is to consider the context in which an IV is administered in determining whether it was likely to injure another person and thus objectively dangerous.

[41] Although she was not authorized by Quebec law to administer nutrients intravenously, Ms. Javanmardi was competent to do so and took the necessary precautions.87 She had been administering intravenous injections for more than a decade several times a week88 and never had a vial become contaminated with bacteria.89 The trial judge made no error of law in concluding that the unlawful act was not objectively dangerous and that a reasonable person would not have foreseen the risk of harm.90

B. Did the Court of Appeal err in law in concluding that the trial judge personalized the modified objective standard for penal negligence and criminal negligence?

(i) Personalization of the objective test vs. contextualization

[42] The trial judge did not err in law in considering Ms. Javanmardi’s training in naturopathic medicine to conclude that there was no marked departure from the standard of care that a reasonable person in the same circumstances would have observed. She did not personalize the modified objective test for mens rea. Instead, she took into consideration Ms. Javanmardi’s education and professional experience to account for her actual state of mind.

85 Judgment appealed from, A.R., Tab 2, p 76 at para 93. 86 Controlled Drugs and Substances Act, SC 1996, c 19, s 56.1, as modified by An Act to amend the Controlled Drugs and Substances Act and to make related amendments to other Acts, SC 2017, c 7, s 42. 87 Trial judge’s decision, A.R., Tab 1, p 49 at para 449. 88 Trial judge’s decision, A.R., Tab 1, pp 25, 39, 48-49 at paras 236, 347, 437, 449. 89 Trial judge’s decision, A.R., Tab 1, p 45 at para 409. 90 Trial judge’s decision, A.R., Tab 1, p 49 at para 445.

Appellant’s Factum 15 Statement of Argument

[43] In Creighton, McLachlin J, for the majority, held that, short of incapacity to appreciate the risk, the modified objective test should not take into account personal characteristics of the accused such as age, experience, and education.91 Nevertheless, as explained by Cory J in R v Hundal, “the objective test should not be applied in a vacuum but rather in the context of the events surrounding the incident.”92 McIntyre J, in R v Tutton, was also of the opinion that surrounding circumstances must be considered alongside the accused’s perception of facts when applying the objective test for criminal negligence causing death.93

[44] The distinction between the personal characteristics of the accused and the events surrounding the incident was discussed in Beatty. Charron J reiterated that personal attributes such as age, experience and education should not be taken into account, but that the analysis must be contextualized.94 She summarized the test for the mens rea of dangerous driving—a penal negligence offence—as follows:

In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.95 [Emphasis added.]

Thus, if the test for objective mens rea is not to be personalized, the analysis must nevertheless be contextual. To determine whether there was a marked departure from the standard of care, the accused’s conduct must be assessed against the standard of care that a reasonable person would observe in the same circumstances. Moreover, “the trier of fact must consider evidence about the actual state of mind of the accused, if any, to determine whether it raises a reasonable doubt about

91 Creighton, supra note 4 at p 61, McLachlin J. See also R v Gosset, [1993] 3 SCR 76 at p 102, McLachlin J; R v Finlay, [1993] 3 SCR 103 at p 120, McLachlin J; R v Naglik, [1993] 3 SCR 122 at p 148, McLachlin J. 92 R v Hundal, [1993] 1 SCR 867 at p 886, Cory J. 93 R v Tutton, [1989] 1 SCR 1392 at p 1432. 94 Beatty, supra note 5 at para 40. 95 Ibid at para 43.

Appellant’s Factum 16 Statement of Argument whether a reasonable person in the accused’s position would have been aware of the risk created by this conduct.”96

[45] As explained by Professor Kent Roach, “the Court’s decision in Beatty suggests that courts should not ignore factors subjective to the accused when determining whether the accused has a criminal mens rea based on negligence.”97 The focus of the inquiry remains objective, but “the trier of fact must examine all of the evidence, including any evidence about the accused’s actual state of mind”98 to determine if it raises a reasonable doubt about whether the accused’s conduct “was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited.”99

[46] In this case, after the trial judge explained the modified objective test and the need to consider the explanation offered by the accused to determine whether a reasonable person would have been aware of the risk involved in her conduct,100 she examined Ms. Javanmardi’s education and the experience she has acquired as a naturopath since obtaining her doctorate of naturopathic medicine in 1985.101 The trial judge noted in particular that since 1992, Ms. Javanmardi administered IVs to approximately ten patients a week.102 Hence, Ms. Javanmardi’s education and experience were not considered to personalize the modified objective test for mens rea and to invest the reasonable person with an enhanced or diminished foresight as suggested by Lamer CJC’s minority opinion in Creighton. Rather, they were considered to evaluate Ms. Javanmardi’s state of mind as per Beatty. The focus was not on what was in Ms. Javanmardi’s mind when she provided the IV, but on what should have been in the mind of a reasonable person. Yet what was in Ms. Javanmardi’s mind remained relevant in that it could raise a reasonable doubt about whether a reasonable person would have foreseen the risk.103

96 Ibid at para 49. 97 Kent Roach, Criminal Law, 6th ed (Toronto: Irwin Law, 2015) at p 206, A.B.A., Tab 12, p 156. 98 R v Roy, 2012 SCC 26, [2012] 2 SCR 60 at para 39 [Roy]. 99 Ibid at para 41. 100 Trial judge’s decision, A.R., Tab 1, p 47 at paras 431-432. 101 Trial judge’s decision, A.R., Tab 1, p 47-48 at paras 433-437. 102 Trial judge’s decision, A.R., Tab 1, p 48 at para 437. 103 Beatty, supra note 5 at paras 43, 49; Roy, supra note 98 at paras 39-41.

Appellant’s Factum 17 Statement of Argument

[47] As an example, in Salame v R104, a criminal negligence causing death case, Gendreau JA for the Court of Appeal of Quebec took into account the experience and the training of the accused as elements pertaining to his state of mind and thus relevant to determine whether a reasonable person in the same circumstances would have foreseen the risk. In Salame, the accused had sold some arak, an aniseed-flavoured beverage, that he had manufactured to a convenience store. The arak was then purchased from the convenience store and served at a dinner party where several people who consumed the beverage were severely poisoned and one of them died. In evaluating the accused’s state of mind, Gendreau JA considered the fact that he learned how to produce the spirituous liquor from an arak producer in Lebanon and that he tasted it and served it on some occasions to friends and family, without anyone feeling sick:

Would a reasonable person in an identical situation have been aware of the risk created by the production of arak? In my opinion, the evidence, as it was presented, makes it possible to seriously doubt this. The description of the accused’s state of mind at the time of the judgment a quo shows that he was certain that his conduct did not endanger his own health or that of his loved ones or the public. This is based on three undisputed facts. First, he always followed the same production process he was taught by people he had adequate reasons to trust. Second, each time he tasted the product himself and served it to his friends and family, and no one felt unwell after tasting it, on the contrary. Third, the experience of his initial effort or efforts (it is not clear whether he produced the drink two or three times) could only have reassured him that he was acting correctly and was providing a healthy drink in December 1990. In my opinion, a person in such a situation could have a reasonable objective conviction of not endangering the safety of others…105 [Emphasis added.]

[48] As in Salame, the trial judge in this case could take into account the training and the experience of Ms. Javanmardi to evaluate her state of mind. In light of that evidence, she could thus have a reasonable doubt about whether a reasonable person in the same circumstances would have foreseen the risk involved in her conduct and about whether there was a marked departure from the standard of care that a reasonable person would have observed in the circumstances.106

(ii) Creighton should be overruled

[49] Alternatively, should this Court conclude that the trial judge did in fact personalize the modified objective test for mens rea, the appellant respectfully submits that the majority’s

104 Salame v R, 2010 QCCA 64 [Salame]. 105 Ibid at para 52. 106 Trial judge’s decision, A.R., Tab 1, p 48 at paras 438-439.

Appellant’s Factum 18 Statement of Argument conclusion in Creighton that, short of incapacity, personal characteristics such as age, education and experience should not be taken into account in the application of the modified objective test for fault, should be overruled or, at a minimum, held not to apply to criminal negligence.

[50] Technically, as far as criminal negligence is concerned, there would be no need to overrule Creighton, which was an unlawful act manslaughter case. Both the majority and the dissenting judges chose not to discuss manslaughter by criminal negligence.107 Subsequently, in R v J.F.108, Fish J noted in obiter for a unanimous Court that the fault element for criminal negligence was “a marked and substantial departure (as opposed to a marked departure) from the conduct of a reasonably prudent parent in circumstances where the accused either recognized and ran an obvious and serious risk to the life of his child or, alternatively, gave no thought to that risk.” That decision was interpreted as confirming that criminal negligence requires a modified objective mens rea rather than a subjective fault, thus putting an end to the uncertainty created by the 3-3 split in Tutton and Waite.109 Yet Fish J pointed out in J.F. that “[t]his case [did] not turn on the nature or extent of the difference between the two standards”110, namely penal negligence and criminal negligence. This Court was silent as to whether the personal characteristics of an accused can be considered in the application of the modified objective test for criminal negligence, contrary to what was held for penal negligence in Creighton. Such a modification to the objective test for criminal negligence would be welcome since this offence requires a higher level of moral blameworthiness than that required for penal negligence offences.111

[51] In any event, even for penal negligence offences, the objective test should allow a trier of fact to take into account characteristics of the accused such as age, experience, and education, despite the majority opinion in Creighton.

107 Creighton, supra note 4 at pp 36, 75. 108 R v J.F., 2008 SCC 60, [2008] 3 SCR 215 at para 9. See also R v A.D.H., 2013 SCC 269, [2013] 2 SCR 269 at para 61. 109 R v Tutton, supra note 93; R v Waite, [1989] 1 SCR 1436. See also R v Anderson, [1990] 1 SCR 265. 110 R v J.F., supra note 108 at para 10. 111 See David M Tanovich, “The Implications of Beatty For Criminal Negligence” (2008), 54 CR (6th) 38 at p 42-44, A.B.A., Tab 18, pp 230-232.

