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SCC issues differing reasons in restoring Saskatchewan child starvation manslaughter conviction

Top court overturns appeal decision ordering a new trial despite imperfect jury instructions.

PHOTO: Stock
The Supreme Court of Canada has restored a manslaughter conviction against a Saskatchewan man for the death of a child by starvation, with Justice Suzanne Côté writing in reasons for judgement that trial judges are not held to a “standard of perfection” in crafting jury instructions.

“Rather, an appellate court must take a functional approach when reviewing a jury charge by examining the alleged errors in the context of the evidence, the entire charge, and the trial as a whole,” she wrote in R. v. Goforth, upholding the 2016 trial court decision convicting Kevin Goforth of manslaughter following the death of a four-year girl he and his wife had been fostering.

The SCC unanimously restored the conviction in December but provided reasons for that decision Friday. While the result was unanimous, concurrent decisions offered different reasons.

Kevin Goforth and his wife Tammy cared for a child who died from prolonged starvation and neglect in 2012 within nine months of being placed in the Regina couple’s care. The child had been taken to the hospital and died from a brain injury that developed after a cardiac arrest brought on by malnutrition and dehydration.

A doctor specializing in child abuse testified at the Goforth trial, saying the four-year-old was “skin over skeleton,” ​and was covered with cuts and bruises all over her body.

A younger child, who was two then, had been similarly starved and neglected in Goforth’s care but survived.

Goforth had been charged with second-degree murder, but the trial jury found him guilty of manslaughter, the lesser offence, for his role in the four-year-old’s death. The three-week trial happened in 2016.

Kevin Goforth received 15 years in prison for manslaughter, while Tammy Goforth received a life sentence for second-degree murder without parole eligibility for 17 years. Both received concurrent five-year sentences for unlawfully causing bodily harm to the girl’s two-year-old sister.

Kevin Goforth appealed the manslaughter conviction to Saskatchewan’s court of appeal. In 2021, the appeal court ordered a new trial for Goforth.

The appeal was granted in a 2-1 decision due to an error in the trial judge’s explanation to the jury before the verdict. The case was then brought by the Crown to the Supreme Court of Canada.

Goforth’s wife had also attempted to appeal her conviction and sentence, but her appeal was dismissed unanimously by Saskatchewan’s top court.

In her reasons for judgement, writing on behalf of Chief Justice Richard Wagner, Justices Michael Moldaver, Andromache Karakatsanis, Malcolm Rowe and Nicholas Kasirer, Côté said that the court has long held that an accused is “entitled to a jury that is properly — and not necessarily perfectly — instructed.”

Indeed, she wrote, trial judges must be afforded some flexibility in crafting the language of jury instructions, as their role requires them to “decant and simplify” the law and evidence for the jury.

“It is important for appellate courts to keep in mind that the cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of the jury that matters, and not whether a particular formula was recited by the judge. The particular words used, or the sequence followed, is a matter within the discretion of the trial judge and will depend on the circumstances of the case.”

She also wrote: “It is the substance of the charge — and not adherence to or departure from a prescriptive formula — that is determinative.”

In this case, Côté wrote, “ultimately, when read as a whole, the trial judge’s instructions functionally conveyed the necessary legal principles.” She acknowledged the jury charge was not perfect. The trial judge did not distinguish between the required foreseeability standard regarding providing the necessities of life and the standard of foreseeability needed for manslaughter or unlawfully causing bodily harm.

“She routinely juxtaposed the two different foreseeability requirements without clearly alerting the jury to how the respective foresight standards corresponded to the respective offences.”

“The imprecise juxtaposition of different mens rea requirements should be avoided,” she wrote. “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, Côté wrote: “There is no reasonable possibility that the jury was confused about the required mens rea . . . 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. With respect, the Court of Appeal erred in holding otherwise, for three reasons.”

In a concurring decision which provided different reasons, Justice Russell Brown (supported by Justice Sheilah Martin and Justice Mahud Jamal) wrote, “I do not accept” that the jury charge, when viewed from the functional perspective required by the jurisprudence, properly equipped the jury to decide the case.

“At many points – five, by my colleagues’ count, which I accept – this jury charge misstated an essential element of the offence that comprised the central issue, being whether the Crown had established the mens rea for the offence of failing to provide the necessaries of life. Yet, in concluding that the charge was ‘functionally’ adequate, my colleagues point to a single instance, in ‘a different portion of the charge,’ in which ‘the trial judge . . . clearly and correctly summarized the required mens rea.’ This, they say, was “the clearest explanation of the mens rea requirement.”

However, Brown wrote 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.”

“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,” he wrote.

“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. That my colleagues observe that the single correct instruction was ‘the clearest explanation’ is of no significance, either, since that observation is informed by their proper understanding of the law – an understanding which this jury did not have, which is precisely the problem.”

Still, Brown wrote in concurring with restoring the conviction that he was “persuaded of the Crown’s submission that no substantial wrong or miscarriage of justice flowed from the deficient instructions.” He added that it was “inconceivable,” given the extreme nature of the failure to provide the necessaries of life 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.

“Lawyer Aleida Oberholzer of Brian Pfefferle Law in Saskatoon, who represented Kevin Goforth on the SCC appeal, said in an interview that one thing to come out of the SCC reasons for judgement in this case is clarifying the importance of “contextualizing some relevant factors to be considered when looking at negligence-based offences.”

The Saskatchewan Court of Appeal had ordered a new trial for Goforth on the basis that the trial judge erred in her instructions to the jury regarding Kevin Goforth’s secondary role in looking after the children while wife Tammy was the primary caregiver. At the trial, evidence was given that Kevin Goforth, a carpenter, worked long hours at his job.

Oberholzer pointed to SCC Justice  Côté stating in her reasons that “neither the majority nor the dissent in the [Saskatchewan] Court of Appeal accurately characterized the relevant circumstances in this case.”

That court’s dissenting decision “described the relevant circumstances too narrowly . . . the work schedule and physical absence of one parent may be a relevant circumstance, depending on the particular factual matrix.”

The Saskatchewan appeal court majority, which ordered a new trial, on the other hand, adopted an overly broad conceptualization of the circumstances.

Côté wrote: “Indeed, given that Mr. Goforth was physically in the children’s presence on a daily basis, his alleged lack of involvement in providing necessaries for them cannot be characterized as a circumstance. Rather, it constitutes an essential element of the actus reus. Mr. Goforth had a duty to provide necessaries of life to the children. His utter neglect of them is not a circumstance that can ground his failure to foresee the risk of harm.”

Oberholzer said: “I think, especially with people making medical decisions for their children, this issue of context is going to come up quite a bit. These things don’t happen in a vacuum.”

As for the issue of jury instructions, Oberholzer said the justices seemed to indicate that the kind of imperfect instructions and repeated incorrect explanations of the law seen in this case would perhaps not be adequate under a different set of circumstances and context. However, with “overwhelming” circumstances such as in this case, she said the SCC justices thought it was “adequate enough.”

As well, while trial judges should have leeway, this case shows they should avoid ambiguity in their instructions, Oberholzer said. Trial judges speaking to juries “act as gatekeepers – they are the ones that lay people rely on to understand complex areas of law.”

She pointed to SCC Justice Brown’s concurring decision where he said that a jury “must not be left to, in effect, cobble together its own charge by guessing correctly about which part of the charge to follow and which part to disregard.”

Kevin Goforth’s case will now go back to the Saskatchewan Court of Appeal to consider a bid to reduce his sentence.


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