Yes. Appeal dismissed.
Thornton’s action clearly constitutes a breach of the common law duty to refrain from conduct which one foresees could cause serious harm to another person.
Judge draws, by analogy, upon principles in tort cases such as the principle in Donoghue v. Stevenson whereby in law you must not injure your neighbour.
Thornton v. R.  2 S.C.R. 445 (Appeal dismissed again)
Section 216 imposed upon Thornton a duty of care (Supreme Court thereby accepts the trial judge’s analogy to a medical procedure) which he breached by not disclosing that his blood was HIV-infected. He created a common nuisance.
R. v. Browne  116 C.C.C. (3d) 183 (Ont. C.A.)
Browne and his deceased girlfriend dealt drugs together. To avoid detection during a strip search, the girlfriend swallowed a plastic bag of crack cocaine. She failed to vomit it up and later that night Browne found her shaking and sweating so he said he would take her to the hospital and called a cab to do so. The cab took too long to arrive and take her to the hospital, and she later died.
Had Browne undertaken a legal duty to bring the victim to the hospital making him criminally negligent when he called a cab instead of 911, and thereby causing the death of his girlfriend?
No. Appeal allowed; Browne acquitted.
Before someone is convicted of recklessly breaching a legal duty generated by his or her undertaking, that undertaking must have been clearly made, and with binding intent. Nothing short of this can give rise to a legal duty as per s. 217 of the Code.
Trial judge erred when she started by determining whether there was a duty of care. She should have started her analysis by determining whether there was an undertaking.
People v. Beardsley  113 N.W. 1128 (Michigan S.C.)
Beardsley rented out rooms in his house. One day he drank heavily with a woman. This woman chose to ingest morphine as well. She fell into a state of stupor but Beardsley was too drunk to care for her so he asked the man renting out his basement to look after her. After a while, the man in the basement became alarmed at the woman’s condition so he called a city marshal and a doctor. The woman was dead. Beardsley was convicted of manslaughter.
Was Beardsley legally responsible for the death of the woman by failing to exercise a duty to care for her and take steps for her protection?
No. Conviction set aside.