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Objective Mens Rea.docx

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Simon Fraser University
CRIM 230
Peter Smith

Mens Rea – Objective Liability: - Subjective knowledge is not required – the test is whether conduct falls below the standard of the reasonable person – with some special rules to keep in mind - Negligence can have multiple meanings in law - Civil negligence – not necessarily a crime, equated with “carelessness” – a civil action is primarily meant to compensate victims - Criminal negligence/dangerousness – is a crime, charge is primarily to punish an accused for reprehensible conduct - To be constitutionally valid, only the “morally blameworthy” can be punished criminally (Martineau) – higher crimes require higher standards – any “criminal act” requires some degree of a “guilty mind” - Thus, criminal negligence probably requires more than proof of just “carelessness” - In Creighton (SCC, 1993 – drug injection with poor after care), the SCC noted: - Using an objective test for the mens rea of a criminal offence “does not violate the *POFJ+ that moral fault of the accused must be commensurate with the gravity of the offence and its penalty… subject to the caveat that acts of ordinary negligence may not suffice to justify imprisonment… the negligence must constitute a marked departure from the standard of the reasonable person” - Thus, the conduct must not only fall below the standard of the reasonable person, it must constitute a “marked” departure from that standard Objective Mens Rea – The Reasonable Person: - For objective mens rea crimes, reasonable person test does not take into account personal characteristics of the accused (personality, wealth, intelligence, education) unless they impact the accused’s capacity to appreciate the risk (i.e. blindness, illiteracy, hearing impairment, dyslexia, etc) - From Creighton, we take personal characteristics into account only when “the person is shown to lack the capacity to appreciate the nature and quality or the consequences of his or her acts; apart from this, we are all rich and poor, wise and naïve, held to the minimum standards of conduct prescribed by criminal law” - Ex: (1) a person with dyslexia gives the wrong medicine (yes) (2) a driver suffers from sudden blindness (yes) (3) a driver was too poor to afford a traffic safety course (no) (4) a driver is young and inexperienced (no) (5) a boat driver honestly thought visibility was better than it was - But, we do take into account specific knowledge the accused has of relevant circumstances (the “modified objective test” – Hundal); thus if the accused has special knowledge related to the situation, that can affect the reasonable person test - Thus, the test might be best stated as, “did the conduct of the accused constitute a marked departure from the conduct of a reasonable person in the same circumstances and with the same knowledge of the circumstances” Objective Mens Rea – Proving it: - Often, objective mens rea crimes require application of the “modified reasonable person” test twice. The mental element of an objective mens rea crime can be inferred from the facts – absent an alternative explanation from the accused with an AOR, this is a “prima facie” inference. For example, dangerous driving: - S.249(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 - In Hundal (1993, SCC – overloaded dump truck runs red light), explanations offered by the accused were refuted by other evidence (witnesses, position of the victim) - Similar case in Reed (1997 – BCCA), where a truck driving 20km over the limit, around a bend, which crossed the center line was prima facie evidence of dangerous driving. No alternative explanation was offered, so it’s open to conclude objective mens rea was present. - Contrast with Stogdale (1995, OCA) where a coastguard boat struck a fishing vessel in fog. Prima facie negligence, but the accused offered the explanation that he made a reasonable mistake as to the actual visibility (backed up by other crew) - Further question was “would a reasonable person, on the facts as reasonably believed by the accused, have appreciated the risk and refrained from taking it?” Objective Mens Rea – Beatty: - In Beatty (2008, SCC), similar facts as Reed, but no evidence of any speeding. Head on collision after crossing line due to momentary loss of attention (blacked out, heat stroke possible cause). - SCC said this was not a “marked” departure from the reasonable person standard - “*For mens rea it must be proven+ on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier 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’s personal attributes such as age, experience and education are not relevant.” Objective Mens Rea – CN and UA Manslaughter (Criminal Negligence and Unlawful Act): - 222.