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 whoa) in doing anything, orb) 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 All are consequence crimes Re: Definition1. Only covers risk to others2. Degree of disregard (ie wanton and reckless)3. Criminal negligence may be committed by

omission but only where a duty exists, not found in the definition

4. “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 non-culpable” 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