Mr review 6 ignorance of law 6

R v Creighton SCC p 457 [For Manslaughter, Mental element in relation to foreseeability of the consequence (Death) must be established]

1. 
   Issue: What needs to be foreseen in order to convict for manslaughter?
   
2. 
   What is the proper standard of measurement for objective liability?
   

Reasons:

• 
  Must be some special mental element with respect to death which gives rise to moral blameworthiness which justifies stigma + sentence of murder conviction
  
• 
  Does the special stigma attached to conviction make principles of fundamental justice require MR?
  
  • 
    Stigma is significant BUT does not approach that of those who “knowingly” or “intentionally take life of another”
    
• 
  Constitutionally required fault element of MR?
  
  • 
    DeSousa: constitutional sufficiency of offence of unlawfully causing bodily harm = fault requirement based on objective foreseeability of bodily harm, coupled with fault requirement of predicate unlawful act = satisfies charter
    
• 
  General requirement that MR must relate to AR, MR formed in two ways
  

1. 
   “Pith and Substance” of an offence is the consequence of the act (death) and fault must be established beyond a reasonable doubt in regards to the consequence (death)
   
2. 
   When consequence forms part of AR, but where essence of offence is conduct which is inherently risky to life/limb, such offences are presumed to involve objective foresight of risk
   
   • 
     Ie. Proof of the accused having engaged in prohibited conduct where reasonable person would have foreseen risk involved will serve as substitute evidence to prove existence of such foresight.
     
• 
  For manslaughter: must require, at minimum, objective foresight of the risk of death in order to comply with s 7 of charter.
  

• 
  Accused can only be held to standards of reasonable person if accused capable of attaining that standard
  
• 
  If the accused had enhanced foresight, the reasonable person will be invested with enhanced foresight
  
  • 
    Ie. Gosset: police officer’s experience with gun handling relevant to standard of care concerning careless use of firearms.
    
  • 
    In case at hand: Reasonable person should be deemed to possess accused’s considerable experience in drug use
    
  • 
    Note: Not a subjective test! If a reasonable person with the frailties of the accused would nevertheless have appreciated the risk, and the accused did not in fact appreciate the risk, the accused must be convicted
    
• 
  Rationale of incorporating capacity into objective determination = analogous to rationale underlying defence of mistake of fact in crim law.
  
  • 
    Human Frailties: not intoxication, or voluntary drug use, emergency that divert’s one’s attention is not
    
    • 
      Personal characteristics habitually affecting an accused’s awareness of the circumstances which create risk ie. Illiteracy may be relevant to crime that required reading, not to firearm etc. Reasonable person excepted to compensate for frailties as best they can
      

• 
  Whether reasonable individual in the circumstances of the offence and with Mr. C’s experience in drug use would have been aware of the risk of death arising from the injection of the deceased with cocaine.
  
• 
  He measured his own cocaine and measured hers. He knew that he was giving her a very dangerous, lawfully prohibited narcotic, capable of causing death or serious bodily harm
  
• 
  = Guilty verdict.
  

• 
  Disagrees with CJ that common law offence of manslaughter is unconstitutional bc it does not require foreseeability of death.
  
• 
  Disagrees with CJ that standard of care on objective test varies with degrees of experience, education and other personal characteristics of the accused. Should not hold accused to higher standard bc of his experience.
  

• 
  Requires conduct causing the death of another person; and Fault short of intention to kill (fault = unlawful act that results in death, or criminal negligence)
  
• 
  Test is Objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act. Foreseeability of risk of death not required.
  
  • 
    Is this constitutional?
    
    • 
      Stigma is unconvincing reason to require foreseeability of risk of death in Manslaughter
      
    • 
      Stigma attached to manslaughter is appropriate stigma (WTF!)
      
    • 
      Crim law traditionally aimed at symmetry
      
    • 
      Distinction btw appreciation of risk of bodily harm and risk of death in context of manslaughter
      
      • 
        Risk of bodily harm is combined with established rule that wrongdoer must take his victim as he finds him, and fact that death did occur = distinction disappears.
        
