Criminal Negligence Causing Death (s. 220) Charges in Canada: Offences, Defences, Punishments

What is Criminal Negligence Causing Death?

Criminal negligence causing death is covered under s.220 of the Criminal Code.

Section s. 219 of the Criminal Code defines criminal negligence. Criminal negligence occurs when someone does a deliberate, unprovoked, or reckless action that disregards the lives or safety of other persons. For someone to be charged under section 220, they need to cause the death of a person while being criminally negligent under s. 219.

Criminal negligence is a serious criminal offence and is known as a straight indictable offence, which frequently results in jail time upon conviction. A person can be subject to imprisonment for life if convicted under s. 220.

Examples

Some examples of criminal negligence causing death may include the following:

• Leaving a loaded gun within reach of a minor causing the death of another;
• Firing a loaded weapon indiscriminately and causing death;
• Leaving medication within reach of a child and causing their death; and
• Driving dangerously and causing the death of another.

Defences

The defences available to a charge of criminal negligence causing death is entirely dependent on the facts of your case.

However, some defences to a charge of criminal negligence causing death include:

• The accused did not show a marked and substantial departure from the conduct of a reasonable person;
• A reasonable person in the circumstances of the accused would not have foreseen their actions to cause the death of another; and
• The accused’s conduct did not significantly contribute to another’s death.

Punishment

Criminal negligence causing death is a serious, straight indictable criminal offence, which entails a maximum punishment as follows:

• Imprisonment for life.

Criminal negligence causing death carries a minimum punishment of imprisonment for a term of four years. Punishments will also frequently involve restitution and subsequent probation.

Criminal negligence causing death convictions can also entail severe consequences for current and future employment opportunities and immigration status.

Overview of the Offence 

According to s. 220 of the Criminal Code:

Under s. 219 of the Criminal Code, criminal negligence is outlined for the purposes of s. 220.

For the Crown to secure a conviction for criminal negligence causing death, the actus reus and mens rea of criminal negligence causing death must be proven beyond a reasonable doubt.

The Guilty Act (Actus Reus)

The actus reus for criminal negligence causing death is established by proof, beyond a reasonable doubt, of the following: 

• The accused had a legal duty;
• The accused did something or omitted to do something that was their legal duty to do;
• The accused’s conduct in failing to meet their legal duty caused the death of another person.

The case of R v Javanmardi, 2019 SCC 54 (CanLII) guided what the Crown must prove to secure a conviction for criminal negligence causing death. The Crown must be able to demonstrate that the accused undertook an act or failed to do anything that was their legal duty to do. They must also prove that the act or omission caused the death of another person (at para 19).

Some legal duties are outlined in the Criminal Code. Under s. 215, parents have the duty to provide their children with the necessities of life, if the child is under the age of 16 or is unable to provide themselves with the necessities of life. S. 216 states that providers of surgical or medical treatment to another person have a duty to have reasonable knowledge, skill, and care. In S. 217 any person undertaking an act is under a legal duty to do that act if failing to do that act may be dangerous to life. Finally, s. 217.1 imposes a legal duty on anyone who undertakes, or has the authority, to direct how another person does work or performs a task, and to take reasonable steps to prevent harm to that person or any other person, arising from that work or task. The legal duties listed in the Criminal Code are not exhaustive and you may be found to have a legal duty outside of what is listed here.

When the Crown is looking at if an accused caused the death of another person, they must look at two things. First, R v Smithers, 1977 CanLII 7 (SCC), states that the Crown must prove factual causation. Factual causation assesses if not for the accused’s act or omission, would the victim’s death have occurred? If the Crown cannot prove beyond a reasonable doubt that the death would not have occurred without the accused’s act or omission, then they cannot convict the accused. Second, R v Nette, 2001 SCC 78 (CanLII), states that the Crown must also prove legal causation. Legal causation asks if the accused’s actions are a significant contributing cause of the death. If the accused’s actions are not a significant contributing cause of the death, they must not convict.

The Guilty Mind (Mens Rea)

 The mens rea of criminal negligence causing death includes proving, beyond a reasonable doubt, that:

• The accused’s conduct showed a “wanton or reckless disregard for the lives or safety of others”; and
• The accused’s conduct showed a “marked and substantial departure” from the conduct of a reasonably prudent person.

The assessment of “wanton or reckless disregard for the lives or safety of others” under s. 219, is analyzed objectively. Meaning that if a reasonable person would have foreseen the risks of the accused’s conduct and taken steps to avoid it, then the mens rea of criminal negligence will be satisfied. R v Javanmardi, 2019 SCC 54 (CanLII) outlines this reasonable person standard. In that case, the Supreme Court wrote that a judge must analyze whether the accused’s conduct departed from that of a reasonable person (at para 21).

In the context of criminal negligence causing death, the Crown must show that the accused’s conduct was a “marked and substantial” departure from that of a reasonable person (Javanmardi at para 21). Although there is no exact measurement for a marked and substantial departure, the SCC has stated that it is an elevated standard (Javanmardi at paras 22-23).

