Philosophy 2080 Lecture Notes - Mens Rea, Criminal Negligence, Strict Constructionism

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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.
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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”
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- 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
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