(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 by threats or fear or deception to do anything that causes death o (d) by wilfully frightening a child or sick person - S.229 culpable homicide is murder o (a) where the person causes the death o (i) means to cause the death or o (ii) means to cause bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not - S.234 culpable homicide that is not murder or infanticide is manslaughter - Unlawful act manslaughter, or criminal negligence manslaughter occurs where (1) an unlawful act is committed (usually an assault) or (2) an act of criminal negligence is committed, and death results, but the mens rea in s.229 is not present - The required mens rea for CN and UA manslaughter is objective Objective Mens Rea – UA Manslaughter: - Creighton – drug dealer injected a victim with cocaine, she reacted badly, accused delayed treatment (insisted on it). Injection of drugs was illegal act. - The SCC said “the test for the mens rea of unlawful act manslaughter in Canada... is (in addition to the mens rea of the underlying offence), objective foreseeability of the risk of bodily harm which is neither trivial nor transitory in the context of the dangerous act” - First, the crown must show the full mens rea for the underlying unlawful act, then must show that a reasonable person, in the circumstances of the accused, would have foreseen the risk of non-trivial bodily harm from it - Sinclair (2008), 4 year old was disciplined (thrown into her bed) and hit her head - The MCA determined that “the risk of non-trivial bodily harm arising from the accused actions was objectively foreseeable” - In Vailancourt (1995), an accused and a friend were playing with a handgun. Accused (apparently) emptied the clip, but still managed to shoot friend - But, QCA found no evidence that a reasonable person, on the facts as the accused reasonably perceived them to be, would have foreseen the risk of nontrivial bodily harm (there was no animosity, friend showed no fear, they really, and perhaps even reasonably, thought it was empty) Objective Mens Rea – Criminal Negligence Manslaughter: - S.219(1) everyone is criminally negligent who: o (a) in doing anything or o (b) in omitting to do anything that is his duty o (c) shows wanton or reckless disregard for the lives or safety of other persons - S.220 every person who by criminal negligence causes death (or bodily harm, s.221) to another person is guilty of an indictable offence - Requires a “marked and substantial departure” (as opposed to just a marked departure) from the standard of the reasonable person - L. (J.) (OCA, 2006) demonstrates this higher threshold – a driver had friend on the hood of his van and kept driving - Court noted “it is not self-evident that [the] act of putting the car in gear with a person on the hood satisfies this higher standard” - Causing death by criminal negligence (s.220) and manslaughter by criminal negligence (s.222(5)) are the same. If anything, a tactical tool for crown in determining offence. - But note, the mens rea standard is lower for dangerous driving causing death, UAM, and other (non-criminal negligence based) objective liability offences Objective Mens Rea – Assault Causing Bodily Harm: - The objective standard applies once the underlying offence of assault is established - Once crown has proven either 1) deliberate application of force of 2) deliberate threat to apply force with present ability to do so, then the crown only needs to show that a reasonable person would foresee the risk of non-trivial injury (again, a “marked” departure is required) - The crown does not need to prove that the accused intended the particular “type” of damage that occurred, only that there was an intentional application of force or threat and non-trivial harm was objectively foreseeable Objective Mens Rea – Special Standards: - Medical Professionals: - S.216 everyone who undertakes to administer surgical or medical treatment to another person or to do any other lawful act that may endanger the life of another person is, except in cases of necessity, under a legal duty to have and to use reasonable knowledge, skill and care in so doing - There is an elevated standard of liability for those who administer medical treatment - Rogers (1968) – former doctor (struck), continued to practice, advised malnutrition for skin disorder. Charged with causing death by criminal negligence. - Honestly believed the diet would help - BCCA said the objective reasonable person is elevated to that of a “reasonable doctor” - Similarly, in Sullivan and Lemay (1986), the BCSC said that two non-licensed midwives had to meet the reasonable standard of a “competent childbirth attendant” - Handling Explosives and Firearms: - S.79 everyone who has an explosive substance in his possession or under his care or control is under a legal duty to use reasonable care to prevent bodily harm or death to persons or damage to property by that explosive substance - S.86(1) every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device, or any ammunition or prohibited ammunition in a careless manner or without reasonable precautions for the safety of other persons - Must meet the standard of care expected of a reasonable person who has taken some training in the handling of the dangerous materials - The level of expertise does not change with “special” training or experience. The law imposes a single minimum standard, slightly elevated to reflect a reasonable person acting prudently who has acquired the necessary knowledge to engage in the activity. Objective Mens Rea – Review: - Step 1 – actus reus - For non-criminal negligence cases such as dangerous driving, UA
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