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accused charged with dangerous driving causing death for running through a red light. This is penal negligence.
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Held: general rule is objective but must be applied in the context of all of the circumstances (contextual) but no personal attributes come into play, at least for driving offences.
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Rejected subjective mental element for driving
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Modified/situational objective standard which considers the events surrounding the event (but not personal characteristics) like the circumstances of the accident, traffic, weather/mechanical conditions, etc
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Endorses the situational objective test (but doesn’t go as far as Lamer would in Tutton)
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Explicit words of the provision endorse the modified objective test: “what a reasonable person would observe in the accused’s situation, in all the circumstances”
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Corey test for penal negligence is whether the accused’s conduct “IN ALL THE CIRCUMSTANCES” was a “marked departure from the standard of care that a reasonable person would observe in the accused’s situation.” (not subjective)
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The modified objective test (situational objective test)
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Can look at their situation, but not necessarily their personal factors.
Creighton 1993 SCC
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Creighton is an experienced drug user, he was administering heroin to the person who ultimately died.
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He did not contact authorities when partner stopped breathing, charged with manslaughter
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Issue was the level of fault requirement: is the mens rea for manslaughter subjective or objective? Is the objective standard unconstitutional?
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Who is the reasonable person? An experienced drug user who understood the consequences of administering heroin like he did? Or a reasonable Bob Howell?
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Minority (Lamer):
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Identifies special stigma offences that always require subjective mens rea
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Constitutional requirement is that the morally blameless not be punished
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Difference between murder/manslaughter is INTENT
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Constitutionally required fault element is objective
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Supports a modified objective test (must be flexible, adjusted to consider the capabilities and the “human frailties” of the accused e.g. age, literacy)
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But still not a subjective test, though
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Human frailties: NOT intoxication/drug impairment – very circumstantial (e.g. illiteracy only applicable if they couldn’t read a relevant label) – something the accused couldn’t control/manage in the circumstances
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HERE: reasonable person in the circumstances, with Creighton’s drug experience, would have been aware of the risk of death. Conviction.
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Held, Majority (McLachlin): there is only one standard of reasonableness for fault level offences, whether it’s criminal or penal negligence.
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And NO INDIVIDUAL FACTORS of the accused should be taken into account in determining the appropriate standard of care.
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Specifically indicates that factors such as age, inexperience, lack of education are not to be taken into account when determining the appropriate objective standard of the reasonable person.
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MR requirement for manslaughter: only objective foresight of bodily harm that is neither trivial nor transient in the context of a dangerous act. Foreseeability of death NOT required.
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Manslaughter: Conduct causing death of another person, short of intent to kill (e.g. committing another unlawful act which then causes death, or in criminal negligence)
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Old test, has stood the test of time
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Stigma attached to manslaughter is appropriate (less than murder)
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Objective foresight of death (per Lamer) would require abandoning thin-skull rule, which is wrong. This is a good principle.
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Rule of symmetry: is just a rule, not a PFJ, and has exceptions. Thus death need not be objectively foreseeable – only bodily injury
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Deterrence (penal consequences even if only bodily injury was foreseeable)
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Nature of the test: Rejects Lamer’s “modified objective” standard (personalizes it too much, basically makes it subjective)
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Hundal tells us it is NOT unconstitutional to use the objective test for criminal liability. So how personalized can this test become?
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Single, uniform standard of care should be used (not considering factors that Lamer suggested above) – only exception is incapacity. Otherwise, changes the standard too much (e.g. Naglig, inexperience/uneducated mom, failure to provide necessaries of life – would be held to lower standard, or Gossett – cop, gun, would be held to a higher standard)
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Still, the objective test isn’t in a vacuum: “What would a reasonably prudent person have done in all the circumstances”?
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Conclusion: Here is the analytic framework for penal negligence:
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1. Was the actus reus established (i.e. marked departure from the standard of a reasonable person, in all the circumstances)?
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2. Was the mens rea established (i.e. standard of a reasonable person in the circumstances of the accused)?
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3. If both made out, then capacity is considered (i.e. did accused lack the capacity to appreciate the risk)?
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HERE: The reasonable person, in all the circumstances, would have foreseen the risk of bodily harm. Thus conviction is restored.