Appellant’s Factum 19 Statement of Argument

[52] This Court has the power to revisit one of its own precedents and it has done so on a number of occasions.112 As explained by Rothstein J in Canada v Craig, “in making this decision the Supreme Court engages in a balancing exercise between the two important values of correctness and certainty.”113 In R v Bernard, Dickson CJC identified some factors to consider before overruling a precedent which are particularly helpful in the case at bar: whether it was attenuated by subsequent cases, the uncertainty created by that precedent, and whether it establishes a rule favourable or unfavourable to the accused.114

[53] Firstly, developments in the post-Creighton case law call into question the position adopted by the majority. For instance, a few years after Creighton, this Court in R v Hibbert unanimously held that, for the defences of self-defence, duress and necessity, “the appropriate objective standard to be employed is one that takes into account the particular circumstances and human frailties of the accused.”115 Although excuse-based defences rest on the idea of a morally involuntary conduct, whereas objective mens rea resides in a failure to foresee what a reasonable person would have foreseen, this distinction does not in itself justify the exclusion of the accused’s actual perception of the surrounding circumstances to determine whether his failure to foresee a risk was reasonable in the circumstances.116 What is more, in Hibbert, Lamer CJC quoted the same extract from HLA Hart’s classic work Punishment and Responsibility117 as his minority opinion in Creighton to justify the consideration of personal factors in the application of the objective standard.118

[54] The majority view in Creighton was also attenuated by the need to take into account the evidence relating to the accused’s state of mind to determine whether a reasonable person in the

112 See generally Canada v Craig, 2012 SCC 43, [2012] 2 SCR 489 at para 25 [Craig]; R v Henry, 2005 SCC 76, [2005] 3 SCR 609 at para 44 [Henry]. 113 Craig, supra note 112 at para 27. See also R v Nur, 2015 SCC 15, [2015] 1 SCR 773 at para 59. 114 R v Bernard, [1988] 2 SCR 833 at pp 849-861, Dickson CJC, dissenting [Bernard]. 115 R v Hibbert, [1995] 2 SCR 973 at para 60 [Hibbert]. See also, with respect to provocation, R v Tran, 2010 SCC 58, [2010] 3 SCR 350 at paras 31-35. 116 See Don Stuart, Canadian Criminal Law, 7th ed (Toronto: Carswell, 2014) at pp 292-293, A.B.A., Tab 15, pp 190-191. 117 HLA Hart, Punishment and Responsibility: Essays in the Philosophy of Law (New York: Oxford University Press, 1968) at p 154, A.B.A., Tab 8, p 125. 118 Compare Creighton, supra note 4 at p 26, Lamer CJC, dissenting; Hibbert, supra note 115 at para 58.

Appellant’s Factum 20 Statement of Argument same circumstances would have been aware of the risk, as emphasized in Beatty and Roy.119 The standard remains objective, but the accused’s perception of the facts is relevant in assessing the reasonableness of his conduct. Professor Roach rightly observes that these cases have reduced the gap between how the objective standard is applied to fault and defences:

The divide between the modified reasonable person used for defences and the unmodified reasonable person used to determine fault has, however, been contracted by cases which remind courts to consider all the evidence, including evidence relating to the accused’s subjective state of mind, in determining whether an accused had the fault of negligence.120

This Court could put an end to any inconsistencies by revisiting Creighton and concluding that factors such as age, education, and experience may be taken into account in the assessment of the objective standard for mens rea.

[55] Secondly, the combination of Creighton and Beatty creates uncertainty and confusion, as the case at bar illustrates. On the one hand, the trier of fact must consider all the evidence, including evidence about the accused’s state of mind, but on the other hand, personal attributes cannot be considered. Yet if the fact of having been trained as a doctor of naturopathic medicine and having previously provided numerous IVs are considered as “personal characteristics”, they must also be seen as part of the relevant context for it is impossible to evaluate Ms. Javanmardi’s state of mind without considering these factors. Her perception of the facts is inseparable from her training and experience as a naturopathic doctor. As pointed out by Professor Healy (as he then was), “a claim of mistake as to circumstances is unintelligible except by consideration of the particular perceptions and characteristics of the accused.”121 Morris Manning and Peter Sankoff rightly observe that “where the accused’s traits are relevant to the overall assessment of conduct or awareness of risk, it only makes sense to use these characteristics to provide context for the overall reasonableness determination.”122 The task of distinguishing between the facts pertaining to the accused’s state of mind or context and the personal characteristics of the accused is unnecessarily complex and confusing for trial judges and juries. In R v Bernard, Dickson CJC noted that when a prior decision

119 Beatty, supra note 5 at paras 43, 49; Roy, supra note 98 at paras 39-41. 120 Roach, supra note 97 at pp 217-218, A.B.A., Tab 12, p 159-160. 121 Patrick Healy, “The Creighton Quartet: Enigma Variations in a Lower Key” (1993) 23 CR (4 th) 265 at p 278, A.B.A., Tab 9, p 133. 122 Manning & Sankoff, supra note 80 at pp 250-251, A.B.A., Tab 10, pp 140-141.

Appellant’s Factum 21 Statement of Argument is itself a cause of uncertainty, “following [that] prior decision because of stare decisis would be contrary to the underlying value behind that doctrine, namely, clarity and certainty in the law.”123

[56] In the same vein, the majority approach in Creighton is unrealistic and is thus not always followed by trial courts. Marie-Eve Sylvestre and Manon Lapointe point out that even this Court has had difficulty ignoring these personal characteristics:

Par exemple, comment justifier que le juge Cromwell dans l’arrêt Roy réfère au fait que l’accusé « connaissait bien le chemin Harmon, l’ayant déjà parcouru cinq cent fois en quittant l’autoroute ou en s’y engageant » si l’expérience n’est pas un facteur pertinent dans l’analyse de la norme objective de la personne raisonnable sinon par le fait que cela ait pu laisser une certaine impression sur lui et sur sa conception de la personne raisonnable.124

Professor Don Stuart has also observed that “[t]he current approach appears quite unrealistic and will likely continue to be ignored in trial courts with live witnesses”,125 a criticism shared by Manning and Sankoff.126 Notwithstanding Creighton, training and experience have been considered by trial judges in the assessment of the fault element of penal negligence offences.127 Similarly, the age of the accused, training or experience have also been taken into account with

123 R v Bernard, supra note 114 at p 858, Dickson CJC dissenting. 124 Marie-Eve Sylvestre & Manon Lapointe, “Élément mental de l’infraction : mens rea objective”, in JurisClasseur Québec — Collection droit pénal — Droit pénal général (looseleaf), vol 1, by Marie-Pierre Robert & Simon Roy, ed, fasc 4 at para 19, A.B.A., Tab 16, pp 200-201. 125 Stuart, supra note 116 at p 293, A.B.A., Tab 15, p 191. 126 Manning & Sankoff, supra note 80 at p 250, A.B.A., Tab 10, p 140. 127 See e.g. R v Porto, 2018 ONCA 291 at para 5 (the trial judge considered that police officers, such as the appellant, have “training and experience in high speed driving”); R v Lovett, 2017 ABQB 46 at paras 115, 135 (taking into account the education of the accused as a relevant circumstance on charges of failing to provide the necessaries of life and criminal negligence causing death); R v Laari, 2015 ONCJ 69 at para 63 (taking into account the fact that the accused was a police officer responding to an urgent call); R v Cavanagh, 2013 ONSC 5757 at paras 82, 87 (taking into account the fact that the accused was a police officer who complied with his training at all times); R v Critch, [2012] NJ No 131 at para 42 (Nfld Prov Ct) (QL) (taking into account the experience of the accused in the handling of firearms).

Appellant’s Factum 22 Statement of Argument respect to the objective mens rea for criminal negligence causing death or bodily harm.128 Also, the reasonable person was often defined as an individual exercising the same profession as the accused.129 Even in the judgment appealed from, Gagnon JA asked himself if Ms. Javanmardi’s conduct showed a marked departure from that expected of “un naturopathe raisonnable”130 in the same circumstances. Departing from stare decisis and overruling Creighton would therefore not create uncertainty in case law, but would instead put an end to the one that currently prevails.

[57] “The Court should be particularly careful before reversing a precedent where the effect is to diminish Charter protection” wrote Binnie in R v Henry.131 In this case, overruling Creighton would not diminish any right nor “expand criminal liability”.132 The objective standard should not be set higher or lower depending on the characteristics of the accused. These attributes should simply be relevant to determine whether, given the circumstances, the conduct of the accused and his failure to foresee a risk was reasonable.

128 See e.g. R v Laine, 2015 ONCA 519 at paras 68-69 (taking into account the appellant’s youthfulness, that he “knew the road well” and “had travelled on it many times throughout his life.”); R v Vantroba, 2015 ONSC 1569 at para 69 (taking into account “the nature and extent of [the accused’s] training of his dogs”); R v Harshbarger, 2010 NLTD(G) 152 at para 52 (taking into account that the accused is an experienced hunter); Salame, supra note 104 at para 52 (taking into account that the appellant had manufactured arak in the past and how he learned the process of production in Lebanon); R v L. (J.), 204 CCC (3d) 324, 2006 CanLII 805 at para 20 (Ont CA) (the trial judge should have considered “the appellant youthfulness as a factor in determining whether the conduct of the appellant was so morally blameworthy that it amounted to wanton or reckless disregard for the lives and safety of others”). 129 See e.g. Laurin c R, 2018 QCCA 2029 at para 27 (the trial judge should have asked himself if a “reasonable police officer” would have been aware of the risk); R v Tayfel (M.), 2009 MBCA 124 at paras 87, 98 (accused’s conduct compared to that of a “reasonable pilot”); R v Wood, 2017 ONSC 3239 at paras 289-292 (accused’s conduct compared to that of a “reasonable engineer”); R v Swanney, 2006 BCSC 1766 at para 60 (accused’s conduct compared to that of a “reasonably prudent doctor”). 130 Judgment appealed from, A.R., Tab 2, p 94 at para 176. 131 Craig, supra note 112 at para 44. 132 Bernard, supra note 114 at pp 860-61, Dickson CJC dissenting.

