2. Objective Fault: Departures from Subjective Mens Rea January 21, 2010

3. 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

4. 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

5. 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

6. 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)

7. Points to Note  All are consequence crimes  Re: Definition 1. Only covers risk to others 2. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. Court of Appeal  Distinguished between crim neg by commission and omission

15. S.C.C.  Jury misdirected on burden of proof “without lawful excuse”

16. 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

17. 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.”

18. 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)

19. 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”

20. 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

21. 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

22. Why?  The Licensing Requirement  Automatic and Reflexive Nature of Driving  The Wording of 233, now 249  Statistics