Beatty 2008 SCC
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Majority agreed with Creighton, the modified objective test is appropriate, personal attributes not relevant
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Must separate civil negligence from penal negligence (which punishes blameworthy conduct, not just conduct that departs from the norm)
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Modified objective test is appropriate for negligence-based criminal offences (requires “marked departure” from norm, and considers actual mental state to a degree)
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Ambiguities of this test from Hundal were later clarified in Creighton: test isn’t personalized (e.g. age, experience and education not relevant) but is properly contextualized (looks at a reasonable person in the circumstances of the accused)
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Restates test from Hundal:
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Actus reus: Accused must have been “driving in a manner that was dangerous to the public, having regard to all the circumstances”
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Mens rea: Conduct must have been a marked departure from the standard that a reasonable person would observe in the accused’s circumstances (modified objective test)
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HELD: Momentary lapse insufficient to found criminal liability.
LAYER ON TOP Roy 2012
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Court applied Beatty to another dangerous driving causing death
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2 questions
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1) in light of all the relevant evidence, would a reasonable person have foreseen the risks and taken steps to avoid the risk if possible?
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2) was the accused’s failure to foresee the risk and take steps to avoid it a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances?
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Courts are restrictive and narrow on the view that the factors can affect a reasonable person
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Take a narrower approach to the reasonable person on the liability side
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But in defences they are more generous
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Eg. When considering the reasonableness of an individual’s response to imminent bodily harm reasonable person may be given characteristics of a battered woman
Issues in application occur:
R v Naglik 1993: an inexperienced uneducated young person can be acquitted because of a lowered standard….
R v Gosset 1993: a police officer held to a higher standard
C. If it is not in the code it is a regulatory offence -
Where Parliament does not specify the fault level for a regulatory offence, presumption is that it is strict liability: crown proves actus reus beyond a reasonable doubt, defence is due diligence on a balance of probabilities (Wholesale Travel)
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If it is absolute liability: there is no mens rea required, and it is not open for the accused to exculpate himself by showing there was no fault (Sault St Marie)
Strict Liability Offences
Sault St Marie 1978 SCC recognizes regulatory offences
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Public welfare: must be maintained through enforcement, but must be balanced with punishing the morally innocent
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City charged with dumping in a creek so that it might impair the water quality
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Held: created the presumption that: all public welfare or regulatory offences would require the prosecution to prove the prohibited act, but would then allow the accused to prove a defence of due diligence or a reasonable mistake of fact on a balance of probabilities
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conviction for breach of a regulatory offence suggests nothing more than the defendant failed to meet a prescribed standard of care.
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Criminal acts conduct that is abhorrent to society, emphasis on the protection of individual interests.
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Regulatory offences conduct that is prohibited because unregulated activity would result in dangerous conditions being imposed on members of society (prevention of future harm). Regulatory measures are the primary mechanisms employed by gov’ts in Canada to implement public policy objectives.
R v Wholesale Travel Group Inc 1991 SCC
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Corporation was charged with counts of false or misleading advertisements contrary to the Competition Act. These acts could be punished with up to 1 year imprisonment.
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Had it not contained imprisonment, it is constitutional to create an offence for which the mental element is negligence (strict liability)
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This was not a breach of charter s.7 to create a regulatory offence for which mens rea requirement is civil negligence
Absolute Liability Offences -
No fault requirement
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Presumption of strict liability is rebutted when parliament makes it clear that absolute liability was intended
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Some acts of misconduct are so minor that parliament can convict on proof of actus reus alone eg. Parking
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If the absolute liability offence carries a penalty that involves imprisonment, then the offence will violate s.7 of Charter
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It is unjust to punish the morally innocent with imprisonment
