SCC considers appellate review of jury charges in case where foster parents starved child to death

By Cristin Schmitz

Last Updated: Friday, June 10, 2022 @ 4:54 PM

Law360 Canada (June 10, 2022, 3:12 PM EDT) -- The Supreme Court of Canada has ruled that a trial judge’s flawed jury charge in a “tragic and abhorrent” child neglect case was adequate to enable the jury to properly convict a foster parent for starving and dehydrating a 4-year-old child to death, and similarly inflicting serious injuries on a toddler in his care.

On June 10, the top court provided written reasons for its 9-0 oral judgment from the bench last December allowing the Saskatchewan Crown’s appeal, and restoring the convictions of Kevin Goforth for unlawful act manslaughter and unlawfully causing bodily harm to two happy and healthy toddlers, who were placed in his and his co-accused wife’s care in 2011, nine months before both girls ended up hospitalized, emaciated and at death’s door: R. v. Goforth, 2022 SCC 25.

Crown counsel who argued the appeal, Pouria Tabrizi-Reardigan of Saskatchewan’s Ministry of Justice and Attorney General in Regina, told The Lawyer’s Daily that “in this case, both offenders have been held accountable for their roles in the extreme neglect of two young children.”

Crown counsel Pouria Tabrizi-Reardigan

Crown counsel Pouria Tabrizi-Reardigan

Tabrizi-Reardigan said the Supreme Court’s reasons for judgment address appellate scrutiny of jury instructions. “The court reiterated the importance of assessing jury instructions in the context of the evidence presented at trial,” he said.

University of Calgary law professor Lisa Silver said the court’s concurring judgment, written by Justice Russell Brown, points up that it is “really important” for lawyers and judges to remember that “we are legally trained, and the jury is not. This means that plain language, easily understandable, and clear jury charges should be the norm. The appellate courts should not be doing mental gymnastics to show that an instruction is ‘functionally’ appropriate, particularly where an essential part of the law is being explained.”

Aleida Oberholzer of Saskatoon’s Pfefferle Law Office, who argued Goforth’s appeal with Zachary Carter, said the top court has clarified that “there are some contextual considerations that can be determinative when assessing someone’s criminal liability on negligent-based offences: The existence or nature of a spousal relationship can be considered a relevant circumstance — the circumstances of a single parent may be significantly different than the circumstances of a parent in a two-parent home. Similarly, the work schedule and physical absence of one parent may be a relevant circumstance, depending on the particular factual matrix.”

Oberholzer said that clarification from Justice Suzanne Côté, who wrote the main judgment, could be considered a newly established factor in determining negligent-based mens rea.

However, the standard of jury instructions remains somewhat murky, she suggested. Justice Russell Brown (backed by Justices Sheilah Martin and Mahmud Jamal) is clearly under the impression that repeated incorrect instructions “in critical sections” of a jury charge does not pass muster, Oberholzer said. However, the majority, despite agreeing that the instructions in this case were “routinely” incorrect, found the jury charge was adequate in these “set of circumstances.” Unlike the minority, the majority does not apply the curative proviso, but they do contextualize the instructions, making this area murky, Oberholzer suggested.

Her advice to defence counsel in the wake of the judgment? “If you are confused by the jury instructions, the jury will be as well. Make sure you object!”

Oberholzer also predicted that in the wake of Goforth “trial judges and counsel will be more careful when making argument on instructions. They need to be clear and correct in law, despite what may seem to be overwhelming evidence.”

The older child, who was 3 when placed into the Goforths’ home and 4 when she died, stopped breathing, due to a cardiac arrest she experienced as a result of prolonged malnutrition and dehydration. She was described by a doctor at trial as being “skin over skeleton.” She also had kidney failure, likely due to severe dehydration.

The 2-year-old toddler was similarly treated by the Goforths, but she survived. Both children had multiple bruises, abrasions and sores when they were hospitalized. Their weight was significantly below the third percentile for their ages.

The children were placed into the Goforths’ permanent care on Nov. 8, 2011, after a year and half in temporary care with others. On the night of July 31, 2012, the Goforths took the older child to the hospital because she wasn’t breathing, due to cardiac arrest. It took hospital staff 15 minutes to resuscitate her. She was later declared brain-dead, and died after her life support was removed on Aug. 2, 2012.

The next day after the 4-year-old was first hospitalized, the younger child was taken from the Goforths’ home by police. She was emaciated, malnourished and dehydrated. She had the increased body hair that is seen in some people suffering from anorexia nervosa. The younger child had pneumonia, a urinary tract infection and a large infected ulcer on one of her legs. Her face was bruised. She had open sores and abrasions on her lower spine, as well as wrap‑around lesions on her wrists and ankles, according to the Supreme Court’s judgment.