      • 
        To convict accused of assault causing bodily harm – when it causes death – deletes thing skull rule (as outlined in Smithers: requires aggressors to take responsibility for actions – even to death
        
    • 
      Exception to symmetry is necessary. The constitution does not always guarantee the “ideal” ie. Symmetry nice in theory, but not possible.
      
    • 
      MR of manslaughter requires foreseeable risk of harm, not of death.
      
• 
  Nature of Objective test establishing foresight of bodily harm:
  
  • 
    Should not personalize test like CJ did
    
  • 
    Objective MR not concerned with what accused intended or knew. Mental fault lies in failure to direct mind to a risk which reasonable person would have appreciated.
    
  • 
    Negligence must constitute marked departure from standard of reasonable person (Hundal)
    
  • 
    Should be assessed objectively in context of all events surrounding incident – does not include personal mental or psychological frailties of accused.
    
• 
  Debate whether personal characteristics should be involved in objective test:
  
  • 
    1. Criminal law may properly hold people who engage in risky activities to a minimum standard of care, judged by what a reasonable person in all circumstances would have done  uniform standard regardless of background, education or disposition
    
  • 
    2. Morally innocent should not be punished  Accused must have a guilty mind
    
    • 
      Agrees that person should not be punished if he/she is not capable of appreciated the risk = Should be only exception
      
  • 
    In negligence – since actual knowledge is not a factor, neither is personal characteristics  only relevant to establish incapacity
    
• 
  MR question arises where it has been shown the accused’s conduct (AR) constitutes dangerous and unlawful act (as in manslaughter), OR a marked departure from the standard of care of a reasonably prudent person (manslaughter by criminal negligence).
  
• 
  Guilt not determined in factual vacuum. Legal duty of accused particularized by nature of the activity and the circumstances surrounding accused’s failure to take requisite care
  
• 
  Analysis
  
  • 
    1) Whether AR established? (negligence constitutes marked departure from standards of reasonable persons in circumstances) ie. Carrying out activity in dangerous fashion, or when circumstances make it dangerous
    
  • 
    2) Whether MR is established? Objective foresight of risking harm is inferred from facts. Would a reasonable person in the circumstances have foreseen risk of harm?
    
    • 
      Negated by reasonable doubt as to lack of capacity to appreciate risk
      

S 222 5(a) = important crime to consider

• 
  They heighten the chance than an ordinary, law-abiding Canadian will one day be prosecuted for committing a crime.
  
• 
  RISK: with objective liability some people are going to go to jail. McLaughlin would say, sort it out in sentencing. Not a single objective liability crime with a mandatory minimum penalty.
  

• 
  The more the reasonable person looks like the accused, the more the jury is likely to apply a subjective standard
  

Note: Another example of asymmetrical crime = aggravated assault:

AR =proof of maiming, wounding, endangering life.

MR = Bodily harm

• 
  Joe is most likely guilty of criminal negligence.
  

• 
  Joe is going to be guilty on McLachlin J’s Test, not Lamar J’s test (who included age, experience and education)
  

• 
  A strict liability offence where person acts in a way that is a marked departure from the norm
  
• 
  McLaughlin Says: Contravention of provincial acts that is a marked departure.
  
• 
  In an offence based on unlawful conduct, a predicate offence involving carelessness or negligence must also be read as requiring a “marked departure” from the standard of the reasonable person. As pointed out in DeSousa, the underlying offence must be constitutionally sound.
  

Creighton and Beatty’s “Bottom Line” for Criminal Liability

• 
  Absolute liability can never ground criminal liability
  
• 
  “The law does not lightly brand a person as a criminal”
  
• 
  Negligent or careless acts must constitute a marked departure from the norm
  
• 
  Regulatory offences can ground criminal liability, but only where they are “Read up” to include a marked departure standard
  
• 
  The Charter sets the bare minimum  requires a marked departure standard.
  

