Objective Fault - Concept Summary from Lecture PDF

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Concept Summary from Lecture...

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Objective Fault/Criminal Negligence Crimes of Objective Fault objective standard hints: o ought to o reasonable care o good reason o reasonable ground o reasonably expected o reasonable steps list of offences: o intent for accessories o careless use of firearms or ammunition o counselling another to be a party to an offence o treason o failure to use reasonable care to prevent injury from an explosive substance o bigamy as a result of a mistaken and unreasonable belief a spouse is dead o defamatory material o criminal breach of trust sometimes courts use an objective standard for an offence where it is not expressly required o sometimes they read it in where the crime involves a duty to act  failing to provide the necessaries of life  offences requiring criminal negligence

Criminal Code § 219 – Criminal Negligence (1) Every one is criminally negligent who o (a) in doing anything, or o (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. Definition of duty (2) For the purposes of this section, duty means a duty imposed by law.

Criminal Code § 220 – Causing Death by Criminal Negligence Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable  (a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (b) in any other case, to imprisonment for life.

Criminal Code § 221 – Causing Bodily Harm by Criminal Negligence Every person who by criminal negligence causes bodily harm to another person is guilty of  (a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or  (b) an offence punishable on summary conviction.

Criminal Code § 222 – Homicide 1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being. Kinds of homicide (2) Homicide is culpable or not culpable. Nonculpable homicide (3) Homicide that is not culpable is not an offence. Culpable homicide (4) Culpable homicide is murder or manslaughter or infanticide. Idem (5) A person commits culpable homicide when he causes the death of a human being, o (a) by means of an unlawful act; o (b) by criminal negligence;

o

(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or (d) by wilfully frightening that human being, in the case of a child or sick person.

o Exception (6) Notwithstanding anything in this section, a person does not commit homicide within the meaning of this Act by reason only that he causes the death of a human being by procuring, by false evidence, the conviction and death of that human being by sentence of the law.

Criminal Code § 234 – Manslaughter Culpable homicide that is not murder or infanticide is manslaughter.

Criminal Code § 236 – Manslaughter Every person who commits manslaughter is guilty of an indictable offence and liable (a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (b) in any other case, to imprisonment for life.

Criminal Code § 249 (1) (a) – Dangerous Operation of Motor Vehicles, Vessels, and Aircraft (1) Everyone commits an offence who operates (a) a motor vehicle in a manner that is dangerous to the public, having regard to all the 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;

O’Grady v. Sparling Facts Issue Rule

Decisi on Notes

P was charged w careless driving Whether the provincial careless driving charge is inoperative as being in relation to criminal law There is a diff btwn recklessness and negligence – it is the diff btwn advertence and inadvertence – they are opposed It is wrong to suggest that recklessness is a form of negligence o Negligence = inadvertence (not paying attention to or not acting in the same way as a reasonable person would in the circumstances o Recklessness s= advertence (aware of risk but proceeds anyway) Dismissed – negligence is a form of recklessness which connotes inadvertence Afterwards there was an overwhelming tendency for provincial courts to ignore this case in adopting an objective standard for criminal negligence

R. v. Tutton and Tutton (Modified Objective Standard) Facts

Issue Rule

Decision Reasoni ng

Charged w manslaughter of their 5 year old son. He was diagnosed w insulin and they stopped giving him the medicine bc they thought that god was healing him. He got immediately ill and they took him to the hospital where they told them he needed to be taking the medicine. The mom gave it to him until she received another vision from God telling her that he was cured from diabetes. He died Criminal negligence: requires a modified objective standard of unreasonableness so that the relevant characteristics of the particular actor, rather than those of an ordinary person, will be the background against which to measure the reasonableness of certain conduct or beliefs Surrounding events must be considered The accused perception of the facts is not considered for the purpose of assessing malice or intention but only to form a conclusion as to whether the accused conduct, in his view of the facts, was reasonable It is ok for the trier of fact to ask: must not the accused have had the minimal awareness of what they were doing? New trial ordered. Individualized standard Neither subjective or objective Not subjective bc they must inquire about the conduct of the accused themselves Not objective bc the inquiry is not limited to what was in his mind

Problems: Disabilities can only be applied in a general fashion to alter the objective standard Attempts to introduce subjective elements into objective standards risk being overinclusive (lowering the standard of liability on a characteristic basis) and underinclusive (characteristics that are unique)

Waite v. R. Facts

Issue Rule Decision

Reasoni ng

Was drinking and killed 4 inds taking part in a hayride. He drove behind it, passed it, turned around and deliberately approached the hayride @ high speed on the wrong side of the road without headlights. He told his friends “let’s see how close we can get” The mental element in criminal negligence is the minimal intent of awareness of the prohibited risk or wilful blindness to the risk Dismissed. An objective test of a marked and substantial departure from the standard of behaviour expected of a reasonably prudent person is necessary. The T judges’ final instruction to the jury was in error in regard to the degree of mens rea (did not specifically mention the objective test). If he instructed them correctly, they probably wouldn’t have acquitted Intentioned need not be proved by the crown, it didn’t matter that the appellant intended to drive safely when he entered the automobile

