Criminal Negligence (Offence)

Criminal Negligence
	s. 219, 220 and 221 of the Crim. Code
Election / Plea
Crown Election	Indictment;
Jurisdiction	Prov. Court; Sup. Court w/ Jury (); Sup. Court w/ Judge-alone (); * Must be indictable. Preliminary inquiry also available.
Indictable Dispositions
Avail. Disp.	Discharge (730); Suspended Sentence (731(1)(a)); Fine (734); Fine + Probation (731(1)(b)); Jail (718.3, 787); Jail + Probation (731(1)(b)); Jail + Fine (734); Conditional Sentence (742.1); ( varies)
Minimum	4 years incarceration
Maximum	10 years incarceration or Life
Reference
	Offence Elements; Sentence Digests;

< Criminal Law/Sentencing
< Offences

Overview

Offences relating to criminal negligence are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Although criminal negligence is a broadly-defined offence, in practice, most charges of criminal negligence related to the accused's operation of a motor vehicle.

Pleadings

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)	Preliminary Inquiry
s. 220 [criminal negligence causing death]	Indictable Offence(s)		Yes	(life max)
s. 221 [criminal negligence causing bodily harm]	Indictable Offence(s)		Yes	(under 14 years max)

Offences under s. 220 [criminal negligence causing death] are straight indictable. There is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).

Offences under s. 221 [criminal negligence causing bodily harm] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 220 [criminal negligence causing death]	Template:ReleaseProfile-OnlyBail
s. 221 [criminal negligence causing bodily harm]	Template:ReleaseProfile-OICorBail

Template:ReleaseOnlyBail

Template:ReleaseOICorBail

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
"for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

Fingeprints and Photos

A peace officer who charges a person under s. 220 and 221 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Ban

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 220 [criminal negligence causing death] or s. 221 [criminal negligence causing bodily harm]

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Criminal negligence

219. (1) Every one is criminally negligent who

(a) in 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.

Definition of “duty”

(2) For the purposes of this section, “duty” means a duty imposed by law.
R.S., c. C-34, s. 202.

– CCC

Causing death by criminal negligence

220. Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

R.S., 1985, c. C-46, s. 220; 1995, c. 39, s. 141.

– CCC

Causing bodily harm by criminal negligence

221 Every person who by criminal negligence causes bodily harm to another person is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or

(b) an offence punishable on summary conviction.

R.S., 1985, c. C-46, s. 221; 2019, c. 25, s. 76

– CCC

Proof of the Offence

Proving criminal negligence under s. 219 should include:^[1] ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit had a legal duty; ☐ the conduct showed "wanton or reckless disregard for the lives or safety of others" ☐ the conduct showed a "marked and substantial departure" form the conduct of a reasonably prudent	Proving criminal negligence causing death under s. 220 should include: ☐ elements of s. 219; and ☐ the alleged act caused the death of another person.
Proving criminal negligence causing bodily harm under s. 221 should include: ☐ elements of s. 219; ☐ another person suffered bodily harm ☐ the alleged act caused the harm

↑ R v Wudrich, 2013 SKQB 35 (CanLII), per Gabrielson J, at paras 11, 16

Interpretation of the Offence

A person who signals the start of a race by dropping a “flag” is a party to the race and can be found guilty of criminal negligence.^[1]

"another person"

The meaning of "another person" does not include a foetus as it is not a "human being" within the meaning of s. 223.^[2]

↑ R v MR, 2011 ONCA 190 (CanLII), per O'Connor ACJ
↑ R v Sullivan, [1991] 1 SCR 489, 1991 CanLII 85 (SCC), per Lamer CJ

Legal Duties

For the purpose of s. 219, a "duty" refers to "a duty imposed by law."^[1]

Legal duties exist in common law and statute.^[2]

↑ S. 219(2)
↑ R v Coyne (1958), 124 CCC 176, 31 C.R. 335, 1958 CanLII 463 (NB CA), per Ritchie JA, at pp. 179-80 (CCC)
see also R v Thornton (C.A.), 1991 CanLII 7212 (ON CA), per Galligan JA

Parental Duties

Under s. 215 every person has a duty:

Duty of persons to provide necessaries

215. (1) Every one is under a legal duty

(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;

(b) to provide necessaries of life to their spouse or common-law partner; and

(c) to provide necessaries of life to a person under his charge if that person
(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and

(ii) is unable to provide himself with necessaries of life.

...
R.S., 1985, c. C-46, s. 215; 1991, c. 43, s. 9; 2000, c. 12, ss. 93, 95; 2005, c. 32, s. 11.

– CCC

There is further a common law duty "to take reasonable steps to protect his or her child from illegal violence used by the other parent or by a third person towards the child which the parent foresees or ought to foresee".^[1]

For more details see Failing to Provide the Necessities of Life (Offence).

Legal duties include the duty of foster parents to provide children in their car with the necessities of life.^[2]

↑ R v Popen (1981), 60 CCC (2d) 232, 1981 CanLII 3345 (ON CA), per Martin JA, at p. 240 (CCC)
R v Thornton (C.A.), 1991 CanLII 7212 (ON CA), per Galligan JA
↑ R v JF, 2007 ONCA 500 (CanLII), 222 CCC (3d) 474, per MacFarland JA, at paras 50 to 51, aff’d on appeal

Other Duties

Duty of persons undertaking acts dangerous to life

216. Every one who undertakes to administer surgical or medical treatment to another person or to do any other lawful act that may endanger the life of another person is, except in cases of necessity, under a legal duty to have and to use reasonable knowledge, skill and care in so doing.
R.S., c. C-34, s. 198.

