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Supreme Court of Canada in Ottawa on May 11.Sean Kilpatrick/The Canadian Press

The Supreme Court of Canada has emphasized the common sense of jurors in explaining why it restored a manslaughter conviction of a father in the starvation death of his foster daughter.

The written judgment, released on Friday, is the latest of several recent cases – some in criminal law, others in family law – in which the country’s top court has told provincial appeal courts they were overzealous in trying to correct the perceived errors of trial judges.

The defendant, Kevin Goforth, had argued that because he was working 12 hours a day, six days a week as a carpenter, and because he left most childcare duties to his wife, he was too busy to foresee the risk to his foster children – the one who died, and a younger girl who needed to be hospitalized.

Kevin and Tammy Goforth became foster parents to the two girls, ages three and two, in November 2011. The birth mother had consented to a court order declaring her five children in need of protection. The two girls had been separated from their siblings and moved nine times before coming to live with the Goforths.

On July 31, 2012, the couple took the older girl to the hospital. She had suffered cardiac arrest, was not breathing, and was also emaciated, dehydrated and covered in sores and bruises. Police investigated and brought the younger child to hospital the next day. She, too, was malnourished and dehydrated, but survived. (There is a publication ban on the girls’ names.) The older girl was placed on life support because she could not breathe on her own, and died after a day and a half in hospital.

A jury convicted Ms. Goforth of second-degree murder, and Mr. Goforth of manslaughter, for denying the older girl food, water and medical attention. Both were also convicted of causing bodily harm to the younger girl. Justice Ellen Gunn of the Saskatchewan Court of Queen’s Bench sentenced Ms. Goforth in 2016 to life in prison with no possibility of parole for 17 years. Mr. Goforth was sentenced to a 15-year prison term.

The Saskatchewan Court of Appeal, in a 2-1 ruling last year, threw out Mr. Goforth’s conviction and ordered a new trial. It said Justice Gunn did not properly instruct jury members on Mr. Goforth’s secondary caregiving role, or give them enough guidance that they could decide whether his conduct was a marked departure from what a reasonable parent would do in his circumstances. The appeal court also said Justice Gunn had done a poor job of explaining a critical issue: whether Mr. Goforth knew he was doing wrong.

But the Supreme Court said that while the jury instructions were flawed in some respects, they did not need to be perfect, and that the jurors understood their task. (The Supreme Court made its ruling on Mr. Goforth’s case in December, after a hearing, and released its explanation on Friday.)

“Jurors do not check their common sense at the door of the deliberation room,” Supreme Court Justice Suzanne Côté wrote for six judges.

“Given the evidence and the circumstances of the trial as a whole, I am confident that the jury in this case was well‑equipped to make a common sense assessment of whether failing to provide food or fluids to young children constituted a marked departure from the conduct of a reasonably prudent person.”

On Mr. Goforth’s secondary role as a caregiver, Justice Côté wrote that it was far from a critical issue. The dissenting judge at the appeal court had said, based on photographs, that the children were in “soul-crushing condition.” Justice Michael Moldaver, at the December hearing, said they were “skeletal.”

Mr. Goforth “was well positioned to observe their condition, yet he did nothing,” Justice Côté wrote.

The remaining three judges on the nine-member court said in a separate concurring judgment that the jury instructions were deeply flawed, but that no miscarriage of justice had occurred. Justice Russell Brown wrote the concurrence, supported by Justice Sheilah Martin and Justice Mahmud Jamal.

Danielle Robitaille, a criminal defence lawyer who was not involved in the case, said in an interview that the Supreme Court has been emphasizing the finality of trial decisions, and trying to curb delay. But, she said, “in producing a judgment that essentially says ‘no harm, no foul,’ they’ve lost the opportunity to provide guidance to lower courts” on how jury instructions should address such matters as criminal intent.

The Saskatchewan Court of Appeal now must decide whether to uphold the 15-year prison sentence. The defence has asked for eight to 10 years.

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