Goforth and his wife, Tammy, were both charged with, and jointly tried for, second degree murder in the older child’s death, and unlawfully causing bodily harm to the younger child.

All the charges were predicated on the alleged failure of the co-accused to provide the children with the necessaries of life, contrary to s. 215 of the Criminal Code.

Goforth’s wife, who unsuccessfully appealed, was convicted by the jury of second degree murder and unlawfully causing bodily harm.

The jury acquitted Goforth of murder, convicting him rather of the lesser, and included, offences of unlawful act manslaughter and of unlawfully causing bodily harm.

Goforth’s appeal succeeded at the Saskatchewan Court of Appeal, where a majority ordered a new trial on the basis that the trial judge erred in describing the mens rea requirement for the predicate offence of failing to provide necessaries of life, as well as in failing to review, and to instruct, the jury on proffered evidence that Tammy was the children’s main caregiver, while Goforth, a carpenter, acted only as a secondary caregiver, because he was busy working, leaving his wife to handle all of the children’s day-to-day care.

Justice Suzanne Côté

Justice Suzanne Côté

In allowing the Crown’s appeal and restoring Goforth’s convictions, Justice Côté, writing for six judges, held that the jury was properly instructed, such that it was able to find that Goforth had the requisite mens rea, even though those instructions were somewhat flawed. In particular, the question was whether the trial judge fatally erred in charging the jury by intermingling the more stringent foreseeability standard for the offence of failure to provide the necessaries of life under s. 215 of the Criminal Code with the required foreseeability standard for manslaughter or unlawfully causing bodily harm.

“In my view, the majority of the Court of Appeal erred by failing to take a functional approach in its assessment of the jury charge,” Justice Côté wrote. “This court has long held that an accused is entitled to a jury that is properly — and not necessarily perfectly — instructed. The ultimate question in this appeal is whether the jury was properly instructed such that appellate intervention was unwarranted. In my view, while the charge was not perfect, the jury was nonetheless properly instructed. None of the issues raised in connection with the jury charge warranted appellate intervention.”

Justice Côté concluded that the jury charge functionally conveyed the mens rea requirements such that there was no reasonable possibility that the jury would have been confused.

She held that the charge also sufficiently recited the evidence about the circumstances that the accused argued prevented him from foreseeing the risk of harm to the children.

“In light of the evidence relating to the children’s deplorable and heart‑wrenching condition, none of these alleged circumstances could have possibly prevented Mr. Goforth from foreseeing the risk of harm to them,” Justice Côté said. “According to his own evidence, Mr. Goforth ate dinner with all of the children — the Goforths’ own children and their foster children — almost every evening. He testified that the girls got sick about twice a month but that at no point did he think he or Ms. Goforth should call the doctor or the free health line. He was well positioned to observe their condition, yet he did nothing. The uncontroverted medical evidence presented at trial indicated that both girls suffered from malnutrition over a prolonged period.”

Justice Côté also ruled that jury was “well‑equipped to make a commonsense assessment” as to whether failing to provide food or fluids to young children constituted a marked departure from the conduct of a reasonably prudent person.

In a concurring opinion backed by Justices Martin and Jamal, Justice Brown disagreed with his six colleagues that the jury charge, when viewed from the “functional perspective” required by the jurisprudence, properly equipped the jury to decide the case.

Justice Brown noted that the trial judge gave five incorrect instructions and only one that was correct. “What my colleagues do not account for, however, is that, merely because they have the insight to distinguish the single correct instruction from the repeated incorrect instructions, it does not follow that the jury had that insight,” he wrote. “This charge may have been ‘functionally’ adequate from the standpoint of a reviewing court searching for a correct instruction. But that is not the same thing as a charge that is ‘functionally’ adequate for the purposes of a jury knowing the law that it must apply to the evidence. There is no reason to suppose that this jury could possibly have known to single out that single correct instruction as the one to follow, and to ignore the five incorrect instructions as mere distractions.”

Justice Brown held that “by commingling, confusing and ‘routinely’ and with ‘frequency’ (to use my colleagues’ terms at paras. 35 and 37) substituting the differing standards of foreseeability of harm” as between manslaughter and failing to provide the necessaries of life, the trial judge “left the jury equipped with a charge that, in critical sections, is not comprehensible to a legally trained reader, let alone to a layperson juror. Compounding the confusion, the jury charge addressed the mens rea under a heading relating to the actus reus. It cannot plausibly be maintained that this charge left the jury equipped to do its job.”