Unlawful Act Manslaughter

• 
  1) an unlawful act with all AR + MR of that crime of offence satisfied;
  
• 
  2) act must have MINIMUM standard of marked departure from norm applied (note: if offence requires subjective MR, does not use marked departure standard. Only imported where no subjective MR required)
  
• 
  3) Act must be OBJECTIVELY DANGEROUS! (ie. Act of parking car with a marked departure, is not objectively dangerous.)
  
• 
  4) In the circumstances, bodily harm to another person must be reasonably foreseeable
  

Creighton and Symmetry **not that important, worth knowing, 99% of time MR will match AR

• 
  Generally MR should match AR (McLaughlin agrees with Lamer)
  
• 
  But not always where consequences are concerned (ie. Manslaughter, aggravated assault)
  
• 
  Policy advantages (ppl should take care where they undertake unlawful act) refute presumption of symmetry
  
• 
  Foresight of death is not constitutionally required.
  

The MR of Negligence: Review

• 
  McIntyre in Tutton: It is the conduct of the accused, as opposed to intention, which is examined”
  
• 
  McLaughlin in Creighton: There is an MR element.
  
• 
  “The failure to direct the mind to a risk…What should have been there!”
  

Why was the court focusing on MR?

• 
  Discussion of negligence crimes occurred at same time Court was deciding upon constitutionality of MR
  
• 
  BC Motor Vehicle – “there can be no criminal liability without fault”
  
• 
  Martineau: the Stigma of crime requires mental fault
  
• 
  Sankoff: Courts became pressured in language of fault, and requirement of MR for every crime
  

Key Points in Beatty

Issue: Is he guilty? No.

Primary Reason: A momentary lapse of attention is not a marked departure.

Dangerous driving is a crime of objective MR.

• 
  As such, The accused’s subjective state of mind can ground liability.
  
• 
  If he/she was aware of risks, criminal negligence is present.
  
• 
  Actual state of mind of the accused is not irrelevant.
  
• 
  The subjective MR of intentionally creating a danger for other users of the highway within the meaning of s 249 constitutes a “marked departure from the standard expected of a reasonably prudent driver…”
  

Court worried that jury will focus on consequence:

• 
  It is the manner in which the motor vehicle was operated that is an issue, not the consequence of driving.
  

R v Beatty SCC 2008 [Momentary Lapse of attention, without more, cannot establish AR of Dangerous Driving]

Facts: Pickup truck cross median line of highway, killed 3 ppl. Not intoxicated. A says he must of fell asleep/ lost consciousness for a moment.

Issue: Whether this momentary act of negligence was sufficient to constitute dangerous operation of motor vehicle causing death s 294(4)?

Decision: Allow appeal, restore acquittals

Reason: (Charon J)

• 
  Conduct which departs from norm = basis for both civil and penal negligence. Important not to conflate civil standard of negligence with penal negligence
  
  • 
    Civil = concerned with apportionment of loss
    
  • 
    Penal negligence = aimed at punishing blameworthy conduct, onus lies on crown to prove both AR and MR. Penal negligence acquires constitutional dimension w/ prison involvement.
    
    • 
      Penal negligence: Modified objective test:
      
      • 
        1) Must be marked departure from civil norm – not a mere departure = question of degree.
        
      • 
        2) Does not ignore actual mental state of the accused. Based on premise that “reasonable person in accused’s position would have been aware of the risks arising from the conduct”
        
        • 
          allowing for defences of incapacity and mistake of fact = avoid punishing innocent
          
        • 
          Personal attributes ie. Age, experience, education = not relevant (Creighton)
          
        • 
          Reasonable person put in circumstances of accused
          
• 
  AR: Trier of fact must be satisfied byd that accused, objectively, was driving in manner that was “dangerous to public, having regard to circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.”
  
• 
  MR: ToF must be satisfied byd that accused’s objectively dangerous conduct was accompanied by required MR. In objective assessment, ToF should be satisfied on the basis of all the evidence, including eveidence about accused’s actual state of mind, if any, that the conduct accounted to a marked departure from standard of care reasonable person would observe. Must take explanation of accused into account.
  
• 
  Application:
  
  • 
    AR: Driver’s failure to confine his vehicle to his own lane was in “all circumstances” highly dangerous to others lawfully using highway.
    