Criminal Negligence Causing Death Defences

How to Beat a Criminal Negligence Causing Death Charge

The availability and strength of any defence depend entirely on the specific facts of your case. However, the following are some common defences that may be used when fighting a criminal negligence causing death charge:

Factual innocence

A strong defence to criminal negligence causing death is to maintain that you are factually innocent. If you can show that the facts and the evidence do not support you being present at the time of the offence, being criminally negligent, or other basic elements of the offence are not met, then the Crown will not be able to secure a conviction for criminal negligence causing death.

A reasonable person in the circumstances of the accused would not have foreseen their actions to cause the death of another

If a reasonable person conducting your act or omission could not foresee the associated risks and would not have taken steps to prevent them, the Crown will not be able to prove the mens rea for criminal negligence causing death beyond a reasonable doubt, and you cannot be convicted of criminal negligence causing death.

The accused did not show a marked and substantial departure from the conduct of a reasonable person

You may not be found guilty of criminal negligence causing death even if a reasonable person could foresee the associated risk of death. If your conduct did not show a marked and substantial departure from that of a reasonable person, then the Crown will not be able to prove the mens rea for criminal negligence causing death.

The accused’s conduct did not cause the death of another

If the victim’s death would have occurred regardless of your action or omission, then the Crown will not be able to prove factual causation. Factual causation requires that the victim’s death would not have occurred but for your actions. If factual causation is not proven beyond a reasonable doubt, then the actus reus of the defence will not be satisfied, and you cannot be convicted of the offence.

The accused’s conduct did not significantly contribute to another’s death

If the accused’s actions did not significantly contribute to the victim’s death, then the Crown will not be able to prove legal causation. If legal causation is not proven beyond a reasonable doubt, then the actus reus of the defence will not be satisfied, and you cannot be convicted of the offence.

Identity

Depending on the circumstances of your case, a possible defence to criminal negligence causing death may be to raise an identity defence. For example, you may have been incorrectly identified as the perpetrator if the conduct in question was captured on a poor-quality video. In this case, for this defence to be raised successfully, you will have to prove that you were not the person whose action or omission caused the death of the victim. This can be done by corroborating evidence, such as an alibi, to remove yourself from the offence.

Any applicable Charter defences

The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s. 24(2) of the Charter.

Criminal Negligence Causing Death Punishments

The Criminal Code provides for a possible maximum term of imprisonment for life for those convicted of criminal negligence causing death.

Consequently, persons found guilty of criminal negligence causing death are not eligible for sentencing entailing a discharge or conditional sentence order. Criminal negligence causing death carries mandatory minimum incarceration sentences and will always result in a person charged being incarcerated.

Specifically, in criminal negligence causing death cases, courts have also paid attention to the following non-exhaustive factors for sentencing:

1. Mental health concerns;
2. The intellectual function of the offender(s);
3. Whether force was applied by the offender(s) to the victim(s);
4. Accountability of the offender(s);
5. The moral culpability of the offender(s) actions; and
6. Whether the offender(s) intended the consequence of their actions.

Frequently Asked Questions

What is the punishment for criminal negligence causing death in Canada?

The maximum punishment for criminal negligence causing death in Canada is imprisonment for life. In cases where a firearm is used in the commission of the offence, there is a minimum punishment of imprisonment for a term of four years.

How to establish criminal negligence causing death?

Criminal negligence causing death is established in Canada when someone’s act or omission, causes the death of another. If the accused’s act or omission did not cause the death of another, or if it did not seriously contribute to that person’s death, then criminal negligence will not be established. Additionally, an accused’s action or omission will have to be found to be a marked and substantial departure from that of a reasonable person. Criminal negligence will not be established if the accused’s action or omission is not a marked and substantial departure from that of a reasonable person.

What is the difference between civil and criminal negligence?

Civil negligence occurs when a person fails to exercise the ordinary care that a reasonable person would take under the same or similar circumstances. Civil negligence is used to determine liability in many types of civil actions.

Criminal negligence requires a person to show a wanton or reckless disregard, in an act or omission, for the safety of others. Regarding criminal negligence, only the government can bring this case. Therefore, the Crown will examine the facts and ultimately decide if a criminal charge should be filed.

Published Decisions

R v Javanmardi, 2019 SCC 54 (CanLII)

The accused was a naturopath and saw a new patient with heart disease. The accused administered an intravenous injection and the new patient experienced immediate side effects. The patient ended up suffering from endotoxic shock and died of this condition. The SCC held that the accused’s actions were not a marked and substantial departure from the reasonable naturopath.

You can read the full decision here.

R v Morrisey, 2000 SCC 39 (CanLII)

The accused was drinking with his friend and his friend’s father at an isolated camp in the woods. The accused drove his friend’s father home and returned to the camp to find his friend asleep. The accused, while holding a rifle he knew was loaded, decided to try and wake his friend up. The accused fell and lost his footing, the gun discharged, and the bullet struck his friend in the head, killing him instantly. The accused was convicted of criminal negligence causing death.

You can read the full decision here.

R v Tutton, 1989 CanLII 103 (SCC)

The accused were parents of a diabetic son who believed their child would be cured by God and did not give him insulin. The parents had attempted this in the past and their doctor had told them that if their son did not receive his insulin, then he would die. The child died and the accused were convicted.

You can read the full decision here.