In general, only positive actions are criminalized. But there are exceptions:
-
When the Criminal Code specifically criminalizes an omission (eg. Failing to stay at the scene of an accident)
-
Situations where the law places a duty to act (eg. Criminal negligence causing bodily harm)
-
Duties can be imposed by statute and by common law
R v. FAGAN [1968] UK CA
FACTS
|
Fagan was pulled over, accidentally parked on police officer's foot. Police asks him to move, Fagan says, "Fuck you, you can wait." Car was off, and officer repeated his request. Fagan slowly reversed the car off the officer's foot. Fagan was convicted of assault and appealed, arguing there was reasonable doubt that the act of driving the car onto the foot was intentional and not accidental.
|
RULING
|
The court found for the Crown and dismissed the appeal. The Court argued that the actus reus was not merely the possibly accidental act of driving the car onto a foot, but the entire act of driving the car, leaving it on the foot, turning the car off, etc. As such, the mens rea was crystallized in the moment that Fagan refused to move the car and assault did take place.
|
RATIO
| -
Mens rea and actus reus must occur at the same time.
-
An omission on its own cannot constitute assault. An omission can constitute assault if that omission can be tied to a sequence of positive actions.
|
DISSENT
No mere omission to act can amount to an assault… But at every attempt I have encountered the inescapable question: after the wheel of the appellant's car had accidentally come to rest on the constable's foot, what was it that the appellant did which constituted the act of assault? However the question is approached, the answer I feel obliged to give is: precisely nothing. The car rested on the foot by its own weight and, remained stationary by its own inertia. The appellant’s fault was that he omitted to manipulate the controls to set it in motion again.
R v. MOORE [1978] SCC
FACTS
|
Moore ran a red light on his bicycle. A police officer tells him to identify himself and pull over, but Moore refuses. Moore is charged with obstructing a peace officer, not with failing to stop at a red light, because of his failure to provide his name.
|
RULING
|
Court finds for the Crown and dismisses the appeal. There is no statutory duty that applies to Moore in these circumstances, but the Court finds a common law duty to identify yourself as a correlate of the police officer's statutory duty to request identification in certain circumstances.
|
RATIO
|
Statutory duties to act can impose reciprocal common law duties (probably not anymore).
|
DISSENT
"Explicit statutory provisions may impose a duty upon a person to identify himself to police officers in certain situations, but in this appeal the Court is being asked to impose such a duty in the absence of any statutory underpinning whatever...The criminal law is no place within which to introduce implied duties, unknown to statute and common law, breach of which subjects a person to arrest and imprisonment."
If case were decided today, dissent would likely have been majority because of the Charter right not to self-incriminate.
In other words, probably not good law.
R v. THORNTON [1991] Ontario CA
FACTS
|
Thornton, knowing he had tested positive twice for HIV antibodies, donated blood to the Canadian Red Cross without disclosing this to them. He was tried and convicted of a violation of s.180 (Public nuisance endangering the health of the public) of the Criminal Code. He appealed.
|
RULING
|
Court dismissed Thornton's appeal. Court finds that it was not an unlawful act because there is no statutory provision criminalizing the donation of contaminated blood. Court then considers whether there was a legal duty to act, and cannot find a legal duty in statute either. Then Court looks for legal duty at common law and finds "a broad fundamental duty which, although subject to many qualifications, requires everyone to refrain from conduct which could injure another. It is not necessary to decide in this case how far that duty extends. At the very least, however, it requires everyone to refrain from conduct which it is reasonably foreseeable could cause serious harm to other persons."
|
RATIO
|
There is a common law legal duty to refrain from actions which are reasonably foreseeable to cause injury to those around you.
SCC heard this appeal, and found legal duty not in common law but in s. 216 of Criminal Code (reasonable care in administering medical treatment) instead because they are not comfortable with common law basis for legal duty entailing criminal liability.
|
Share with your friends: |