  • 
    MR: Whether A’s manner of driving, viewed on an objective basis, constitutes marked departure from norm
    
    • 
      A few seconds of clearly negligent driving
      
    • 
      TJ found that momentary lapse of attention insufficient to find criminal culpability. There was insufficient evidence to prove marked departure from standard of care of prudent driver.
      

McLachlin CJ (Binnie J and LeBell J Concurring)

• 
  Hundal and Creighteon identify that: “marked departure” applies to AR of offence and that MR of offence flows by inference of that finding, absent an excuse of incapacity
  
• 
  AR: requires marked departure from normal manner of driving
  
• 
  MR: generally inferred from marked departure in nature of driving. Based on finding of marked departure, it is inferred that accused lacked the requisite mental state of care of reasonable person.
  
  • 
    Note: evidence in an case may negate or cast doubt on this inference
    
• 
  Momentary Lapse of Attention:
  
  • 
    When he went past line. Is this capable of establishing AR and MR of offence?
    
  • 
    No – without more, cannot establish offence of dangerous driving.
    
  • 
    Heavy sanctions and stigma that follow from criminal offence should not be visited upon a person for a momentary lapse of attention.
    
    • 
      Does not equal marked departure required for AR
      
    • 
      Even good drivers are subject to momentary lapses of attention
      

Fish J: Anyone who commits AR with requisite MR is guilty of dangerous driving.

• 
  Fault element is not a marked departure, but the fact that a reasonably prudent driver in accused circumstances would have been aware of the risk of that conduct, and if he could, he would have averted.
  

• 
  MR can only be inferred from marked departure, not from mere fact that they operated car in dangerous manner. Allow Acquittal.
  

Ratio: Momentary Lapse of Attention, without more, cannot establish AR and MR of offence of dangerous driving. Essential to split up AR and MR and deal with them separately.

R v Roy 2012 SCC [Cannot infer MR of marked departure, on AR of objectively viewed dangerous driving alone]

History: Dangerous driving causing death: up to 14 yrs in prison. AR: Prohibited conduct  operating car in dangerous manner resulting in death and MR: marked departure from standard of care that a reasonable person would observe in all the circumstances. TJ: inferred from fact that A had committed a dangerous act while driving that his conduct displayed a marked departure from standard of care expected of reasonable person = error.

Facts: A pulled motor home from stop sign onto highway into path of oncoming tractor-trailer. Death of A’s passenger. Collision left A with no memory of circumstances or surrounding events.

Decision: allow appeal enter acquittal

Issue:

Reasons:

• 
  TJ made decision based on Hundal and BCCA Beatty, bc SCC Beatty not yet released
  
• 
  TJ concluded that A conduct, from stop sign onto highway, with visibility limited by fog, into path of oncoming traffic, specifically the tractor trailer = was objectively dangerous immediate conclusion that A’s driving constituted marked departure.
  
  • 
    Due to memory loss of A = no explanation
    
• 
  TJ did what Beatty was against. He inferred simply from fact of driving, objectively viewed, dangerous that A’s level of care was a marked departure
  
• 
  Beatty said:
  
  • 
    AR: ToF should not leap from consequence of driving to conclusion about dangerousness. Must be meaningful inquiry into manner of driving.
    
  • 
    MR: Whether the dangerous manner of driving was the result of a marked departure from the standard which a reasonable person would have exercised in the same circumstances.
    
• 
  Note: Driving which is simply dangerous will not on its own support the inference that accused departed markedly from standard of care of reasonable person in circumstances
  
• 
  TJ did not correctly apply the law. Cannot infer marked departure from AR of dangerous driving.
  

Key Points in Roy

• 
  SCC was right to correct the TJ. TJ did not separate AR and MR as dictated by Beatty.
  
• 
  Courts began to use “objective” mental fault to respond to needs of MR
  
• 
  The problem: objective MR is almost a contradiction in terms
  
• 
  Criminal negligence is aimed at socially blameworthy activity with high risk (AR). Roy + Beatty
  

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