– CCC

Duty of persons undertaking acts

217. Every one who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life.
R.S., c. C-34, s. 199.

– CCC

Duty of persons directing work

217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.
2003, c. 21, s. 3.

– CCC

Similar to s. 216 to 217.1, s. 45 also provides exemption for liability for surgical procedures. ^[1]

The protections of s. 216 are based on an objective standard of care expected of a member of the medical profession with reasonable knowledge, skill and care.^[2]

↑ See Acting in Authority
↑ R v Rogers, 1968 CanLII 813 (BC CA), per Tysoe JA

Mens Rea

Dangerous Driving

The mens rea for criminal negligence relating to dangerous driving requires evidence of the accused's subjective state of mind or by showing that the prohibited conduct "constituted a marked and substantial departure from the conduct of a reasonably prudent person".^[1]

Causing Death

Where death occurred as a result of the act or omission, the fault element is made out where the accused "shows wanton or reckless disregard for the lives or safety of other persons".^[2] This is measured on a "modified objective standard of fault" from the perspective of a "reasonable person... in the circumstances".^[3] The question is whether the accused's conduct "departed from that of a reasonable person in the circumstances".^[4] where the charges criminal negligence causing death, the Crown must prove that there was a "marked and substantial" departure from the standard of care.^[5] The difference between "marked departure" and "marked and substantial departure" remains unsettled.^[6]

The terms "wanton" and "reckless" are defined in common law.^[7]

↑ R v Kerr, 2013 BCCA 506 (CanLII), per Neilson JA, at para 25
Javanmardi, infra, at para 21
R. v. J.F., 2008 SCC 60 (CanLII), [2008] 3 S.C.R. 215 at para 10(complete citation pending)
R v Beatty, 2008 SCC 5, [2008] 1 SCR 49, per Charron J, at para 33
R. v. Roy, 2012 SCC 26 (CanLII), [2012] 2 S.C.R. 60, at para. 30(complete citation pending)
R. v. L. (J.) (2006), 2006 CanLII 805 (ON CA), 204 C.C.C. (3d) 324 (Ont. C.A.), at para. 15(complete citation pending)
R. v. Al-Kassem, 2015 ONCA 320 (CanLII), 78 M.V.R. (6th) 183, at para. 6(complete citation pending)
↑ R v Javanmardi, 2019 SCC 54, per Abella J, at para 20
↑ Javanmardi, ibid., at paras 20 to 21
↑ Javanmardi, ibid., at para 21
↑ Javanmardi, ibid., at para 21 ("In the context of criminal negligence causing death, however, the requisite degree of departure has been described as an elevated one — marked and substantial")
↑ Javanmardi, ibid., at para 23
↑ Javanmardi, ibid., at para 20

Alternate Charges

662
...

Conviction for dangerous operation when another offence charged

(5) For greater certainty, when a count charges an offence under section 220 , 221 or 236 arising out of the operation of a conveyance, and the evidence does not prove that offence but proves an offence under section 320.13, the accused may be convicted of an offence under that section.
...
R.S., 1985, c. C-46, s. 662; R.S., 1985, c. 27 (1st Supp.), s. 134; 2000, c. 2, s. 3; 2008, c. 6, s. 38; 2018, c. 21, s. 20.

– CCC

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. 220, 221

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 221 [criminal negligence causing bodily harm]	N/A	10 years custody
s. 220(a) [criminal negligence causing death (with firearm)] or (b) [criminal negligence causing death (no firearm)]	N/A	life in custody

Offences under s. 220(a) or (b), 221 are straight indictable. The maximum penalty is 10 years incarceration under s. 221 or life under s. 220(a), (b).

Minimum Penalties

For offences under s. 220(a) there is a mandatory minimum penalty of 4 years incarceration.

These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s)	Crown Election	Discharge s. 730	Suspended Sentence s. 731(1)(a)	Stand-alone Fine s. 731(1)(b)	Custody s. 718.3, 787	Custody and Probation s. 731(1)(b)	Custody and Fine s. 734	Conditional Sentence (CSO) s. 742.1
s. 220(a)	N/A
s. 221	N/A
s. 220(b)	N/A

Offences under s. 220(a) have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

For offences under s. 221, all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

If convicted under s. 220(b) a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".

Offences under s. 220(b) are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Criminal Negligence (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 220(a), (b) or 221	For conviction under s. 220(a), (b), or 221, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).
Delayed Parole Order	s. 220 or 221	Periods of imprisonment of 2 years or more for convictions under s. 220 or 221 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".

General Sentencing Orders

Order	Conviction	Description
Non-communication order while offender in custody (s. 743.21)	any	The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738)	any	A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737)	any	A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

General Forfeiture Orders

Forfeiture	Conviction	Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))	any	Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not* apply to summary offences*.
Fine in Lieu of Forfeiture (s. 462.37(3))	any	Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491)	any	Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1)	any	Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not* apply to summary offences*.