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R v Tutton and Tutton, [1989] 1 SCR 1392

Facts:

T and T were parents of 5 yr old (X) who died. X had diabetes. They thought God would cure son so stopped insulin. X sick had to go to hospital. T told never to do it again it’s dangerous. T withholds insulin again. X dies.

s.222(5)(b)
**AR: Act of crim negligence (MR: marked and significant departure), that causes death (s.222(1))
S.219(1)(b)
**AR: failing to fulfill a duty – there is no MR attached here, is an exception
s.215(1)(a)
**AR: failure to provide necessaries of life, ,16yrs old, accused has to be either parent, foster parent, guardian, etc
**MR: marked departure form the standard of care of a reasonable person
s.215(2)(a)(ii) AR: (3)
**Legal duty which they failed to fulfill
***S.215(1) - Provide necessities of life – (MR: Standard – marked departure)
**Endangerment of life (s.215(2)(a)(ii)) (forbidden consequence)

Ratio:

Modified Objective Standard: The test is that of reasonableness, and proof of conduct which reveals a marked departure and significant (substantial) departure from the standard which could be expected of a reasonably prudent person in the circumstances – to justify a conviction of criminal negligence

Analysis:

Majority
**In the case of negligence the words wanton or reckless (in s.219) cannot be based on subjective MR
**There is no distinction between whether it was a positive act or an omission in the sense of s.219 – in both cases it is an objective standard
**Is a mistake in belief defence available for someone who is charged with criminal negligence? (Yes if reasonable)
***A mistake in belief need not be reasonable (Pappajohn) – however when looking at negligence this is wrong
****Any mistaken belief which could afford a defence in a charge of criminal negligence would have to be reasonable

Dissent:
**The phrase “reckless disregard for the lives or safety of others” requires the Crown to prove awareness of the risk that the prohibited consequences will come to pass.
***Reckless is subjective (Sansregret)

Holding:

New Trial Ordered

Comments:

*3 judges said that the proper standard is an objective standard
*2 held that it should be a modified objective standard – place reasonable person in position of the accused – this is the law
*1 judge said it needs to be further modified to take into consideration capacity issues (Lamer)

*Failure to provide necessaries (s.215(1)(a)) – Crown had to prove a marked departure from the conduct of a reasonably prudent person (R v JF)
*Criminal Negligence (s.219) – Crown had to prove that the accused’s same conduct was a marked and substantial departure form the conduct of a reasonably prudent person (R v Tutton)


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