R. v. Anderson Facts

Issue Rule

Decision Reasoni ng

Charged w criminal negligence causing death. Was thinking of something else, ran a red, and the passenger in the car he hit died. No evidence of erratic driving. T judge said the crown failed to prove the charge beyond a reasonable doubt. Said neither mens rea nor consequences were material in making the decision. Whether the T judges comments relating to the relevance of the consequences and intention affected the outcome. Use of word negligence suggests the impugned conduct must depart from a standard objectively determined Trier of fact may but it not obliged to infer the necessary mental element from the conduct which is found to depart substantially from the norm Intention isn’t necessary – not important that they intended to drive safely *** adds requirement of marked and substantial departure from the objective norm for offences based on criminal negligence Acquittal restored. No error of law resulted from T judges instruction The consequences of the action are not important (unless otherwise required by the act) The death of the passenger was a necessary ingredient of the actus reus – otherwise it is not relevant The fact someone was killed added nothing to the conduct of the appellant If drinking and driving was not a marked departure from the standard, it did not become so because a collision occurred Criminal negligence must be substantial whereas recklessness must be obvious As the risk of harm increases, the significance of the distinction btwn objective and subjective approaches decreases Marked departure test Tutton: objective test should include a generous allowance for characteristics to the accused o Dissent said it could be overinclusive and underinclusive Court continued the debate over this in the below case

R. v. Hundal Facts

Issue Rule

Accused was charged w dangerous driving causing death. Driving an overloaded dump truck in Vancouver. He was driving normal speed. Light turned red but he didn’t think he could stop so he honked his horn and proceeded to go through. (DID HE TRY TO SLOW DOWN??). as he went through the intersection another car going through was hit and the person was killed. What was the nature of the fault element? Dangerous driving causing death is an objective test for several reasons: Licensing requirement – it is unnecessary for a court to est the accused intended or was aware of the consequences of their driving o Consideration of person factors is not necessary in light of fixed standards which must be met by drivers Automatic and reflexive nature of driving – ask not what they subjectively intended but rather whether viewed objectively, the accused exercised the appropriate standard of care

Wording of the section suggests objective Statistics Modified objective test takes into account all the relevant circumstances in the events surrounding the alleged offence and give the accused an opportunity to raise a reasonable doubt as to what a reasonable person would have thought in the particular situation Only an honest and reasonably held belief will exonerate the accused Decision Reasoni ng

Obiter (La Forest)

Licensing requirement Driving can only be done by those who have a licence Familiar w standards of care required Licence shows they are mentally and physically capable of driving They place themselves in that position Automatic and reflexive nature of driving It is so routine and so automatic that it is impossible to determine a particular state of mind of a driver at any given moment Primarily reactive and not contemplative It is impossible for someone to say their specific intent was at any moment during a drive other than going from A  B it would be a denial of common sense for a driver whose conduct was objectively dangerous to be acquitted on the ground that he wasn’t thinking Wording of the section Statistics lots of car related deaths – compelling need for effective legislation which strives to regulate the manner of driving vehicles and lessen the carnage Modified objective test jurist should be clear on what mens rea is required Would add that both in its wording and object it differs from the general offence of criminal negligence  requires a modified objective test

Creighton (Negligence, Marked Departure) Facts

Issue Rule

Decision Reasonin g

On a charge of manslaughter, defence counsel conceded at trial the injection into the deceased body of cocaine constituted trafficking within the definition in the statute. He was an experienced drug user. He gave cocaine to a willing woman. She stopped breathing. He refused to call an ambulance but someone eventually did Whether the common law definition of unlawful act manslaughter contravened s. 7 of the charter what does the objective test entail how much weight should be given to the personal characteristics of the accused Modified objective test: 1. would a reasonable person in the same circumstances have been aware that the likely consequences of his or her unlawful conduct would create the risk of death  if no, continue 2. were they unaware? a. because they did not turn their mind to the consequences of the conduct and thus to the risk of death likely to result b. bc they lacked capacity to turn his or her mind to the consequences of the conduct and thus to the risk of death likely to result due to human frailties? 3. Would the reasonable person w the capacities of the accused have made himself aware of the likely consequences Actus reus  significant (marked) departure from the standard of the reasonable person Required a marked departure from the standard of care of a reasonable person. To not breach the charter, crimes of ordinary negligence may not suffice to justify imprisonmen t Question must shift to whether a reasonable person in the position of the accused would have been capable of foreseeing such a risk (taking into account his extensive drug use) doesn’t relieve them of culpability if they don’t foresee the consequences Key element of objective test is control if one is able to act prudently and not endanger the life of others, one will be held liable for failing to do so the inability to control a particular frailty which resulted in the creation of the risk may offer a moral excuse for having brought about that risk only look at frailties which related to an accused capacity to appreciate the risk – doesn’t include intoxication or impairment or a sudden and temporary incapacity

