The Supreme Court of Canada has cleared a Montreal naturopath of criminal responsibility for the death of an 84-year-old man in a ruling that clarifies how criminal law applies in provinces where alternative-medicine practitioners are unregulated.
By a 5-2 count, the court acquitted Montreal naturopath Mitra Javanmardi of criminal negligence causing death and unlawful act manslaughter. Ms. Javanmardi, who had been a practitioner for more than two decades, gave Roger Matern an injection of nutrients in 2008. Bacteria in the nutrient solution killed him. While the injection was illegal under Quebec’s law governing health-care professions, the charges were laid under the Criminal Code of Canada.
Isabel Schurman, a member of Ms. Javanmardi’s legal team, called the 11-year saga a “misuse” of the criminal law. “This is an unfortunate example of our tendency to criminalize things that are not crimes,” she said in an interview.
Evidence showed, she said, that there was no way Ms. Javanmardi or anyone else could have detected the bacteria in one of the vials that went into the solution. “It’s horrible, it’s unfortunate, it’s tragic – but it’s not criminal.” The charges Ms. Javanmardi faced carry a maximum penalty of life in prison.
Mr. Matern, who had heart disease, went to see Ms. Javanmardi because he was unhappy with conventional care and hoped for improved quality of life. Ms. Javanmardi, a science graduate from McGill University, had extensive training and experience. She has a doctorate in naturopathic medicine from the National College of Naturopathic Medicine in Portland, Ore., and a related diploma reflecting 500 hours in additional courses. She had seen 4,000 to 5,000 patients since she opened her clinic in 1985, and has given about 10 injections of nutrients a week since 1992. None of her patients had ever become infected during a nutrient injection.
Such injections are deemed illegal in Quebec, which does not recognize or regulate alternative medical care, treating it as practicing medicine without a licence. Naturopathy is regulated in five provinces, including Ontario and British Columbia.
The prosecution had argued that Ms. Javanmardi ignored obvious dangers. But Quebec Court Justice Louise Villemure said that in spite of Quebec’s law, the naturopath was not at fault under the Criminal Code because she had the required skills to administer the injections, followed procedure and took safety precautions throughout.
The Quebec Court of Appeal threw out the acquittals, ruling that the injection was “objectively dangerous.” It said Ms. Javanmardi’s experience and training were irrelevant in deciding whether her conduct was a major departure from how a reasonable person would have acted – the standard, it said, for deciding whether she had committed criminal negligence causing death, and manslaughter. It convicted her of unlawful act manslaughter, and ordered a new trial on the charge of criminal negligence causing death.
But the Supreme Court majority was critical of the appeal court for several reasons. They said the court “inexplicably” replaced Justice Villemure’s factual findings about Ms. Javanmardi’s conduct with its own. (Appeal courts are told generally to defer to trial judges’ factual findings.)
They also said the appeal court misinterpreted a previous Supreme Court ruling known as Creighton, from 1993, in which a drug dealer injected cocaine into a woman who then died. The Supreme Court said in that case that the defendant’s background as a drug user was not relevant to deciding criminal responsibility; the law needed to apply a minimum standard to everyone. In Ms. Javanmardi’s case, the court elaborated on that ruling, saying the activity in question (the injection) matters, and so the standard was that of “the reasonably prudent naturopath.”
Justice Villemure was "not only entitled, she was obliged to consider her prior training, experience and qualifications as a naturopath,” Justice Rosalie Abella wrote for the majority, supported by Justice Michael Moldaver, Justice Andromache Karakatsanis, Justice Suzanne Côté and Justice Russell Brown.
The ruling means “that the criminal law will take into account the experience and training of a practitioner, even if their credentials are not recognized in the province where they live and practice," Ben Grant, a lawyer who represented the Canadian Association of Naturopathic Doctors, said in an e-mail. “This is important for health professions, like naturopathic medicine, which are regulated differently by different provinces.”
Anil Kapoor, who represented the Criminal Lawyers Association, said the ruling could also be applied when police officers are charged with criminal negligence causing death in cases involving substance abusers, as occurred in two recent cases in Ontario and Nova Scotia. A key consideration would be whether officers took all the steps that their training tells them they should take in the circumstances, he said.
Chief Justice Richard Wagner wrote the dissent, supported by Justice Malcolm Rowe. They would have ordered a new trial on both charges. They said the injection was objectively dangerous, and Ms. Javanmardi’s experience was irrelevant.
Mr. Matern’s daughter, Gabrielle Matern, could not be reached for comment on Thursday. She had said she did not understand the naturopath’s initial acquittal because Ms. Javanmardi had committed an illegal act and her patient died.