Appellant’s Factum 23 Statement of Argument

[58] In sum, not only has the majority opinion in Creighton been the subject of several academic criticisms,133 it was not followed by this Court with regard to objective elements of defences, and it was attenuated by Beatty134 and Roy135 requirement to consider the accused’s state of mind. The current approach is confusing and unrealistic. This Court should hold that characteristics such as age, experience, and training can be taken into account to assess an accused’s state of mind when determining whether failure to foresee a risk was unreasonable in the context.

(i) The Crown had no right of appeal of the trial judge’s finding that there was no marked departure

[59] The issue of whether there was sufficient evidence to draw the inference of a marked departure from the standard of care that a reasonable person would have observed in the circumstances did not involve a question of law and the Crown had no right of appeal on that issue.

[60] As explained by Cromwell J in Roy, the existence of the modified objective fault element is an inference that can be drawn—or not—by the trier of fact, based on all the circumstances, including the conduct of the accused and his actual state of mind:

[39] Determining whether the required objective fault element has been proved will generally be a matter of drawing inferences from all of the circumstances. As Charron J. put it, the trier of fact must examine all of the evidence, including any evidence about the accused’s actual state of mind (para. 43).

133 Sylvestre & Lapointe, supra note 124 at para 19, A.B.A., Tab 16, pp 200-201; Marie-Eve Sylvestre, “The Redistributive Potential of Section 7 of the Charter: Incorporating Socio- Economic Context in Criminal Law and in the Adjudication of Rights” (2011) 42:3 Ottawa L Rev 389 at pp 393-394, A.B.A., Tab 17, pp 207-208; Stuart, supra note 116 at pp 289-293, A.B.A., Tab 15, pp 187-191; Manning & Sankoff, supra note 80 at pp 249-251, A.B.A., Tab 10, pp 139- 141; Gisèle Côté-Harper, Pierre Rainville & Jean Turgeon, Traité de droit pénal canadien, 4th ed (Cowansville: Yvon Blais, 1998) at pp 588-590, A.B.A., Tab 5, pp 47-49; Anne-Marie Boisvert, “La constitutionnalisation de la mens rea et l’émergence d’une nouvelle théorie de la responsabilité pénale” (1998) 77 Can Bar Rev 126 at pp 145-146, A.B.A., Tab 3, pp 33-34; Healy, supra note 121 at pp 273, 277-278, A.B.A., Tab 9, pp 131-133; Tim Quigley, “Constitutional Fault During the Lamer Years” (2000) 5 Can Crim Law Rev 99 at pp 107-108, A.B.A., Tab 11, pp 150-151. 134 Beatty, supra note 5 at paras 43, 49. 135 Roy, supra note 98 at paras 39-41.

Appellant’s Factum 24 Statement of Argument

[40] Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving.136 [Emphasis added.]

The existence of a marked departure from the standard of care that a reasonable person in the same circumstances would have observed is thus a question of fact, as for any other state of mind.137

[61] Gascon J recently wrote in R v George that “[n]o legal error arises from mere disagreements over factual inferences or the weight of evidence”.138 While “the legal effect of findings of facts or of undisputed facts raises a question of law”139, this is not the case for the inferences that can be drawn from these facts.140

[62] Since the existence of the requisite mens rea is a matter of inference for the trier of fact, courts of appeal generally recognize that the existence of a marked departure raises a question of fact. In R v Adams, the Prince Edward Island Court of Appeal held that “[w]hat constitutes a marked departure is a matter of degree—a question of fact beyond the power of this court to review on an appeal from an acquittal.”141 In R v Robichaud142, the New Brunswick Court of Appeal concluded that, if the trial judge properly formulated the marked departure test, the issue of whether the accused’s conduct met the marked departure requirement was not a question of law alone. The Manitoba Court of Appeal reached the same conclusion in R v Blostein143, as did the Saskatchewan Court of Appeal in R v Hunter.144

136 Ibid at paras 39-40 [emphasis added]. 137 See Rose v R, [1959] SCR 441 at p 443; Lampard v R, [1969] SCR 373 at pp 379-381; Schuldt v R, [1985] 2 SCR 592 at pp 599, 611. 138 R v George, supra note 1. See also R v Kent, [1994] 3 SCR 133 at p 143. 139 R v J.M.H., supra note 62 at para 28. 140 R v Morin, [1992] 3 SCR 286 at 294. 141 R v Adams, 2012 PECA 15 at para 65. 142 R v Robichaud, 2012 NBCA 87 at para 15. 143 R v Blostein (M.), 2014 MBCA 39 at para 22. See also R v Artimowich, 2013 MBCA 62 at para 31. 144 R v Hunter, 2015 SKCA 137 at paras 9-10.

Appellant’s Factum 25 Statement of Argument

[63] In R v Reed145, this Court confirmed in very short reasons a judgment from the British Columbia Court of Appeal setting aside an acquittal and substituting a verdict of guilty on three counts of dangerous driving causing death. However, it should not be interpreted as establishing that the existence of a marked departure raises a question of law. In that case, Cumming JA found not only that the trial judge “misapprehended the legal effect on the uncontroverted facts”, but also that “[h]e misconstrued the onus on the Crown” and “misapplied the test in Hundal”.146

[64] More recently, in R v Bagri147, Frankel JA for the British Columbia Court of Appeal considered that, by submitting that the trial judge erred in finding that the Crown had proven a marked departure, the accused was challenging the reasonableness of the verdict. While the reasonableness of a conviction is a question of law in an appeal by an accused, it is trite law that there is no Crown right of appeal of “unreasonable acquittals.”148

[65] In this case, the trial judge was not satisfied beyond a reasonable doubt, in the light of the evidence, that a reasonable person would have been aware of the risk involved in Ms. Javanmardi’s conduct, nor that this conduct constituted a marked departure.149 Moreover, she concluded that the intravenous was administered according to the rules of practice and that Ms. Javanmardi had taken the necessary precautions.150 In substituting its conclusion that the evidence demonstrated a marked departure, the Court of Appeal erred in law. To paraphrase Gascon J in R v George, the Court of Appeal “translated its strong opposition to the trial judge’s factual inference (severity) into supposed legal errors (character).”151

(ii) There was no marked departure

[66] In the alternative, if this Court concludes that the issue raised a question of law, the appellant submits that the trial judge’s findings of fact were not sufficient to conclude, in law, to the existence of a marked departure from the standard of care that a reasonable person would have observed.

145 R v Reed, [1998] 1 SCR 753. 146 R v Reed (1997), 124 CCC (3d) 258, 86 BCAC 111 at para 14. 147 R v Bagri, 2016 BCCA 272 at paras 35-38, leave to appeal to SCC refused, 37199 (December 1, 2016). 148 R v Biniaris, 2000 SCC 15, [2000] 1 SCR 381 at para 33. 149 Trial judge’s decision, A.R., Tab 1, p 48 at paras 438-440. 150 Trial judge’s decision, A.R., Tab 1, p 49 at paras 445, 449. 151 George, supra note 1 at para 17.

Appellant’s Factum 26 Statement of Argument

[67] As explained by McLachlin J for the majority in Creighton, “the test for mens rea of unlawful act manslaughter in Canada … is (in addition to the mens rea of the underlying offence) objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act.”152 She added that “the underlying offence must be constitutionally sound”153, i.e. it cannot be an absolute liability offence and must minimally require a marked departure. To the extent that, in this case, the underlying offence is a strict liability offence created by a provincial statute, the Court of Appeal followed the trend in trial courts and in scholarly opinions154 and held that the underlying offence should be read, in the context of the unlawful act manslaughter charge, as requiring a marked departure.155

[68] In Beatty, Charron J emphasized the importance of distinguishing the marked departure required for penal negligence offences from the simple departure from the standard of care required for civil negligence:

If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy. Such an approach risks violating the principle of fundamental justice that the morally innocent not be deprived of liberty.

… In a criminal setting, the driver’s mental state does matter because the punishment of an innocent person is contrary to fundamental principles of criminal justice. The degree of negligence is the determinative question because criminal fault must be based on conduct that merits punishment.156 [Emphasis added.]

The principle of fundamental justice that the morally innocent should not be punished requires, as a constitutional minimum, a higher degree of fault for criminal offences. “It is only when there is

152 Creighton, supra note 4 at pp 44-45, McLachlin J. 153 Ibid at 59, McLachlin J. See also DeSousa, supra note 54 at pp 957-958. 154 See Isabel Grant & Christine Boyle, “Equality, Harm and Vulnerability: Homicide and Sexual Assault Post-Creighton” (1993) 23 CR (4th) 252 at pp 254-256, A.B.A., Tab 6, pp 53-54; Grant, Chunn & Boyle, The Law of Homicide, supra note 77, ch 4 at pp 14-15, A.B.A., Tab 7, pp 106- 107; Larry C Wilson, “Too Many Manslaughters” (2007) 52 Crim LQ 433 at pp 460-62, A.B.A., Tab 21, pp 287-289; Larry C Wilson, “Beatty, J.F., and the Law of Manslaughter” (2010) 47:3 Alta L Rev 651 at pp 663-664, A.B.A., Tab 20, pp 249-250; Manning & Sankoff, supra note 80 at p 968, A.B.A., Tab 10, p 146; Roach, supra note 97 at pp 435-436, A.B.A., Tab 12, p 161-162. See also R v Curragh Inc. (1993), 125 NSR (2d) 185 (NS Prov Ct), A.B.A., Tab 1, p 1; R c Fournier, 2016 QCCS 5456 at paras 70, 80; R c Fournier, 2018 QCCQ 1071 at paras 112-113; R v L.M., 2018 NWTTC 6 at paras 48-49. 155 Judgment appealed from, A.R., Tab 2, pp 62-64 at paras 45-49, 54. 156 Beatty, supra note 5 at paras 34-35.

