FACTS: Appellant struck and killed a driver while driving a dump truck through an intersection. The dump truck was significantly overweight, and witnesses reported that the appellant ran a red light; appellant claims the light was yellow and he warned that he had to make the turn.
PROCEDURAL HISTORY: At trial, appellant found guilty based on eyewitness accounts. Appeal dismissed, but dissent would have ordered a new trial based on lack of proof for subjective mens rea.
ISSUES: What is the mens rea for the offence of dangerous driving, s. 233 of the Code?
REASONS: Since imprisonment is a possible punishment for a breach of s. 233, fault must be demonstrated for the charge to be upheld. This requirement can be established through proof of state of mind (intent, recklessness, wilful blindness - wholly subjective test) or through failing to meet an objective standard for conduct (reasonable person standard). Objective standards can be relaxed based on some personal factors/defences. The circumstances surrounding driving make an objective test appropriate: drivers have to be licensed, which provides fixed standards of knowledge; driving is not always a fully-conscious activity; the language of the Code implies an objective standard ("manner of driving"); and driving is a dangerous activity that must be regulated for public safety. Negligent driving exists on a continuum, with criminal liability affixed to the high end. The objective test must be "modified" to apply to the circumstances of the case; the modification does not make the test a subjective one, but tailors what would be reasonable in the circumstances. The accused can raise reasonable doubts about whether a reasonable person would have been aware of the risks present in the conduct, due to human frailty; if, for example, the driver had a heart attack or a seizure, no responsibility would necessarily be found despite the driving being objectively negligent. To find liability, the trier of fact must be satisfied that a reasonable person should have been aware of the risk and danger posed by the conduct under the circumstances (including those circumstances which limit the accused's ability to control their conduct).
RATIO: Liability for dangerous driving is determined using a modified objective test, which looks at whether the accused's conduct was a marked departure from the standard of care expected of a reasonable driver under the circumstances (including circumstances that could mitigate responsibility).
COMMENTS: La Forest J. distinguishes dangerous driving from criminal negligence generally, which he holds to require subjective mens rea. McLachlin J. emphasizes that the modified objective test requires that objectively unreasonable conduct is sufficient to establish fault in circumstances like this, and that subjective defences are not sufficient (what a reasonable person would have believed, not what you believed). McLachlin also suggests that the cases of medical emergencies cut the charge off at the level of actus reus, not mens rea.
R v Beatty 2008 SCC 5
Facts: Beatty, while driving, suddenly veered across a highway into the path of another vehicle going the other way.
The standards for penal and civil negligence should not be confused – they serve different purposes. Penal negligence is meant to punish blameworthy conduct. It’s not merely a consideration in the sentencing.
Beatty’s conduct fell below the standard of care expected of drivers. Driving is a licensed activity – a certain standard can be expected and inferred from the licensing requirements. Falling short of those requirements can be considered morally blameworthy – there’s a standard, the activity was voluntarily undertaken, and they failed to meet the standard of care.
The modified objective test from Hundal still applies for determining mens rea – a “marked departure” from the civil standard of care. If there is evidence to suggest that there would be a reasonable doubt that a reasonable person would have been aware of the risks arising from the conduct, the test fails and no liability exists. It would violate principles of fundamental justice to punish someone who could not have appreciated the risk or foreseen the danger.
For the test, factors like age and education are irrelevant. But the circumstances have to be modified – sudden medical conditions, etc.
The actus reus for penal negligence is defined by the language of the offence. Not all dangerous driving will fall short of the standard about the “manner” of the driving.
You cannot make an inference about mens rea based on the consequences of the act – the question is whether it fell markedly short of the standard required.
Evidence about the accused’s intention is relevant to the assessment of whether their conduct fell markedly short of the standard required (what a reasonable person would’ve perceived in the circumstances).
There was no deliberate intention to cause the accident, so the issue is whether Beatty’s manner of driving fell markedly short of the standard of care required. It didn’t, it was momentary and a reasonable person couldn’t have avoided it under the circumstanes.
R v DeSousa [1992] 2 SCR 944
FACTS: Bystander to a fight was injured when the appellant threw a glass bottle at the wall; her arm was gashed by a shard of the bottle, requiring stitches. No trial has occurred yet, and the case is a constitutional challenge to s. 269 of the Criminal Code.
ISSUES: What is the mental element required for a charge under s. 269, and does it violate the Charter?
REASONS: To impose liability under s. 269, an accused must have committed a predicate offence (an initial unlawful act of some sort) that led to causally-relevant bodily harm. There can be no criminal responsibility without fault, but s. 269 requires that fault be established for the predicate offence (including subjective mens rea - no absolute liability offences). Statutes should not be constructed to lack personal fault (impose absolute liability) unless they are explicit. The relevant test for s. 269 is an objective one, where the bodily harm caused by the unlawful act must be objectively foreseeable - would a reasonable person "realize that the underlying unlawful act would subject another person to the risk of bodily harm"?
RATIO: For s. 269 of the Code, liability is established where the resultant bodily harm (which is more than merely transient or trivial) was the objectively foreseeable outcome of an unlawful act.
REGULATORY OFFENCES
To punish people under criminal law, they must be blameworthy – actus reus and some form of fault must be proven.
Actus reus: there must be an act or omission that is prohibited by law.
Fault: this can be subjective (most offences) or objective (penal negligence)
Subjective – this is mens rea, intentionally bringing about the act prohibited by law
Objective – whether the accused’s actions fell short of the standard of a reasonable person in the circumstances.
For objective fault, there has to be some duty imposed by law that the accused did not meet, and the accused must have brought about the prohibited act or omission.
Subjectivist orthodoxy: criminal offences require a mental element (intentionality or recklessness or wilful blindness); negligence is not sufficient to ground criminal liability.
This ran up against the creation of absolute liability offences to regulate economic and industrial activity. Absolute liability denies a fault element to the crime – the existence of the prohibited act is sufficient to ground punishment.
In response to this, strict liability offences were created by reading objective fault requirements into absolute liability offences.
It is a violation of principles of fundamental justice to deprive someone of life, liberty, or security of the person without proof of a fault element (breach of s. 7 of the Charter).
