Constitutional Limits on Criminal Law 1
Download 197.6 Kb.
|
- Navigate this page:
- The CC contains 5 categories of objective fault offences: ( ADH )
- Absolute and Strict Liability
- Interpretation: What type of mans rea does this offence require
- Constitutionality: Is the reduced mans rea requirement imposed constitutional
Objective States of MindHistoryThe SCC only recognized the possibility of a criminal offense based on an objective fault requirement in the 1993 case, Hundal. Before Hundal, to the frustration of lower courts (Gingrich and McLean) the SCC repeatedly split (Tutton & Tutton, R v Waite): certain judges were prepared to recognize an objective fault requirement, others were not. Rationale? True crimes are presumed to require a subjective fault element. This presumption reflects the principle that the morally innocent should not be punished (ADH) To determine whether this presumption is rebutted, engage in legislative interpretation (ADH) The CC contains 5 categories of objective fault offences: (ADH)(1) Dangerous conduct offences. E.g.. dangerous driving causing death (CC 249(4); Hundal; R v Beatty; R v Roy) Actus reus: driving in a manner dangerous to the public, having regard to all of the circumstances (road conditions, place, traffic, etc.) (Beatty, Roy) Requires a meaningful inquiry into the manner of driving. Insufficient that driving caused damage. Driving is risky. The occurrence of damage does not indicate that the manner of driving was necessarily dangerous. Mens rea: a marked departure from the standard of care that a reasonable driver would have observed. (Beatty, Roy) Personal characteristics and state of mind are irrelevant, unless they show that a reasonable person in the same circumstances would not or could not have behaved differently. Thus, incapacity and mistake of fact defenses may succeed. Why? A marked departure is required because simple carelessness is not morally blameworthy. This is a “modified objective test” it differs from the objective test for civil liability. Civil liability is concerned with the apportionment of loss. Criminal liability is concerned with the punishment of blameworthy conduct. (Beatty, Roy) The modified objective test requires a marked departure from the reasonable person standard because anything less – e.g. simple carelessness – is not morally blameworthy, and it is a principle of fundamental justice that the morally blameworthy not be punished (s7)
(2) Careless conduct offences (Finlay), e.g. CC 86 [careless storage of firearms]. (ADH) Key term: “in a careless manner”, “reasonable precautions” (3) Offences requiring the commission of an underlying unlawful act (e.g. unlawful act manslaughter, unlawfully causing bodily harm), along with the mental requirement for the underlying unlawful act, plus objective foreseeability of harm flowing from the unlawful act e.g. unlawful act manslaughter (CC 222(5)(a) with CC 236, CC 234; DeSousa, Creighton) The mens rea for manslaughter is objective foreseeability of bodily harm that is neither trivial nor transitory (Creighton) “the implicit rationale of the law in this area is that it is acceptable to distinguish b/t criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused” (Creighton) Come back to this.
Key term: “negligence” criminal negligence requires a marked and substantial departure from the conduct of a reasonably prudent person in circumstances in which the accused either recognized and ran an obvious and serious risk or, alternatively, gave no thought to that risk (R v JF) Tutton v Tutton was criminal negligence, so was R v Brown. I don’t think this is going to come up though! (5) Duty based offences based around CC 215 (ADH). Absolute and Strict LiabilityDefinitions
Interpretation: What type of mans rea does this offence require?True crimes are presumed to include a mans rea requirement (Beaver) Absent the Charter, with clear language, Parliament may (thanks to Parliamentary sovereignty) impose strict or absolute liability for true crimes (Beaver). The Charter restricts this ability (). Regulatory offences are interpreted free of any presumption that mans rea is required (Pierce Fisheries). By default, liability for regulatory offences is strict (Sault Ste. Marie). Parliament may impose a mans rea requirement for regulatory offences. If a provincial legislature government attempts to do so however, it may be encroaching on the Federal Government’s criminal law power (Salut Ste Marie).
Constitutionality: Is the reduced mans rea requirement imposed constitutional?Is liability absolute, or is less than the due diligence defense available? Absolute liability offends the principle of fundamental justice that the innocent not be punished (BC Motor Vehicle). Thus, an absolute liability offence infringes s7 where its penalty implicates a life, liberty, or security of the person interest (BC Motor Vehicle). In order to comply with the principles of fundamental justice, at least a full due diligence offence must be available. Thus, an offence for which the due diligence is unavailable infringes s7 where its penalty implicates a life, liberty, or security of the person interest (BC Motor Vehicle as interpreted by Wholesale Travel). Conversely: an offense with the mental element of negligence does not generally infringe s7, if the full defense of due diligence is available. (Wholesale Travel) Exception: For certain offenses, the degree of stigma attaching to a conviction and/or the severity of the available punishment is such that subjective mans rea is constitutionally required by s7 (Vallancourt, cited in Wholesle Travel) – this is an intricacy that is escaping me to a degree.
Imprisonment implicates a liberty interest under s7 (BC Motor Vehicle) Serious state-imposed psychological stress, for example via the stigma associated with a criminal conviction, may implicate a security of the person interest under s7. However, courts have been reluctant to recognize this under particular circumstances (Transport Robert)
If an accused bears the burden of disproving on the balance of probabilities, any essential element of an offence, a conviction may occur in spite of a reasonable doubt. This infringes s 11(d), which requires that the accused is presumed innocent until the crown proves the accused’s guilt beyond a reasonable doubt (Oakes) Thus, strict liability offences infringe 11(d) (Wholesale Travel, except Cory+1, who said no infringement). Strict liability offences may, however, be justifiable under s 1 (Wholesale Travel, per Iacobucci +2) 11(d) does not prevent Parliament from defining an offence so as to eliminate an element or common law defense. Thus, absolute liability offences do not infringe 11(d) (Transport Robert). ???
Liability is absolute Does not infringe 11(d) (Transport Robert) Infringes s7 if life, liberty, security if the person interest is implicated (BC Motor Vehicle) Does not infringe s7 if no such interest is implicated (Transport Robert) Liability is more than strict (full due diligence defense not available) 11(d) – unclear Infringes s7 if life, liberty, security if the person interest is implicated (BC Motor Vehicle, as interpreted by Wholesale Travel) Does not infringe s7 if no such interest is implicated Liability is strict (full due diligence defense available) Infringes 11(d) (Wholesale Travel, except Cory+1, who said no infringement), but this may be justifiable under s 1 (Wholesale Travel, per Iacobucci +2) Does not infringe s7, even if life, liberty, security if the person interest is implicated (), unless the degree of stigma attaching to a conviction and/or the severity of the available punishment is such that subjective mans rea is constitutionally required by s7 (Vallancourt, cited in Wholesale Travel) – this is an intricacy that is escaping me to a degree. Mans Rea liability
Directory: pubdocs -> files files -> International maritime conventions files -> Chapter 1: Property as rights, not thing files -> Insurance Law – May 4 files -> Contractual Obligations – Prof. Helge Dedek Introduction 1 files -> Antonio Iacovelli Winter 2005 Advanced Criminal Law files -> Private International Law – Prof. Walsh Summer 2005 files -> Part I: conceptualizing and justifying ip space 3 files -> Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law? files -> Topic One Seaworthiness and Common Venture, chapter 15 Download 197.6 Kb. Share with your friends:
| |||||||||