Appellant’s Factum 27 Statement of Argument a ‘marked departure’ that the conduct demonstrates sufficient blameworthiness to support a finding of penal liability” wrote Charron J for the majority in Beatty.157

[69] According to the approach developed in Beatty and Roy, the test for the mens rea of penal negligence offences is twofold. First, would a reasonable person in the same circumstances have foreseen the risk involved in the accused’s conduct? Second, was “the accused’s failure to foresee the risk and take steps to avoid it, if possible, … a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances”?158

[70] In this case, not only was there no objective foreseeability of bodily harm for the reasons mentioned above,159 but there was no marked departure from the standard of care that a reasonable person in the same circumstances would have observed.

[71] The following circumstances can be drawn from the factual findings of the trial judge, including her finding that Ms. Javanmardi was credible. Ms. Javanmardi knew she was not allowed to perform medical acts under Quebec law.160 Nevertheless, she was competent to administer nutrients intravenously and took the necessary precautions.161 Between 1992 and June 2008, she administered intravenous injections to approximately ten patients a week.162 She purchased her nutrients from Ontario pharmacists who complied with the highest standards, and the measures of asepsis she put in place were sufficient.163 But for the presence of the bacteria and endotoxins, invisible to the naked eye, the solution injected to Mr. Matern, including the L-Carnitine, was indicated to his heart condition and safe.164 Before the injection, Ms. Javanmardi had drawn into the single-dose vial containing the L-Carnitine on two occasions that same day.165 Throughout her career, no patient had ever been infected during an IV.166 Bacteria were plausibly introduced in the

157 Ibid at para 33. 158 Roy, supra note 98 at para 36. 159 See question A, above at paras [33]-[41]. 160 Trial judge’s decision, A.R., Tab 1, p 39 at para 349. 161 Trial judge’s decision, A.R., Tab 1, p 49 at para 449. 162 Trial judge’s decision, A.R., Tab 1, pp 25, 39, 48-49 at paras 236, 347, 437, 449. 163 Trial judge’s decision, A.R., Tab 1, pp 45-46 at paras 414-417, 422-423. 164 Trial judge’s decision, A.R., Tab 1, pp 20, 31, 44-45, 49 at paras 183, 297-298, 402, 404, 410, 444. 165 Trial judge’s decision, A.R., Tab 1, p 41 at para 374. 166 Trial judge’s decision, A.R., Tab 1, p 45 at para 409.

Appellant’s Factum 28 Statement of Argument vial following the second injection.167 From the moment of the injection, the death of Mr. Matern was inevitable given the number of endotoxins.168

[72] In concluding that there was a marked departure, the Court of Appeal emphasized that Ms. Javanmardi had drawn L-Carnitine out of the same single-dose vial on three occasions the same day for three different patients.169 However, the evidence showed that this was a practice that was used in public hospitals. As explained by Dr. Alan-Robert Gaby, “uni-dose means one dose, but many practitioners will administer a few treatments out of the same bottle as long as it’s in a short window of time”, i.e. “four hours or less”.170 He himself used single-dose vials more than once to reduce costs and saw no danger with that practice.171 Thus, in doing so, Ms. Javanmardi did not depart markedly from the standard of care of a reasonable person in the same circumstances.

[73] In any event, the trial judge concluded that the bacteria were plausibly introduced in the vial following the second injection.172 Indeed, the first two patients injected shortly before Mr. Matern showed no symptoms of infection.173 It was therefore logically at the time of the third puncture that the bacteria were introduced in the vial containing L-Carnitine, that is to say when Ms. Javanmardi prepared the solution injected to Mr. Matern. Thus, even if the vial had not been used previously, the contamination would have occurred. Since the trial judge also concluded that Ms. Javanmardi took the necessary precautions and that the measures of asepsis she put in place were sufficient,174 the contamination was the result of an unfortunate accident. Such infections also happen in hospitals.175

167 Trial judge’s decision, A.R., Tab 1, p 46 at para 416. 168 Trial judge’s decision, A.R., Tab 1, p 47 at paras 428-429. 169 Judgment appealed from, A.R., Tab 2, p 82 para 120. 170 Examination of Dr. Alan Robert Gaby, A.F. C.A., vol 16, pp 6471, 6473. See also Examination of Dr. Ruben Becker, A.F. C.A., vol 18, pp 7557-7559; Examination of Denis Brouillette, A.F. C.A., vol 11, pp 4519-4520. 171 Examination of Dr. Alan Robert Gaby, A.F. C.A., vol 16, pp 6472. 172 Trial judge’s decision, A.R., Tab 1, p 46 at para 416. 173 Trial judge’s decision, A.R., Tab 1, pp 29, 46 at paras 276, 416. 174 Trial judge’s decision, A.R., Tab 1, pp 46, 49 at paras 422-423, 449. 175 Testimony of Nathalie Gagné, A.F. C.A., vol 12, pp 4467-4468, 4470, 4787-4790.

Appellant’s Factum 29 Statement of Argument

[74] The Court of Appeal also emphasized other aspects of Ms. Javanmardi’s conduct to conclude that there was a marked departure.176 However, not all of the actions that were taken by Ms. Javanmardi are relevant in the analysis on the unlawful act manslaughter’s charge, but only those that relate to the predicate offence, namely to have contravened ss. 31 and 43 of the Medical Act.177 Rather, the issue is whether Ms. Javanmardi, by engaging in an activity reserved to physicians, departed markedly from the standard of care expected of a reasonable person in the same circumstances. In the case at bar, although she did provide an IV contrary to the Medical Act, her conduct in so doing did not show a marked departure from the conduct that a reasonable person would have observed.

[75] Similarly, Ms. Javanmardi’s conduct after the injection is of little use in the analysis, as the trial judge concluded that, given the number of endotoxins, Mr. Matern’s death was inevitable.178

[76] There is obviously no evidence of any deliberate intention of Ms. Javanmardi to create a danger for her patients in providing IV therapy. She believed that the intervention she had been practising for years was safe. However, was the trial judge bound in law to infer from Ms. Javanmardi’s conduct a marked departure from the standard of care that a reasonable person would have observed in the same circumstances? The answer is no. The trial judge found, as a matter of fact, that Ms. Javanmardi had taken the necessary precautions to administer the intravenous injection.179 She also concluded that the supplier of nutrients met the highest quality standards, and that the aseptic measures put in place for the injections were sufficient.180

[77] In R v Davis,181 the Saskatchewan Court of Appeal held that the intravenous injection of a mixture of water and pyribenzamine pills into the arm of the deceased did not show a wanton or reckless disregard for her life, and quashed a manslaughter conviction. A fortiori, the intravenous

176 Judgment appealed from, A.R., Tab 2, p 82 at para 120. 177 Medical Act, supra note 66, ss 31, 43. On the importance of identifying the relevant predicate offence in an unlawful act manslaughter charge, see R v K.R.T., 2005 MBCA 78 at paras 12-13, 19. 178 Trial judge’s decision, A.R., Tab 1, p 47 at paras 428-429. 179 Trial judge’s decision, A.R., Tab 1, p 49 at para 449. 180 Trial judge’s decision, A.R., Tab 1, pp 45-46 at paras 414-417, 422-423. 181 R. v. Davis (1977), 37 CCC (2d) 114 (Sask CA).

Appellant’s Factum 30 Statement of Argument injection of nutrients suitable to the condition of a patient by a doctor of naturopathic medicine should not amount to penal negligence nor criminal negligence.

[78] Based on the totality of the evidence, there was no reason for the Court of Appeal to interfere with the trial judge’s conclusion that there was no marked departure and that Ms. Javanmardi did not have the requisite mens rea for an unlawful act manslaughter conviction.

D. Did the Court of Appeal err in law in setting aside the acquittals and entering a verdict of guilty on the manslaughter charge under s. 686(4)(b)(ii) of the Criminal Code?

(i) There was no reasonable degree of certainty that the alleged errors were material to the verdicts

[79] For an acquittal to be overturned, not only must the appellate court be satisfied that there was an error in law, but it must also be shown that without that error, the verdict would have been different. There must be a “reasonable degree of certainty” that the error was material to the verdict.182 In this case, the threshold for materiality was not met with a reasonable degree of certainty and therefore, the Court of Appeal exceeded its jurisdiction when it overturned the acquittals.

[80] Assuming that the trial judge found that the mens rea of unlawful act manslaughter requires objective foresight of the risk of death, and not of bodily harm, then that error of law had no bearing on the acquittal. As explained above, unlawful act manslaughter also requires that the predicate unlawful act be objectively dangerous, and the trial judge concluded it was not the case here.183 Moreover, to the extent that the underlying offence was a strict liability offence created by a provincial statute, it needed to be interpreted, in the context of the unlawful act manslaughter charge, as requiring a marked departure from the standard of care expected of a reasonable person in the same circumstances.184 Yet, as explained above, the trial judge concluded that Ms. Javanmardi’s conduct did not amount to a marked departure.185 Any error as to the requirement of objective foreseeability of the risk of bodily harm was therefore of no consequence.

182 R v George, supra note 1 at para 27. 183 See paras [27]-[41], above, for further analysis of this requirement and why the unlawful act was not objectively dangerous in this case. 184 For further analysis of this requirement, see note 154 and the accompanying text. 185 See paras [59]-[78], above, for further analysis of this issue.

