Her Majesty The Queen Appellant
Arthur Thomas Tutton
Carol Anne Tutton
indexed as: r. v. tutton
File No.: 19284.
1987: November 10; 1989: June 8.
Present: Dickson C.J. and Beetz*, Estey*, McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux-Dubé JJ.
on appeal from the court of appeal for ontario
Criminal law -- Criminal negligence -- Necessaries of life -- Manslaughter -- Diabetic child dying after insulin withdrawn by parents -- Parents' action motivated by belief that son cured by Divine intervention -- Belief in faith healing part of parents' religious convictions -- Whether or not parents guilty of causing death through criminal negligence -- Whether or not objective standard or subjective *
Beetz, Estey and Le Dain JJ. took no part in the judgment.
standard to be used in determining if wanton or reckless disregard for life or safety of others -Criminal Code, R.S.C. 1970, c. C-34, ss. 197(1), (2), 202(1), 205(1), (2), (3), (4), (5), 219.
Respondents were parents of a five-year-old diabetic. They believed in faith healing but their religious convictions did not prevent them from seeking and acting on medical advice or from taking medicines. As the result of the intentional withholding of prescribed insulin upon the belief that the child had been miraculously cured, the child died.
Respondents were charged with causing their son's death by criminal negligence in that they denied him the necessaries of life without lawful excuse and thereby committed manslaughter. They raised the defence of an honest although mistaken belief in the existence of a circumstance which would render their conduct non-culpable. Respondents were convicted of manslaughter and appealed to the Court of Appeal which set aside the convictions and directed new trials. This appeal was taken by leave.
Held: The appeal should be dismissed.
Per Dickson C.J. and Wilson and La Forest JJ.: The imposition of criminal liability in the absence of proof of a blameworthy state of mind, either as an inference from the nature of the act committed or by other evidence, does not sit comfortably with the principles of penal liability and fundamental justice. A serious criminal offence, absent clear statutory language and purpose to the contrary, should not be interpreted as an absolute liability offence. Rather, the
presumption should be in favour of some degree of mental blameworthiness if the text and purpose can support such an interpretation.
Section 202 of the Criminal Code is notorious in its ambiguity; its interpretation depends on which words are emphasized. Given its fundamental ambiguity, it should be given the interpretation most consonant not only with its text and purpose but also, where possible, with the broader concepts and principles of the criminal law.
The phrase "wanton or reckless disregard for the lives or safety of other persons" signifies more than gross negligence in the objective sense. It requires some degree of awareness or advertence to the threat to the lives or safety of others or alternatively a wilful blindness to that threat which is culpable in light of the gravity of the risk assumed.
Conduct that displays a wanton or reckless disregard for the lives or safety of others will constitute the actus reus of the offence under s. 202 and be prima facie evidence of the accused's blameworthy state of mind. A person functioning with normal faculties of awareness and engaging in a grave departure from the norm can be assumed to be either aware of the risk or wilfully blind to it. Proof of the conduct will cast an evidentiary burden on the accused to explain why the inference should not be drawn.
Malice or intent in the sense of a mind directed to a purpose is not an element of s. 202. The fact that an accused may desire or calculate that his purpose can be achieved without the realization...