Justice Brown went on, however, to apply the “curative” provision in s. 686 of the Criminal Code to restore Goforth’s convictions for manslaughter and unlawfully causing bodily harm, on the basis that no substantial wrong or miscarriage of justice flowed from the trial judge’s deficient instructions.

“It is inconceivable, given the extreme form which the failure to provide the necessaries of life took in this case, that the jury would not have found that the Crown had established the more stringent foreseeability requirement applicable to failing to provide the necessaries of life,” Justice Brown explained.

University of Calgary law professor Lisa Silver

University of Calgary law professor Lisa Silver

Silver said the Supreme Court’s judgment is interesting for the judges’ differing views on whether the jury in question was properly instructed on the law. The majority said it had “no trouble” finding that the jury was properly instructed despite the fact the trial judge erred in instructing the jury on an essential element of the offence five times, Silver noted. “The majority applied the ‘functional’ approach to appellate review, which is concerned more with whether the instructions as a whole gave the jury the legal principles needed to properly determine the ultimate issue of guilt or innocence,” she said. “In the majority’s view, as there was one area in the charge that was ‘the clearest explanation’ of the required mens rea, the instruction was functionally correct.”

However, the minority concluded that the jury charge did not help the jury at all as the instructions were confusing, inadequate and barely “functional” for someone with legal training. “The point being that, of course, highly trained Supreme Court of Canada judges can see a portion of the charge to the jury that was correct, but would a jury of lay people appreciate this, and would they apply that portion of the instructions to the facts?” Silver remarked. “As Justice Brown rightly, in my view, suggests ‘the jury must not be left to, in effect, cobble together its own charge by guessing correctly about which part of the charge to follow.’”

In addressing the differing mens rea requirements applicable in the case, Justice Côté explained that in order to satisfy the mens rea for failing to provide the necessaries of life under s. 215, the Crown had to prove that (a) it was objectively foreseeable, to a reasonable person in the circumstances of the accused, that the failure to provide food, fluids, or medical care would lead to a risk of danger to the life, or a risk of permanent endangerment to the health, of the children; and that (b) the accused’s conduct represented a marked departure from the conduct expected of a reasonably prudent parent, foster parent, guardian, or head of a family in the circumstances.

Whereas in order to satisfy the mens rea requirement for either manslaughter or unlawfully causing bodily harm, the Crown needed to prove— in addition to establishing the mens rea for s. 215 — that it was objectively foreseeable, to a reasonable person in the circumstances of the accused, that the failure to provide necessaries of life to the children would lead to a risk of bodily harm which was neither trivial nor transitory.

Justice Côté noted that the latter is a lower foreseeability standard than what is required for s. 215, as the foreseeability of death or of permanent endangerment to health is not required. Therefore, when the s. 215 offence of failure to provide the necessaries of life is the predicate offence for either manslaughter or unlawfully causing bodily harm, if the Crown proves the requisite mens rea for s. 215 “then, by necessary implication, the additional mens rea requirement for manslaughter or unlawfully causing bodily harm will be satisfied,” she explained.

She concluded that when read as a whole, the trial judge’s instructions functionally conveyed the necessary legal principles. “The trial judge did not make a clear distinction between the required foreseeability standard for s. 215 and the required foreseeability standard for manslaughter or unlawfully causing bodily harm,” Justice Côté said. “She routinely juxtaposed the two different foreseeability requirements without clearly alerting the jury to how the respective foresight standards corresponded to the respective offences.”

Justice Côté instructed that the “imprecise juxtaposition of different mens rea requirements should be avoided. It could potentially confuse the jury and could potentially necessitate a new trial in a different set of circumstances. However, in the circumstances of this case, there is no reasonable possibility that the jury was confused about the required mens rea for s. 215 or misled about what the Crown had to prove in order for the jury to find Mr. Goforth guilty of either manslaughter or unlawfully causing bodily harm.”

Addressing the Court of Appeal majority’s conclusion that the trial judge failed to adequately address Goforth’s circumstances — including his alleged reliance on his wife, his alleged limited interaction with the girls, and the girls’ alleged history of being picky eaters and suffering from illness regularly — much of that evidence “was immaterial given the evidence of emaciation and neglect,” Justice Côté wrote. “Any reasonable parent in Mr. Goforth’s circumstances would have foreseen the danger and would have taken action.”

Photo of Justice Suzanne Côté by Philippe Landreville photography

If you have any information, story ideas or news tips for The Lawyer’s Dailyplease contact Cristin Schmitz at or call 613 820-2794.

LexisNexis® Research Solutions