Appellant’s Factum 31 Statement of Argument

[81] With respect to the charge of criminal negligence causing death, the fact that the trial judge asked herself whether Ms. Javanmardi’s conduct displayed a marked departure rather than a marked and substantial departure from the standard of care expected of a reasonable person was of no consequence. She concluded that there was no marked departure. Logically, she would not have found that the same conduct shown a marked and substantial departure. In R v J.F., Fish J commented on the illogicality of the accused being not guilty of failing to provide necessaries, which requires a marked departure, but found guilty of criminal negligence causing death, which requires a marked and substantial departure.186

[82] With regards the alleged error of personalizing the objective standard by taking into account Ms. Javanmardi’s professional training, such an error would not have had an impact on the verdicts of acquittal. If the trial judge did in fact personalize the objective standard, she thus logically would have held Ms. Javanmardi to a higher standard of care than that of a reasonable person. As explained by McLachlin J in Creighton, taking into account the extensive experience of an accused in an activity or his training would have the effect of holding him to a higher standard, not a lower one:

The Chief Justice, while in principle advocating a uniform standard of care for all, in the result seems to contemplate a standard of care which varies with the background and predisposition of each accused. Thus an inexperienced, uneducated, young person, like the accused in R. v. Naglik, [1993] 3 S.C.R. 122, could be acquitted, even though she does not meet the standard of the reasonable person (reasons of the Lamer C.J., at pp. 145–146). On the other hand, a person with special experience, like Mr. Creighton in this case, or the appellant police officer in R. v. Gosset, supra, will be held to a higher standard than the ordinary reasonable person.187

Even if the trial judge erred in law in taking into account Ms. Javanmardi’s training, she nonetheless found that a reasonable person would not have been aware of the risk involved in her conduct and acquitted her. It follows then that if Ms. Javanmardi met a higher standard associated with her specialized knowledge, logically she would have met the lower standard.

[83] In short, even if this Court determines that the trial judge committed any of these three errors of law, it cannot be said that the threshold of materiality was met in the circumstances. To paraphrase R v George, “there was no reasonable degree of certainty [that these alleged errors]

186 R v J.F., supra note 108 at para 11. 187 Creighton, supra note 4 at pp 60-61.

Appellant’s Factum 32 Statement of Argument were material to the verdict [and,] even if these considerations had amounted to legal errors, they would not have justified appellate intervention.”188

(ii) In the alternative, a new trial should have been ordered on the manslaughter charge

[84] When an appeal from an acquittal rendered by a judge alone is granted, an appellate court has the discretion under s. 686(4)(b)(ii) Cr.C. to enter a verdict of guilty rather than order a new trial. An acquittal can only be substituted with a conviction if the trial judge made all the necessary findings of fact to support the conviction beyond a reasonable doubt, as reiterated in R v Katigbak189:

Since this was an appeal from an acquittal, the jurisdiction of the Court of Appeal was limited to “question[s] of law alone” (s. 676(1) (a) of the Criminal Code). Consequently, the Court of Appeal could not make its own findings of fact. Additionally, s. 686(4)(b)(ii) of the Criminal Code establishes that appellate courts may only substitute an acquittal with a conviction if the trial judge’s findings of fact, viewed in light of the applicable law, supported a conviction beyond a reasonable doubt. If the trial judge’s findings of fact do not support a conviction beyond a reasonable doubt, the proper remedy is a new trial. [Emphasis added.]

Moreover, “[t]his is a power that should be used only in the clearest of cases.”190

[85] In the case at bar, the Court of Appeal did not rely on the trial judge’s findings of fact to enter a conviction, but made some of its own findings, thus exceeding its jurisdiction.

[86] First, when it concluded that the underlying unlawful act was objectively dangerous, a question of mixed fact and law,191 the Court of Appeal relied on the fact that Ms. Javanmardi “was not able to recognize the symptoms of foreseeable complications associated with IV or to react appropriately when they occur.”192 Yet the trial judge made no findings of fact to that effect and it was a hotly debated issue. In fact, the trial judge found that “Ms. Javanmardi has the skills to administer IV at every step.”193

188 George, supra note 1 at para 28. 189 R v Katigbak, 2011 SCC 48, [2011] 3 SCR 326 at para 50 [Katigbak]. See also R v McRae, 2013 SCC 68, [2013] 3 SCR 931 at para 39 [McRae]; R v Cassidy, [1989] 2 SCR 345 at pp 354- 355. 190 McRae, supra note 189 at para 39. 191 See paras [28]-[32], above, for further analysis of this issue. 192 Judgment appealed from, A.R., Tab 2, p 76 at para 92 [our translation]. 193 Trial judge’s decision, A.R., Tab 1, p 49 at para 449 [our translation].

Appellant’s Factum 33 Statement of Argument

[87] Second, the Court of Appeal also stated that “IV pose inherent risk for human beings, including infection caused by the unintentional introduction of microbes and bacteria into the body.”194 However, the trial judge made no such finding of fact in her judgment. Rather, she found that a reasonable person would not have foreseen a risk of harm, and that it was plausible that the IV did not present a danger or a risk of harm.195

[88] Third, Gagnon JA also relied on the fact that Ms. Javanmardi recommended to Mr. Matern that he ingests some sugar, honey, or orange juice to conclude that there was a marked departure from the standard of care expected of a reasonable person in the same circumstances.196 In doing so, he failed to consider other relevant findings of fact made by the trial judge. For instance, she found that Ms. Javanmardi was a credible witness197 who testified that she had taken Mr. Matern’s vital signs after the IV, that his vital signs were normal, and that Mr. Matern told her he did not want to go to the hospital.198 The Court of Appeal could not simply rely, out of context, on Ms. Javanmardi’s suggestion that Mr. Matern consume sugar without considering these findings of fact as to why she believed that Mr. Matern could have been having a hypoglycaemic reaction.

[89] Curiously, the Court of Appeal found that a new trial should be ordered on the count of criminal negligence causing death, finding that whether there was a marked and substantial departure from the standard of care required “a thorough examination of the evidence as a whole according to the appropriate legal standard.”199 With respect, the same was true of the manslaughter charge and the issue of whether there was a marked departure. To answer this question, it was necessary to review the evidence as a whole and, as in Katigbak, “[t]he accused is entitled to have these facts determined by a trial judge.”200

194 Judgment appealed from, A.R., Tab 2, p 76 at para 93. 195 Trial judge’s decision, A.R., Tab 1, p 49 at paras 445, 448. 196 Judgment appealed from, A.R., Tab 2, p 82 at para 120. 197 Trial judge’s decision, A.R., Tab 1, p 39 at paras 343-345. 198 Trial judge’s decision, A.R., Tab 1, pp 28-29, 47 at paras 259, 272-273, 275, 426. 199 Judgment appealed from, A.R., Tab 2, p 83 at para 125. 200 Katigbak, supra note 189 at para 52.

Appellant’s Factum 34 Statement of Argument

[90] Although the trial judge found that, with regard to factual causation, Mr. Matern’s death was attributable to an endotoxic shock caused by the presence of Pantoea in the L-Carnitine injected, she nevertheless concluded that the Crown did not establish beyond a reasonable doubt that one of the alleged unlawful acts had caused the death.201 In appeal, the Crown argued that the trial judge found that factual causation was established, but not legal causation, and that the Court of Appeal could review that legal conclusion. The Court of Appeal rejected this distinction and concluded that the trial judge had simply found that the Crown had not discharged its burden of establishing Ms. Javanmardi’s guilt beyond a reasonable doubt.202 With respect, the appellant is of the view that causation was indeed not established in this case.

[91] Section 222(5)(a) Cr.C. provides that where a person causes the death of a human being “by means of an unlawful act”, that person commits culpable homicide. As explained by Morris Manning and Peter Sankoff, this requirement that the death be caused “by means of an unlawful act” adds an extra layer to the causation analysis:

In most instances, homicide cases will be concerned with paragraph (a) and killings caused by means of an unlawful act. The term “by means of” inserts an additional level of causal analysis into the equation. As we have seen, for a person to commit homicide, their actions must cause the death of a human being. For example, someone who drives their car and hits a person, killing them, will clearly satisfy the de minimis level of causation necessary to have the death classified as a homicide. But for the killing to be considered culpable, the Code also requires the death be caused by means of an unlawful act, and not merely during an unlawful act. Thus merely driving without a valid license and causing someone’s death while in the act of driving would not, without more, be causing someone’s death by means of an unlawful act. The unlawful act itself must be a significant contributing cause of the death for it to constitute a culpable homicide.203 [Emphasis added.]

201 Trial judge’s decision, A.R., Tab 1, pp 43, 50 at paras 396, 451. 202 Judgment appealed from, A.R., Tab 2, p 88 at para 150. 203 Manning & Sankoff, supra note 80 at para 19.17, A.B.A., Tab 10, p 142. See also Eric Colvin & Sanjeev Anand, Principles of Criminal Law, 3rd ed (Toronto: Carswell, 2007) at p 153, A.B.A., Tab 4, p 42.

Appellant’s Factum 35 Statement of Argument

In the same way, merely engaging in an activity reserved to physicians without holding a permit and causing someone’s death while performing that activity should not, without more, be causing someone’s death by means of an unlawful act. To put it differently, there must be a causal link between the illegality and the consequence. Providing an IV without being a physician must have been a significant contributing cause of the death for it to constitute unlawful act manslaughter.

[92] Professors Simester and Sullivan have coined the term “causal salience” when referring to the requirement of a link between what makes conduct culpable and the result: “Salience is frequently in point in cases of manslaughter, whether by gross negligence or by an unlawful and dangerous act. In each case, it must be the conduct constituting the gross negligence or the unlawful and dangerous act that caused death.”204

[93] This requirement that the death be caused by means of the unlawful act has long been recognized by Canadian courts. In R v Dolynchuk,205 the Manitoba Court of Appeal held that the trial judge had erred in instructing the jury that if the accused had not blown his horn as required by a provincial statute before overtaking a vehicle, he committed an unlawful act and should be convicted of unlawful act manslaughter. It was up to the jury to determine whether this unlawful act was the cause of the fatal accident. The death would not have occurred but for the overtaking by the accused, but it was necessary to examine whether there was a connection between the illegality (overtaking without blowing his horn) and the death. Similarly, in R v Wilmot, another manslaughter case arising from the driving of a motor vehicle, Ford JA held that “[i]t is not enough that in the course of, or while doing, an unlawful act a person kills another.”206 When the underlying unlawful act is impaired driving, there must be a sufficient link between the impairment and the death.207 A similar reasoning was also followed by the Court of Appeal of Quebec in R c Vaillancourt,208 which concluded that, in view of the use of the words “by means of” in s. 222(5)(a) Cr.C., unlawful act manslaughter requires a causal link between the death and the underlying unlawful act. Thus, simply pointing a loaded firearm at another person, contrary to

204 AP Simester et al, Simester and Sullivan’s Criminal Law: Theory and Doctrine, 4th ed (Oxford: Hart Publishing, 2010) at p 87, A.B.A., Tab 13, p 166. 205 R v Dolynchuk, [1934] 2 DLR 96, 61 CCC 275 (Man CA). 206 R v Wilmot, [1940] 3 DLR 358, 1940 CarswellAlta 21 at para 73 (Alta CA). 207 Ibid at para 76. 208 R c Vaillancourt (1995), 105 CCC (3d) 552, [1995] JQ No 3022 (QL) at paras 28-29 (Qc CA).

