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Class 16.docx

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Western University
Philosophy 2080
James Hildebrand

Class 16: Criminal Negligence Tutton is a complicated case to sort out, again the primary issue is the objective versus subjective mens rea problem, but the case also raises the troubling difficulty of religious belief. An honest mistaken belief in a certain set of circumstances that would make the accused not aware of the commission of a crime should result in an acquittal, but there are occasions where the belief itself strains credulity. The thorny issues in the following case are thus: a) does Criminal negligence causing death require a subjective mens rea ? b) although not stated explicitly by the majority decision, the dissent also considers it to be necessary to determine if the accused’s beliefs are founded upon reasonable grounds, in short, is it reasonable to believe in divine intervention? The problem as described accords with the lay person’s intuitive response to this case. The accused parents seemed to have known the difference, known the potential consequences of their conduct, and must have known them with what most of us would see as a moral certainty. Can they convince the court they had an honest but mistaken belief that their son had been healed by God? And if they could convince the court of this fact, would it provide a defence? Incidentally, the principle issue is one of interpretation. Do the words of the relevant offence, by their reference to “reckless and wanton disregard” impose some kind of mens rea? If mens rea is required, then an honest but mistaken belief in consent is a potential defence. If no mens rea the the beliefs of the accuseds are irrelevant. R v TUTTON: p 155 facts: parents of a diabetic child - child diagnosed 1979, admitted to hospital - mom and dad explained diagnosis, took courses on care, insulin injections etc - both parents were well informed about disease, treatment, risks etc - both parents were religious - wanted a cure, were told by Dr’s no known cure, would always need insulin - Oct 2/ 80 - mom stopped injections, thought boy cured by divine intervention - boy became seriously ill - took him to the hospital - Dr’s said boy would die without insulin, parents promised not to discontinue w/out Dr’s instructions - one year later, discontinued injections, mom had a dream that god cured the boy - dad found out, supported mom - rushed boy to hospital - DOA charged with Manslaughter - death by criminal negligence - “criminally negligent when - omitting to do anything a duty to do, shows wanton or reckless disregard for lives or safety of other person case is all about interpreting this phrase - i.e. does it require objective or subjective mens rea? On the wording @trial - convicted of manslaughter @appeal - conviction set aside, new trial ordered - trial judge did not properly instruct the jury about all elements of offence SCC: Wilson - agrees with disposition of appeal, but not with application of an objective standard of mens rea Def - honest but mistaken belief in son’s cure - knew all about disease, believed in divine intervention - Ont Ct of appeal “would not have applied an objective standard” - O.C.A. - trial judge said no mens rea - C.A. didn’t deal with standard, only whether some was needed - Wilson says - wanton or reckless disregard implies advertence to the risk, then proceed anyway - wanton = “willful blindness” - p 157 –8 , sees crim neg as - crown proves conduct shows wanton and reckless disregard as actus reus, prima facie ev of mens rea, accused can lead evidence to show why inference should not be drawn - recent legal analysis suggests adding subjective component to objective test - look at particular characteristics of the accused H.L.A. Hart - Wilson disagrees with other SCC judges - McIntyre and Lamer - accept objective test - what accused actually had in mind must be reasonable - W rejects any subjectively altered or adjusted objective standard - stick with subjective standard of mens rea - for crim neg - means advertence and willful blindness to the risk - beliefs do not have to be reasonably held p 161 - W’s ratio - appeal dismissed, new trial ordered - crim neg not an objective standard McINTYRE: - 2 defences - a) honestly held but mistaken belief in something that would make them not guilty - eg divine intervention - b) crown had to prove failure to provide assistance - they didn’t know child needed assistance, no wanton and reckless disregard - case authority suggests an objective test - On C.A. said no to objective in this case - because a crime of omission not comisssion - M rejects this analysis - p163, - wording of the code makes no distinction between omission and commission - *** this case is about interpretation - not a Charter challenge , W sees interpretation available for subjective, M sees interpretation means objective - conduct of the accused is at issue, not intention or mental state - 164 – negligence , crim neg adopts negligence - negligence is not thought directed intentional action, no positive intent to produce a given result - crim neg must be objective standard - only thing that distinguishes crim neg from other crimes - test is reasonableness - can take into account particular facts or circumstances - not what the accused actually thought - but can take into account facts to determine if what the accused thought was reasonable - court would have to consider all relevant facts - goes on to list facts re accused’s knowledge of disease and consequences - * p165 - whether belief in miraculous cure was reasonable CONSTRUCTIVE CRIMES R v Pare NOTE: This case deals with an offence that can be characterized as a “constructive” crime. In law, when we say something is “constructive”, it means that thing is established by a set of circumstances. For example, in this case, we know that ordinarily murder
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