D. What are the constitutional requirements for mens rea?
TRUE CRIMES CANNOT DIP BELOW LINE OF PENAL NEGLIGENCE
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The civil negligence standard (only a defence if the accused can prove due diligence to a standard of balance of probabilities) can apply only to strict liability regulatory offences (Sault St Marie)
Space between true crime and penal negligence…
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Rule of symmetry there must be symmetry between all of the acts and the mental element (Creighton), note this is not a principle of fundamental justice
Exception to the rule of symmetry: predicate offences -
De Sousa: s.268, unlawfully causing bodily harm: “there must be an element of personal fault in regard to a culpable aspect of the actus reus, but not necessarily in regard to each and every element of the actus reus”
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Mens rea only needs to be proved for the underlying offence, which is the unlawful act. Bodily harm is the aggravating circumstances very broad
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OBJECTIVE FORESEEABILITY OF THE RISK OF BODILY HARM
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Satisfies s.7 of the Charter
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Creighton: general rule still applies – mens rea must apply to all elements of the offence, however because symmetry is not a principle of fundamental justice…
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The MR requirement is required for the underlying offence and ONLY an objective foreseeability of non-trivial harm is required for the aggravating consequences.
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McLaughlin says general rule must be that the mens rea applies to each element, and this should include the harm, but will accept that there are exceptions.
Creighton: offences where a substituted element for proof of foreseeability is constitutional where the essence of the offence is conduct that is inherently risky – these offences are presumed to involve objective foresight of risk rather than subjective -
Impaired driving causing bodily harm s.255(2)
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Impaired driving causing death s. 255(3)
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Dangerous driving operation causing bodily harm s.249(3)
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Dangerous operation causing death s.249(3) – Hundal
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Careless storage of firearm s.86(2) – Finlay, Gossette
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Willfully setting fire to objects s.434(a)
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Aggravated assault Godin
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Manslaughter Creighton
Stigma Offences Require Subjective Fault
There are some offences, which because of the severity of the offence, the stigma/penalty, the courts say that the code requires subjective fault
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Struck down parts of the code that permits objective fault for certain offences
So far: murder, attempted murder, theft, crimes against humanity/war crimes stigma offences which constitutionally require subjective mens rea -
Villaincourt 1987 SCC
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Accused and accomplice in pool hall robbery
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Accused had a knife and thought that his friend also had a knife when in fact his friend had a gun.
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He explicitly told his friend before the event that he did not want to have guns involved. During the robbery, his partner fired a shot and someone was killed. The charge falls under s.213 (now s.230 – culpable homicide is murder when committing a robbery etc) which negates any necessity for mens rea of killing to be proven before a conviction can be entered. The defendant is challenging this section, stating that it is contrary to ss.7 & 11 of the Charter.
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Could he be convicted with objective mens rea, or less than subjective?
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NO
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Murder stigma is severe, must be special mental element, anything less than proof beyond a reasonable doubt of SUBJECTIVE INTENT will run afoul of the Charter
S.230 is now unconstitutional -
Confirmed in Martineau
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Martineau 1990 SCC
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Accused and friend are armed, he knew they were going to commit a crime (B&E), he shot and killed occupants of trailer
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Court there must be subjective fault in connection to the special stigma offence of murder in order to be Charter-compliant
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Cannot be convicted of murder if you did not intend or foresee death
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Ran through the Oakes test
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Finta 1994 SCC
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He was a senior officer at a concentration camp in Hungary. Charged with crimes against humanity.
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Held: this is a stigma offence that requires subjective knowledge of the factual considerations which render the actions a crime against humanity. However, it is not necessary to establish that the accused knew that his or her actions were inhumane.
any part of the CC which allows for conviction for murder with anything less than subjective mens rea is UNCONSTITUTIONAL and should be struck out -
STAY ALERT FOR THIS
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Fact pattern may include prosecutions for unconstitutional part of Code
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S.230 of CC – unconstitutional bits are still there
LOSS OF LIBERTY CANNOT BE AT ISSUE IF THERE IS ABSOLUTE LIABILITY
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It is constitutionally impermissible for an offence to carry the potential for imprisonment without some minimum level of mens rea or fault. This would allow for the punishment of the morally innocent violation of s.7 (BC Motor Vehicle)
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Absolute liability does not violate s.7 per se, because the public interest is a justifiable limit
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A s.7 case is possible ANYTIME there is a possibility of the deprivation of liberty without a minimum of objective fault (Pontes)
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Policy considerations (Sault St Marie)
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People will not take precautionary measures if it does not result in a defence
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If due care is exercised, then there is no deterrent value, could lead to cynicism
Absolute and Strict Liability
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Beaver
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Pierce Fisheries Ltd.
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