Appellant’s Factum 36 Statement of Argument s. 87 Cr.C., cannot result in a manslaughter conviction where that unlawful act was not the source of the risk that caused the death of the victim.

[94] This rule has also been echoed in a number of impaired driving causing bodily harm or death cases.209

[95] In conclusion, there must be a link between what makes the conduct—be it impaired driving, pointing a firearm, driving without a valid license—criminal and the result. It is not sufficient to establish that a person died while the accused was committing an unlawful act and that but for the actions of the accused the death would not have occurred. What must be established beyond a reasonable doubt by the Crown is that the proscribed result would not have resulted but for the commission of the unlawful act by the accused (factual causation) and that this unlawful act was a significant contributing cause of the result (legal causation).210

[96] In this case, the trial judge found that the cause of the death was an endotoxic shock, which was attributable to the presence of Pantoea in the L-Carnitine injected by Ms. Javanmardi into Mr. Matern.211 She also held that the IV was administered according to the rules of practice, and that Ms. Javanmardi took the usual precaution by purchasing the L-Carnitine from a pharmacy with high quality standards.212 According to the trial judge’s findings of fact, Ms. Javanmardi was competent to administer nutrients intravenously and took the necessary precautions, although she was not authorized by Quebec law to do so.213 In light of these findings of fact, she concluded that the Crown had not established beyond a reasonable doubt that the alleged unlawful acts caused the death of Mr. Matern.214

[97] This conclusion can easily be explained: even though Ms. Javanmardi breached the Medical Act215 by providing an intravenous injection without being a physician, the Crown did not

209 See e.g. R v Fisher (1992), 13 CR (4th) 222 (BC CA), 1992 CarswellBC 462 at para 9; R c Laprise (1996), 113 CCC (3d) 87, 1996 CarswellQue 1028 at paras 15-17 (Qc CA); R v Boomer, 2001 BCCA 220 at para 25 (BC CA); Méthot c R, 2005 QCCA 1211 at para 25. 210 See generally R v Maybin, 2012 SCC 24, [2012] SCR 30; R v Nette, 2001 SCC 78, [2001] 3 SCR 488. 211 Trial judge’s decision, A.R., Tab 1, p 43 at paras 395-396. 212 Trial judge’s decision, A.R., Tab 1, p 49 at para 445. 213 Trial judge’s decision, A.R., Tab 1, p 49 at para 449. 214 Trial judge’s decision, A.R., Tab 1, p 50 at para 451. 215 Medical Act, supra note 66, ss 31, 43, 45.

Appellant’s Factum 37 Statement of Argument establish beyond a reasonable doubt that this unlawful act, namely not being a physician while providing the IV, was a significant contributing cause of the death. As in the case of impaired driving causing death, it is not enough to establish a link between the IV and the death: it must be shown that not being a physician—just as the intoxication of the accused—contributed to the result.

[98] Based upon the trial judge’s findings of fact regarding the competence of Ms. Javanmardi and the precautions she took, it was open to her to conclude that the Crown had not established beyond a reasonable doubt that the unlawful act—the violation of the Medical Act216—was a significant contributing cause of Mr. Matern’s death, even if the medical cause of death was an endotoxic shock due to the presence of bacteria in the nutrients injected.

F. Do ss. 234 and 236 of the Criminal Code infringe ss. 6 or 15 of the Charter, and, if so, is the infringement justified under s. 1?

[99] As mentioned in Appellant’s notice of constitutional question,217 the offences should, if necessary, be declared inoperative, or at least, inoperative with respect to naturopaths as they create a potential distinction based on the province of residence for competent naturopathic practitioners.218 They must be interpreted so as to exclude from their scope any acts by doctors of naturopathic medicine which are lawful in another part of Canada.

[100] Speed limits vary from province to province and the existence of a serious offence like manslaughter cannot depend on such variations in location; the mere fact of a breach of law does not suffice for manslaughter. By analogy, the driver of a vehicle involved in an accident at a speed which exceeds the limit does not, by itself, expose him to a manslaughter charge in the way intoxication at the steering wheel would.

[101] It is of course true that criminal legislation may apply only to a province or territory.219 However such differences must be explicit in the legislation; there is no such provision here. The

216 Medical Act, supra note 66, ss 31, 43, 45. 217 Notice of Constitutional Challenge, 5 mai 2011, A.F. C.A., vol 2, pp 371-375. 218 Brossard (Town) v Quebec (Commission des droits de la personne), [1988] 2 SCR 279 [Brossard]; Black v Law Society of Alberta, [1989] 1 SCR 591 at p 628 [Black]; R v Turpin, [1989] 1 SCR 1296 at pp 1331-1333; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203 [Corbiere]. 219 Criminal Code, s 8(1); Haig v. Canada; Haig v Canada (Chief Electoral Officer), [1993] 2 SCR 995 at p 1042-1046; R v S (S), [1990] 2 SCR 254; R v S (G), [1990] 2 SCR 294.

Appellant’s Factum 38 Statement of Argument rule that such distinctions must be explicit is part of the normal rules of statutory interpretation and this clearly applies here.

[102] Even then, the essence of the offence cannot depend on the province. Theft, murder or fraud cannot be interpreted differently in different parts of the country as this would create distinction based on residence.220 It cannot be that the same set of facts would give rise to a manslaughter conviction in one part of the country and not in another.

[103] If one applied the Criminal Code so as to create a distinction based on provincial statutes, unlawful act manslaughter would be constitutionally inoperative at least for those matters which are lawful in one part of the country and unlawful in another.

[104] The appellant produced evidence in first instance that intravenous administration of nutrients by naturopaths is lawful in most provinces and it has been shown that Ms. Javanmardi had all the qualifications to be a naturopath in these provinces. Therefore, there could be no allegation of unlawful act manslaughter in other parts of Canada for the same action.

[105] The Court of Appeal analyzed the situation in other provinces and found that, at the time of the alleged offence, the act was not specifically lawful anywhere in Canada.221 With respect, Gagnon JA misunderstood the specificity of the different provincial laws and regulations. In 2008, laws and regulations explicitly allowing naturopaths to provide IVs had been enacted in several provinces but were not yet in force. Ms. Shawn O’Reilly, Executive Director and Director of Government Relations for the Canadian Association of Naturopathic Doctors, testified as an expert witness about the practice of naturopathy in different provinces before and after the alleged offences. She explained that even before the entry into force of the Naturopathic Physicians Regulation222 in British Columbia on April 9th, 2009, naturopaths registered under the Naturopathic Physicians Regulation223 were providing IV therapy in that province. In Alberta, even though the Naturopaths Profession Regulation224 came into force on August 1st, 2012, it was Ms. O’Reilly’s expert opinion that naturopaths were administering intravenous treatments in 2008.

220 Brossard, supra note 218; Black, supra note 218; Corbiere, supra note 218. 221 Judgment appealed from, A.R., Tab 2, p 92 at para 165. 222 Naturopathic Physicians Regulation, BC Reg 156/2009, s 5(1)(d)(iv); Exhibit D-35, A.F. C.A., vol 5, pp 1718-1728. 223 Naturopathic Physicians Regulation, BC Reg 449/99. 224 Naturopaths Profession Regulation, Alta Reg 126/2012, s 14.

Appellant’s Factum 39 Statement of Argument

With regard to Saskatchewan and Manitoba, she explained that naturopaths could provide intravenous treatments, although this activity is not explicitly mentioned in the statutes regulating naturopathy in these provinces.225 In Ontario, the Naturopathy Act226 was enacted in 2007, but came into force on 1 July 2015. Ms. O’Reilly testified that, even before that date, IV therapy was allowed for naturopathic doctors under the Drugless Practitioners Act.227 In her opinion, although there was no regulation in New Brunswick and Nova Scotia at the time, naturopaths were providing IVs.228 The absence of regulations does not mean there was a prohibition.229

[106] In any event, the inexistence of regulations at the time of the infraction does not invalidate the fact that, in order for provinces to adopt such regulations, the intravenous administration of medication could not have been considered a criminal act. As such, it does not matter when the regulations came into effect. The mere fact that a province can legally allow and regulate a particular activity indicates that this activity is not criminal; if the provincial bodies could create criminal offences, the provinces would effectively be in a position to legislate significant criminal law.

[107] Moreover, the enactment of statutes or regulations in other provinces that were not yet in force at the time Ms. Javanmardi provided the IV indicates that, even at that time, these provincial legislatures did not consider that practice by a competent naturopath to be objectively dangerous.

[108] In the matter at hand, it is not necessary to declare the impugned provisions inoperative, because they can be interpreted so as to avoid discrimination. Acts lawful in parts of Canada should normally not be held “objectively dangerous.” However, should such an interpretation prove impossible for any reason, unlawful act manslaughter should be declared inoperative.

[109] It is to be noted that no evidence was provided by Respondents to justify the application of section 1 of the Charter.

