Transcript Criminal Law: Departures from Subjective Mens Rea

Objective Fault: Departures
from Subjective Mens Rea
January 21, 2010
Underlying questions…
 What are we punishing?
 What is the standard?
 What is the significance of personal
characteristics of the accused?
 What kinds of “mistakes” will constitute a
defence
Criminal Negligence
 A statutory exception to requirement that
true crimes require subjective mental state
 An offence that can be committed by an
accused with no subjective fault with
respect to the consequences of actions
What is Criminal Negligence
 Defined (but not creating an offence) in
Section 219 of the Code
Everyone is criminally negligent who
a) in doing anything, or
b) in omitting to do anything that it is his
duty to do, shows wanton or reckless
disregard for the lives or safety of other
persons
Crimes involving Criminal
Negligence
 S. 222 manslaughter by criminal negligence
 S. 221 causing bodily harm by criminal
negligence
 S. 220 causing death by criminal negligence
(same as 222)
Points to Note


1.
2.
3.
4.
All are consequence crimes
Re: Definition
Only covers risk to others
Degree of disregard (ie wanton and reckless)
Criminal negligence may be committed by
omission but only where a duty exists, not found
in the definition
“shows” wanton and reckless disregard,
emphasis on conduct not what is going on in the
mind of the accused
Historical Context of
Law of Criminal Negligence
 Law in a very confused state
 Developed primarily in division of powers
to legislate in the area of driving offences
 Driving context problematic
Tutton
 Not a driving case
 Subjective/objective distinction really
mattered because of honest mistake by the
accused on the facts in this case
 Unfortunately only 6 judges participated in
the ultimate decision with a “tie” on the
subjective/objective issue
Charged with:
 Manslaughter by way of criminal
negligence
 Also, separate charge under 215(2), then
197(2) of separate offence of failing to
provide necessaries, an unusual and
awkward way to word the indictment
3 Issues
 Burden of Proof
 Whether mistake to be assessed on a
subjective or objective standard
 Relevance of personal characteristics of the
accused to objective standard
Facts
 Deeply religious with belief in divine intervention
 April 1979 learn their son has diabetes
 Parents attended classes on diabetes and advised
he would always need to take insulin
 October 1980 Mrs. T stopped the insulin believing
he had been healed by God
 Son became seriously ill and parents admonished
by doctor
 One year later Mrs. T. had a vision in which she
was told he was cured, and two days later he was
pronounced DOA at the hospital
At trial
 Honest belief that Christopher had been healed by
divine intervention
 Therefore if the offence is a subjective mens rea
offence “honest but mistaken belief in a set of
facts which, if true, would make conduct nonculpable” would lead to an acquittal
 If the offence is assessed on an objective standard,
the test is what would reasonable parents in the
circumstances believe
Court of Appeal
 Distinguished between crim neg by
commission and omission
S.C.C.
 Jury misdirected on burden of proof
“without lawful excuse”
The Subjective-Objective Issue
 McIntyre J with L’Heureux-Dube J and Lamer J
(for the objective test):
 Unlike most crimes, criminal negligence punishes
for bad results even where unaware of risks
 Focus on conduct and failure to think
 Negligence precludes element of positive intent
 “shows wanton or reckless disregard” supports
this
 Different than subjective “reckless” described in
subjective fault
Essence of judgement of
Macintyre J.
 “Negligence connotes the opposite of
thought directed action. In other words, its
existence precludes the element of positive
intent to achieve a given result….What is
punished is not the state of mind but the
consequences of mindless action.”
Objective Standard
 Conduct that reveals a marked and
substantial standard of a reasonably prudent
person in the circumstances
 Mistake must be honest and reasonable
 Any consideration of personal
circumstances/attributes solely for the
purpose of determining whether mistake is
reasonable (eg experience of parents with
the illness, attempt to withdraw insulin)
Subjective Standard by Wilson, J
(Dickson CJ and laForest J.
concurring)
 Section 219 requires more than gross negligence in the
objective sense
 Requires at least “miminal” awareness of the prohibited
risk, but departs from subjective standard in application eg
“in the driving context, where risks to the lives and safety of
others present themselves in a habitual and obvious
fashion, the accused’s claim that he or she gave no thought
to the risk or had simply a negative state of mind would in
most, if not all, cases amount to the culpable positive state
of wilful blindness to the prohibited risk”
Summary
 No difference between standard of criminal
negligence when conduct or when omission
 No clear determination of whether standard
is objective or subjective fault
 Issue raised of using personal
characteristics in the determination of fault
Hundal
 Emergence of a “modified objective” standard of
fault for dangerous driving
 Mens rea (fault)to be assessed objectively in the
context of all the events surrounding the incident
 Marked departure from standard of the reasonable
person, penal negligence
 Personal factors not to be taken into account
(except sudden onset of disease, incapacit per
Cory, ,L.H-D., Sopinka, Gonthier and Iacobucci)
(These to be considered as applying to actus reus
per McLachlin, Lamer
Why?
 The Licensing Requirement
 Automatic and Reflexive Nature of Driving
 The Wording of 233, now 249
 Statistics