Decision “bittersweet” since naturopathy remains unregulated and its practice illegal in Quebec, says lawyer
A Quebec naturopath convicted of unlawful act manslaughter has had acquittals restored after the Supreme Court of Canada overturned the convictions made by Quebec’s Court of Appeal.
In R. v. Javanmardi, the majority of the Supreme Court found that the appellate court had erred in disturbing the accused’s acquittals at trial based on its conclusion that her conduct markedly departed from that of a reasonable person. In a 5/2 decision, the majority also found the Quebec Court of Appeal had erred in finding that an intravenous injection is objectively dangerous, regardless of the circumstances in which it is administered, or the training, qualifications and experience of the person who administers it.
“Naturopathic medicine is a regulated profession in Ontario and many other provinces, with stringent educational requirements and professional standards,” said Benjamin Grant of Conway Baxter Wilson LLP in Ottawa, who was lead counsel for the intervener Canadian Association of Naturopathic Doctors.
“The decision of the majority in this appeal confirms that this context is important for purposes of the criminal law even in provinces — like Quebec — which have yet to regulate naturopathic medicine.”
In June 2008, Roger Matern had visit Mitra Javanmardi’s naturopathic clinic in Quebec. Matern was 84 years old, with heart disease, and seeking alternative treatment. Javanmardi administered intravenously injected nutrients, which is against the law in Quebec, where naturopathy is unregulated. However, since her clinic opened in 1985 she had treated between 4,000 and 5,000 patients in this manner.
One of the vials used for the injections was contaminated, and Matern later died in hospital of endotoxic shock. Javanmardi was charged with criminal negligence causing death, and unlawful act manslaughter.
Javanmardi was acquitted on both charges. The trial judge was satisfied that Javanmardi had the necessary skills to administer injections, had observed the correct protocols, and taken sufficient caution, so no negligence was found; a reasonable person would not conclude there was a risk of harm.
The court of appeal set aside both acquittals and convicted Javanmardi on the charge of unlawful act manslaughter. On the second charge of criminal negligence, the court ordered a new trial. It concluded that the trial judge had misstated elements of the two offences, and that she should not have considered the training or education that Javanmardi (who holds a doctoral degree in naturopathy and has many years of clinical experience) had received to qualify her for performing the procedure she did. The appellate court also concluded that intravenous injection was dangerous, and that Javanmardi’s conduct was a marked departure from reasonable standards.
For a conviction of criminal negligence causing death, the Crown must prove that the act caused someone’s death. In this case, the act was unlawfully introducing an intravenous injection. A fault element must be proven; the accused must show wanton or reckless disregard for the life or safety of other persons, and the Crown must show a marked and substantial departure from the conduct of a reasonable person in the accused’s circumstances.
Unlawful act manslaughter is an unlawful act that causes death, and is similar to criminal negligence causing death but applies to acts that are prohibited by law, such as a naturopath performing injections. The underlying unlawful act is termed the predicate offence, and in this case was the injection that was unlawful under Quebec law, where naturopathy is not regulated.
Under s. 222(5) of the Criminal Code, the actus reus of unlawful act manslaughter requires the Crown to prove that the accused committed an unlawful act and that the unlawful act caused death. The fault element for the predicate offence must be read as a marked departure from the standard expected of a reasonable person in the circumstances, said the majority. In today’s judgement, the court found that the accused’s conduct had met that reasonableness standard.
Justice Rosalie Abella, with Justices Michael Moldaver, Andromache Karakatsanis, Suzanne Côté and Russell Brown, also found it was appropriate to consider the personal characteristics of an accused – i.e., her training, experience and qualifications – in a criminal negligence case.
“The court has emphasized that personal characteristics of the actor, or accused, in a penal negligence case can be relevant, or can assist in determining whether the person is guilty,” says Anil Kapoor of Kapoor Barristers LLP in Toronto, who acted for the Criminal Lawyers’ Association in the case.
The decision goes back to R. v. Creighton and other cases, he says, “where the court downplayed the importance of personal characteristics.” Justice Abella “reminds everybody in this judgment that personal characteristics can be important in determining guilt, or innocence.”
It is also rare that a court of appeal will substitute a conviction or its own opinion for a trial justice’s finding, which happened in this case, says Jessy Héroux of Battista Turcot Israel Corbo s.e.n.c. in Montréal, who was a counsel for the intervener Québec Association of Naturopathic Medicine and Association des naturopathes agréés du Québec.
“The Supreme Court said, if the [factual] findings are reasonable, it wasn’t the court of appeal’s place to substitute its own opinion for the trial judge’s finding,” says Héroux.
Although his client was pleased with today’s result, Héroux calls the decision “bittersweet,” as naturopathy remains unregulated in Quebec, where someone can be charged with practising medicine illegally even if they are not doing so in a professional capacity.
“There's [been] a few decisions in Quebec, where basically the court has said that if you tell your husband or wife to take Advil because the person has a headache … , technically you could be illegally practising medicine,” says Héroux. “If the person dies as a result of that, that would open the door to a charge of unlawful act manslaughter.”
The irony in this case is that, were the accused to have practised naturopathic medicine in Ontario, for example, she would likely never have been charged, says Kapoor, since the procedure she performed would be allowed there, and was also well-trained and skilled.
“If I'm a naturopath and I'm properly trained to do this, and I properly administer [the procedure], and everyone says it was properly done — well, … when doctors perform surgeries, not every patient survives, and not every doctor where the patient dies is in trouble,” he notes.
In dissenting reasons, Chief Justice Richard Wagner, with Justice Malcom Rowe concurring, would have allowed the appeal in part and ordered a new trial. They found that injecting a substance across physiological barriers is an inherently dangerous activity, and that the accused’s experience in performing the procedure did not alter this.