225 See also The Naturopathy Act, RSS 1978, c N-4; The Naturopathic Act, RSM 1987, c N80, CCSM c N80. 226 Naturopathy Act, SO 2007, c 10, Sch P, s 4. 227 Drugless Practitioners Act, RSO 1990, c D.18. 228 See also Naturopathic Doctors Act, SNS 2008, c 5 (in force on 2 July 2008). 229 Examination of Shawn O’Reilly, A.F. C.A., vol 18, pp 7311-7323. 40 Appellant’s Factum Submissions Respecting Costs / Orders Sought

PART IV: SUBMISSIONS RESPECTING COSTS

[110] The appellant is not seeking costs.

PART V: ORDERS SOUGHT

[111] The appellant respectfully requests that the appeal be allowed, the judgment of the Court of Appeal set aside, and the acquittals entered at trial restored. In the alternative, if this Court concludes that the trial judge erred in law and that there was a reasonable degree of certainty that the error was material to the verdicts, the conviction entered by the Court of Appeal on the charge of manslaughter should be quashed and a new trial ordered.

[112] With respect to the constitutional issues, the appellant seeks an order declaring that ss. 234 and 236 Cr.C. violate ss. 6, 7 and 15 of the Charter and are of no force or effect.

PART VI: IMPACT OF THE SEALING ORDERS AND PUBLICATION BAN

[113] The sealing orders and the publication ban issued in first instance to protect the privacy of the appellant’s other patients as well as personal information contained in autopsy reports prepared in other cases by a defence expert should not have any impact on the Court’s reason in this appeal.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Dated at Montreal, this 28th day of February, 2019.

Isabel J. Schurman, Ad. E. Francis Villeneuve Ménard Julius Grey, Ad. E.

Counsel for the Appellant

41 Appellant’s Factum Table of Authorities

PART VII: TABLE OF AUTHORITIES

Cases

Paragraphs

Black v Law Society of Alberta, [1989] 1 SCR 591 ...... 99, 102

Brossard (Town) v Quebec (Commission des droits de la personne), [1988] 2 SCR 279………… ...... 99, 102

Canada (Director of Investigation and Research) v Southam Inc., [1997] 1 SCR 748 ...... 28

Canada v Craig, 2012 SCC 43, [2012] 2 SCR 489 ...... 52, 57

Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203 ...... 99, 102

DPP v Newbury, [1976] 2 All ER 365 ...... 34

Haig v Canada; Haig v Canada (Chief Electoral Officer), [1993] 2 SCR 995 ...... 101

Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235 ...... 28

Lampard v R, [1969] SCR 373 ...... 60

Laurin c R, 2018 QCCA 2029 ...... 56

Ledcor Construction Ltd. v Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 SCR 23 ...... 28

Méthot c R, 2005 QCCA 1211 ...... 94

R v A.D.H., 2013 SCC 28, [2013] 2 SCR 269 ...... 50

R v Adams, 2012 PECA 15 ...... 62

R v Adkins (1987), 39 CCC (3d) 346 (BC CA) ...... 29, 34

R v Anderson, [1990] 1 SCR 265 ...... 50

R v Artimowich, 2013 MBCA 62 ...... 62

R v Bagri, 2016 BCCA 272 ...... 64

R v Beatty, 2008 SCC 5, [2008] 1 SCR 49 ...... 3, 44, 46, 54, 58, 68

R v Bernard, [1988] 2 SCR 833 ...... 52, 55, 57 42 Appellant’s Factum Table of Authorities

R v Biniaris, 2000 SCC 15, [2000] 1 SCR 38 ...... 64

R v Blostein (M.), 2014 MBCA 39 ...... 62

R v Boomer, 2001 BCCA 220 ...... 94

R v Bristow, [2013] EWCA Crim 1540 ...... 28

R v Carey, [2006] EWCA Crim 17 ...... 34

R v Cassidy, [1989] 2 SCR 345 ...... 84

R v Cavanagh, 2013 ONSC 5757 ...... 56

R v Church, [1965] 2 All ER 72 (Ct CA) ...... 34

R v Cole (1981), 64 CCC (2d) 119 (Ont CA) ...... 29

R v Creighton, [1993] 3 SCR 3 ...... 3, 27-28, 33, 35, 39, 43, 50, 53, 67, 82

R v Critch, [2012] NJ No 131 (Nfld Prov Ct) (QL) ...... 56

R v Curragh Inc. (1993), 125 NSR (2d) 185 (NS Prov Ct) ...... 67

R v Davis (1977), 37 CCC (2d) 114 (Sask CA) ...... 77

R v DeSousa, [1992] 2 SCR 944 ...... 27, 34, 67

R v Dolynchuk, [1934] 2 DLR 96, 61 CCC 275 (Man CA) ...... 93

R v Finlay, [1993] 3 SCR 103 ...... 43

R v Fisher (1992), 13 CR (4th) 222 (BC CA), 1992 CarswellBC 462 ...... 94

R c Fournier, 2016 QCCS 5456 ...... 67

R c Fournier, 2018 QCCQ 1071 ...... 67

R v George, 2017 SCC 38, [2017] 1 SCR 1021 ...... 1, 61, 65, 79, 83

R v Gosset, [1993] 3 SCR 76 ...... 43

R v Hamilton, 2005 SCC 47, [2005] 2 SCR 432 ...... 36

R v Harshbarger, 2010 NLTD(G) 152 ...... 56

R v Henry, 2005 SCC 76, [2005] 3 SCR 609 ...... 52

R v Hibbert, [1995] 2 SCR 973 ...... 53 43 Appellant’s Factum Table of Authorities

R v Hundal, [1993] 1 SCR 867 ...... 43

R v Hunter, 2015 SKCA 137 ...... 62

R v J.F., 2008 SCC 60, [2008] 3 SCR 215 ...... 50, 81

R v J.M.H., 2011 SCC 45, [2011] 3 SCR 197 ...... 31, 60

R v K.R.T., 2005 MBCA 78 ...... 74

R v Katigbak, 2011 SCC 48, [2011] 3 SCR 326 ...... 84, 89

R v Kent, [1994] 3 SCR 133 ...... 61

R v L. (J.), 204 CCC (3d) 324, 2006 CanLII 805 (Ont CA) ...... 56

R v L.M., 2018 NWTTC 6 ...... 67

R v Laari, 2015 ONCJ 69 ...... 56

R v Laine, 2015 ONCA 519 ...... 56

R c Laprise (1996), 113 CCC (3d) 87, 1996 CarswellQue 1028 (Qc CA) ...... 94

R v Larkin, [1943] 1 All ER 217 (Ct CA) ...... 34

R v Lelievre (1962), 132 CCC 288 (Ont CA) ...... 34

R v Lovett, 2017 ABQB 46 ...... 56

R v Maybin, 2012 SCC 24, [2012] SCR 30 ...... 95

R v McRae, 2013 SCC 68, [2013] 3 SCR 931 ...... 84

R v Morin, [1992] 3 SCR 286 ...... 60

R v Naglik, [1993] 3 SCR 122 ...... 43

R v Nette, 2001 SCC 78, [2001] 3 SCR 488 ...... 95

R v Nur, 2015 SCC 15, [2015] 1 SCR 773 ...... 52

R v Porto, 2018 ONCA 291 ...... 56

R v Reed (1997), 124 CCC (3d) 258, 86 BCAC 111 ...... 63

R v Reed, [1998] 1 SCR 753 ...... 63

R v Robichaud, 2012 NBCA 87 ...... 62 44 Appellant’s Factum Table of Authorities

R v Roy, 2012 SCC 26, [2012] 2 SCR 60 ...... 45-46, 54, 58, 60, 68-69

R v S (G), [1990] 2 SCR 294 ...... 101

R v S (S), [1990] 2 SCR 254 ...... 101

R v Swanney, 2006 BCSC 1766 ...... 56

R v Tayfel (M.), 2009 MBCA 124 ...... 56

R v Tennant and Naccarato (1975), 23 CCC (2d) 80 (Ont CA) ...... 34

R v Tran, 2010 SCC 58, [2010] 3 SCR 350 ...... 53

R v Turpin, [1989] 1 SCR 1296 ...... 99

R v Tutton, [1989] 1 SCR 1392 ...... 43, 50

R c Vaillancourt, (1995), 105 CCC (3d) 552, [1995] JQ No 3022 (QL) (Qc CA) ...... 93

R v Vantroba, 2015 ONSC 1569 ...... 56

R v Vogel, 2011 ONCA 342 ...... 29

R v Waite, [1989] 1 SCR 1436 ...... 50

R v Wilmot, [1940] 3 DLR 358, 1940 CarswellAlta 21 (Alta CA) ...... 93

R v Wood, 2017 ONSC 3239 ...... 56

Rose v R, [1959] SCR 441 ...... 60

Salame v R, 2010 QCCA 64 ...... 47, 56

Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, [2014] 2 SCR 633 ...... 28

Schuldt v R, [1985] 2 SCR 592 ...... 60

Wilson v R, [1992] HCA 31 (High Court of Australia) ...... 36

Legislative authorities

An Act to amend the Controlled Drugs and Substances Act and to make related amendments to other Acts, SC 2017, c 7 (English / French) ...... 40

Naturopathic Physicians Regulation, BC Reg 156/2009 ...... 105

Canadian Charter of Rights and Freedoms, part I of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (UK), 1982, c 11 (English / French) ...... 2 45 Appellant’s Factum Table of Authorities

Controlled Drugs and Substances Act, SC 1996, c 19 (English / French) ...... 40

Criminal Code (English / French) ...... 101

Drugless Practitioners Act, RSO 1990, c D.18 (English / French) ...... 105

Medical Act, CQLR c M-9 (English / French) ...... 33, 38, 74, 97-98

Naturopathic Doctors Act, SNS 2008, c 5 (in force on 2 July 2008) ...... 105

Naturopathic Physicians Regulation, BC Reg 449/99 ...... 105

Naturopaths Profession Regulation, Alta Reg 126/2012 ...... 105

Naturopathy Act, SO 2007, c 10, Sch P (English / French) ...... 105

The Naturopathic Act, RSM 1987, c N80, CCSM c N80 (English / French) ...... 105

The Naturopathy Act, RSS 1978, c N-4 ...... 105

Other authorities

Boisvert, Anne-Marie, “La constitutionnalisation de la mens rea et l’émergence d’une nouvelle théorie de la responsabilité pénale” (1998) 77 Can Bar Rev 126 ...... 58

