R.+c.+Tutton

= R. v. Tutton * 1989 *SCC = The Tuttons were jointly charged with manslaughter. The indictment provided there was criminal negligence for failing to provide the necessities of life. In this case, it was a failure to provide insulin to the child and obtain timely medical assistance. Under **art.197**(1a) of the Criminal Code, everyone is under a legal duty as a parent to provide the necessities of life for a child under age 16; and (2) commits an offence if they fail without lawful excuse to perform that duty. Under **art. 202**(1) everyone is criminally negligence who (a) in not doing anything or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons. -McLachlin agrees with Court of Appeal judge that the jury may have been confused and thus a new trial is necessary - -Charge of manslaughter – requires proof beyond reasonable doubt -Charge of criminal negligence for failure to provide the necessities of life without lawful excuse – burden of proof based on balance of probabilities -Basically, the discussion of the lawful excuse by the trial judge may have led the jury to form the incorrect impression that both with respect to the actual offence charged (manslaughter) and the underlying question regarding the necessities of life, the standard was only the balance of probabilities -McLachlin proposes that keeping the two offences separate can be achieved by outlining the charge in the following way for the jury: -Deal with the underlying offence in s.197(2) – jury should be told that for a conviction under this section they must be satisfied __beyond a reasonable doubt__ that the appellants were under a duty to provide necessities of life and that they failed to do so without lawful excuse. *Jury not satisfied beyond reasonable doubt that accused was under such a duty and that they failed without lawful excuse? Then accused is acquitted for the sole basis of manslaughter claim is gone. *If jury found the accused had failed to provide the necessities but was in doubt as to whether deprivation caused son’s death, they could convict of the offence under s.197. -This approach clarifies for the jury that in reaching a conclusion for the offence of manslaughter, it is the conduct of the parents regarding providing the necessities of life which must be considered in deciding if wanton and reckless disregard has been shown. -Note that the words of s.202 are clear that someone is criminally negligent who in any commission OR omission pertaining to his duty shows wanton disregard for the lives or safety of others. -criminal negligence is a case where mental state is not important – s.202 is an example as it simply seeks to prevent a certain conduct and its results. It is an objective test. -this is seen from the word choice in s.202 – //shows// wanton or reckless disregard -Generally, in criminal law we punish the act coupled with the mental state or intent. -However, in criminal negligence, the act which exhibits the requisite degree of negligence is punished (exhibition of wanton or reckless behavior). If this distinction is not kept clear, the dividing line between the traditional mens rea offence and the offence of criminal negligence becomes blurred. -s.202 would have no function if it involved proving intent -The test we assign for criminal negligence is the objective one of reasonableness, and proof of conduct which reveals a significant departure from the standard which one could expect from a reasonably prudent person in the circumstances. -Since the test is objective, the accused’s perception of the facts is not used to assess intention but to evaluate whether his conduct, in view of his perception of the facts was reasonable -In the instant case, the Tuttons’ assertion that a cure had been effected by Divine intervention and that insulin was unnecessary to preserve the child’s life would have to be evaluated by the jury -the jury would have to see whether such belief was honest and whether it was reasonable, taking into account context and circumstances.
 * Facts: ** The Tuttons’ son was diagnosed with diabetes. While the Tuttons were directed to inject their son with insulin, they were part of a religious sect believing in faith healing which led to their fixation on finding a cure. They discussed the possibility of a cure with Dr. Love who told the parents not to discontinue the diabetic treatments. Mrs. Tutton stopped giving her son insulin on the belief that he was being healed by the power of the Holy Spirit. He was admitted to the hospital with severe diabetic acidosis and was reproached by the Dr. – she assured him she would not withhold insulin again but a year later, it was stopped again. The child was pronounced dead upon admittance to the hospital.
 * Judicial history: ** The Tuttons appealed the conviction and the Court of Appeal allowed it, set aside the convictions and directed new trials. This appeal is by the Crown.
 * Issue: ** Should a new trial be ordered for the Tuttons? Is the test for criminal negligence – conduct showing “wanton or reckless disregard for life or safety” subjective or objective?
 * Reasoning: **
 * Holding: ** Appeal should be dismissed
 * Ratio: A n objective test must be used in determining criminal negligence as it is the opposite of thought directed action. It is the conduct of the accused, not his intention or mental state, which is relevant (regardless of whether we’re taking about acts of commission or omission.) **