only look at things which habitually effect the accused awareness of the circumstances which create risk o must be circumstances that can’t control or manage o HOWEVER a reasonable person is expected to compensate for his or her frailties to the extent they are conscious and able to do so Further things to be considered: Gravity of offence Inherent purposefulness of the conduct involved Objective mens rea is not concerned w what the accused intended or knew. The mental fault lies in a failure to direct the mind to a risk which the reasonable person would have appreciated (ordinary prudent person in the circumstances). Is not concerned w what was actually in the accused mind, but w what should have been there, had the accused proceeded reasonably. Mens rea: The question is what the reasonably prudent person would have done in the circumstances The legal standard is always the same – what a reasonable person would have done in the circumstances. The actual (de facto standard of care may vary w the activity and the circumstances in the particular case Objective test: whether a reasonable person in the circumstances would have foreseen the risk of harm from their actions. If this is satisfied, then the necessary mens rea has been proven. Personal characteristics are not taken into account when considering the legal standard. Only if the accused lacked the capacity to understand the risk flowing from their actions can they be excused. No personal factors such as age, race, gender, poverty, exp, can be considered except where they relate to capacity (were the capable of appreciating the risk flowing from their conduct) Majority personalizes the objective test to the point where it is basically subjective Objective mens rea is not concerned w what the accused intended or knew Mental fault lies in the failure to direct the mind to a risk which a reasonable person would have appreciated Negligence must be a marked departure from the standard of care of a reasonable person Habitual factors personal to the accused should not be taken into account Exception: incapacity to appreciate the nature of the risk which the activity in Q entails o Lack of capacity to appreciate the nature and quality or consequences of the act While legal duty is not individualized due to their characteristics, it is individuals in application by the nature of the activity and the circumstances surrounding the failure to take requisite care All circumstances must be considered THE LEGAL STANDARD OF CARE IS ALWAYS THE SAME – what a reasonable person would have done in all the circumstances De facto applied standard of care may vary w the activity in Q and the circumstances Person would failed to be the elevated de facto standard of care when: o They are not qualified to give the care o Or they are qualified by fail to exercise special care required by the activity It would be inappropriate to hold accused persons to a higher standard of care by reason of the fact they may be better informed/qualified than the persons of reasonable prudence o Standard is the same, the means by which it is breached is diff o

Obiter

Beatty (Modified Objective Test) Facts

Issue Rule

Accused was charged w 3 counts of dangerous operation of a motor vehicle causing death. His truck, for no apparent reason, suddenly crossed a solid centre line into the path of an oncoming vehicle. Witnesses say it was driven properly prior to the accident. Intoxication was not an issue and it had not suffered from mechanical failure. He wasn’t sure what happened by said he must have lost consciousness or fallen asleep. Did he commit the actus reus and mens rea of the offence? Only when there is a marked departure from the norm that objectively dangerous conduct demonstrates sufficient blameworthiness to support a finding of penal liability ACTUS REUS: If the accused was driving in a manner dangerous to the public, having regard to all circumstances include nature, condition, and use of such place and amount of traffic o If does not constituted a marked (significant) departure from the standard expected of a reasonably prudent driver, there is no need to pursue the analysis MENS REA: a marked (significant)departure from the standard of care a reasonable person would do in the accused circumstances – a reasonable person would have been aware of the risk involved w the conduct o Only when there is a marked departure will the conduct demonstrate sufficient blameworthiness

to support a finding of criminal liability Why marked – bc crim fault must be based on conduct that merits punishment Must consider evidence about the actual state of mind of the accused to determine whether ti raises a reasonable doubt whether a reasonable person in the accused position would have been aware of the risk created by this kind of conduct o There is no such evidence to raise a reasonable doubt the court may convict the accused Objective test must be modified to give the accused the benefit of reasonable doubt about whether the reasonable person would have appreciated the risk or could and would have done something to avoid creating the danger Actus reus must be defined by the act Bc the accused mental state is relevant in a criminal setting the objective test must be modified to give the accused the benefit of any reasonable doubt about whether the reasonable person would have appreciated the risk or could and would have done something to avoid the danger Appeal allowed. Acquittals restored. Few seconds of negligence could fall within civil negligence but could not support a marked departure from the standard of care of a reasonably prudent driver for a conviction. As a result of the ruling in this case, the test which applies to any crime requiring objective fault where there is a risk of imprisonment must apply the modified objective test as described in this case T of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused. Short of incapacity to appreciate the risk or incapacity to avoid creating it, the accused personal attributes are not relevant Standard against which the conduct must be measured is the conduct expected of the reasonably prudent person in the circumstances. The reasonable person must be put in the circumstances the accused fou...