Colvin, Eric & Sanjeev Anand, Principles of Criminal Law, 3rd ed (Toronto: Carswell, 2007)… ...... 91

Côté-Harper, Gisèle, Pierre Rainville & Jean Turgeon, Traité de droit pénal canadien, 4th ed (Cowansville: Yvon Blais, 1998) ...... 58

Grant, Isabel & Christine Boyle, “Equality, Harm and Vulnerability: Homicide and Sexual Assault Post-Creighton” (1993) 23 CR (4th) 252 ...... 67

Grant, Isabel & Dorothy Chunn & Christine Boyle, The Law of Homicide (Toronto: Carswell, 1994) (loose-leaf), ch 4 ...... 36, 67

Hart, HLA, Punishment and Responsibility: Essays in the Philosophy of Law (New York: Oxford University Press, 1968) ...... 53

Healy, Patrick, “The Creighton Quartet: Enigma Variations in a Lower Key” (1993) 23 CR (4th) 265 ...... 55, 58

Manning, Morris & Peter Sankoff, Manning, Mewett & Sankoff: Criminal Law, 5th ed (Markham: LexisNexis, 2015) ...... 36, 55-56, 58, 67, 91

Ormerod, David & Karl Laird, Smith, Hogan and Ormerod’s Criminal Law, 15th ed (Oxford: Oxford University Press, 2018) ...... 36 46 Appellant’s Factum Table of Authorities

Quigley, Tim , “Constitutional Fault During the Lamer Years” (2000) 5 Can Crim Law Rev 99…… ...... 58

Roach, Kent, Criminal Law, 6th ed (Toronto: Irwin Law, 2015) ...... 45, 67

Simester, AP et al, Simester and Sullivan’s Criminal Law: Theory and Doctrine, 4th ed (Oxford: Hart Publishing, 2010) ...... 92

Storey, Tony, “Unlawful and Dangerous: A Comparative Analysis of Unlawful Act Manslaughter in English, Australian and Canadian Law” (2017) 81:2 J Crim Law 143 ...... 29

Stuart, Don, Canadian Criminal Law, 7th ed (Toronto: Carswell, 2014) ...... 53, 56, 58

Sylvestre, Marie-Ève & Manon Lapointe, “Élément mental de l’infraction : mens rea objective”, in JurisClasseur Québec — Collection droit pénal — Droit penal général (loose-leaf), vol 1, by Marie-Pierre Robert & Simon Roy, ed, fasc 4 ...... 56, 58

Sylvestre, Marie-Ève, “The Redistributive Potential of Section 7 of the Charter: Incorporating Socio-Economic Context in Criminal Law and in the Adjudication of Rights” (2011) 42:3 Ottawa L Rev 389 ...... 58

Tanovich, David M, “The Implications of Beatty For Criminal Negligence” (2008) 54 CR (6th) 38 ...... 50

Watt, David, Watt’s Manual of Criminal Jury Instructions, 2nd ed (Toronto: Carswell, 2015)… 29

Wilson, Larry C, “Beatty, J.F., and the Law of Manslaughter” (2010) 47:3 Alta L Rev 651….. 67

Wilson, Larry C,“Too Many Manslaughters” (2007) 52 Crim LQ 433 ...... 67

Yeo, Stanley, “The Fault Elements for Involuntary Manslaughter: Some Lessons from Downunder” (2000) 43 Crim LQ 291 ...... 36

NOTICE OF CONSTITUTIONAL QUESTION

SCC Court File No.: IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF QUEBEC)

BETWEEN: MITRA JA V ANMARDI APPELLANT (Respondent) -and-

HER MAJESTY THE QUEEN RESPONDENT (Appellant) -arid-

ATTORNEY GENERAL OF QUEBEC RESPONDENT (Mis-en-cause)

NOTICE OF CONSTITUTIONAL QUESTION (MITRA JA V ANMARDI, APPELLANT) (Section 33(2) of the Rules ofthe Supreme Court of Canada)

TAKE NOTICE that I, Isabel J. Schurman, Ad. E., for Mitra Javanmardi assert that the appeal raises the following constitutional questions:

1. Doss. 234 and 236 of the Criminal Code infringes. 7 of the Canadian Charter of Rights and Freedoms, and, if so, is the infringement justified under s. 1?

2. Doss. 234 and 236 of the Criminal Code infringes. 15 of the Canadian Charter of Rights and Freedoms, and, if so, is the infringement justified under s. 1?

3. Doss. 234 and 236 of the Criminal Code infringes. 6 of the Canadian Charter of Rights and Freedoms, and, if so, is the infringement justified under s. 1?

AND TAKE NOTICE that an attorney general who intends to intervene with respect to these constitutional questions may do so by serving a notice of intervention in Form 33C on all other parties and filing the notice with the Registrar of the Supreme Court of Canada within four weeks after the day on which this notice is served. 48

Dated at Montreal, Quebec, this 27th day of June, 2018.

SUPREME ADVOCACY LLP 340 Gilmour St., Suite 100 625, Boul. Rene-Levesque West, suite 700 Ottawa, ON K2P 0R3 Montreal, QC H3B 1R2 Marie-France Major Isabel J. Schurman, Ad.E. Tel.: (613) 695-8855 Tel.: (514) 868-9090 Fax: (613) 695-8580 Fax: (514) 868-9009 Email: [email protected] ischwman(a).sgslegal_ca Agent for counsel for the Appellant

~'1liS V:Jlen(UA.Q Kitb,J feh' ~I;~ G'te7 GREY & CASGRAIN, S.E.N.C. 1155, Boul. Rene-Levesque West, suite 1715 Montreal, QC H3B 2K8

Julius Grey, Ad.E. Tel.: (514) 288-6180 Fax: (514) 288-8908 jhgrey@grey casgrain .net fmmi k/b.o /lwxuJ fJ.,, fk-Ui.a:eDr;wJ DRIVOD SERVICES JURIDIQUES 2189, Boul. Sherbrooke East Montreal, QC H2K 1C8

Rose-Melanie Drivod Tel.: (514) 303-2121 Fax: (514) 723-4073 [email protected]

Counsel for the Appellant

ORIGINAL TO: THE REGISTRAR COPIES TO: DIRECTOR OF CRIMINAL AND PENAL DIRECTEUR DES POURSUITES PROSECUTIONS CRIMINELLES ET 1 Notre-Dame E, Suite 4.100 PENALES DU QUEBEC Montreal, QC H2Y 1B6 Palais de justice de Hull 17, rue Laurier, Bureau 1.230 Dionisios Galiatsatos Gatineau (Quebec) J8X 4Cl Christian Jarry 49

Tel.: (514) 393-2703 Sandra Bonanno Fax: (514) 873-9895 Tel.: (819) 776-8111 Ext: 60446 Email: [email protected] Fax: (819) 772-3986 Email: [email protected] .gc.ca Email: [email protected]

Counsel for the Respondent Agent for Counsel for the Respondent

DIRECTION GENERALE DES NOEL & ASSOCIES AFFAIRES JURIDIQUES, 111 , rue Champlain LEGISLATIVES ET DE L'ACCES A. LA Gatineau, Quebec J8X 3Rl JUSTICE 1 Notre-Dame E, Suite 4.100 Pierre Landry Montreal, QC H2Y 1B6 Tel.: (819) 771-7393 Fax: (819) 771-5397 Marie-Eve Mayer Email: p.landry(@,noelassocies.com Tel.: (514) 393-2703 Fax: (514) 873-9895 Email: marie-eve.rnayer@dpcp.!!ouv.gc.ca

Counsel for the Respondent, Attorney Agent for Counsel for the Respondent, General of Quebec Attorney General of Quebec GOWLING WLG (Canada) LLP 2600 - 160 Elgin St Ottawa, ON KIP 1C3

D. Lynne Watt Tel.: (613) 786-8695 Fax: (613) 563-9869 Email: lynne.watt@go

Ottawa Agent for the Attorney General for Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island

ATTORNEY GENERAL OF CANADA Department of Justice Canada 50 O'Connor Street, Suite 500, Room 556 Ottawa, ON K2P 6L2

Christopher M. Rupar Tel.: (613) 941-2351 Fax: (613)954-1920 Email :Christopher.rupa.r 50

Ottawa Agent for the Attorney General of Canada

GOWLING WGL (CANADA) LLP Barrister & Solicitors 2600 - 160 Elgin Street Ottawa, ON KIP 1C3

Guy Regimbald Tel: (613) 786-0197 Fax: (613) 788-3587 E-mail: 1rnv.re~imbald@110 ling.wl,g.com

Ottawa Agent for Attorney General of Northwest Territories and Nunavut

SUPREME ADVOCACY LLP 340 Gilmour Street, Suite 100 Ottawa, ON K2P OR3

Eugene Meehan, Q.C. Tel: (613) 695-8855 Fax: (613) 695-8580 E-mail : [email protected]

Ottawa Agent for the Attorney General of Yukon

GOWLING WLG (Canada) LLP 2600 - 160 Elgin Street Ottawa, ON KIP 1C3

Robert E. Houston, Q.C. Tel.: (613) 783-8817 Fax: (613) 788-3500 Email : [email protected]

Ottawa Agent for the Attorney General of Newfoundland and Labrador, British Columbia

BORDEN LADNER GERVAIS LLP Suite 1300, 100 Queen Street Ottawa, ON KIP 119

Nadia Effendi 51

Tel.: (613) 787-356T Fax: (613) 230-8842 Email: [email protected]

Ottawa Agent for the Attorney General of Ontario