CHAPTER 5 – Objective Mens Rea
To impose objective liability, Crown only need to prove accused’s conduct fell below (“acting negligently”) the standard of care of a
reasonable person, who when placed in same circumstances, would have been aware of the risk and avoided taking it
o Irrelevant what is in accused’s head, but focus on what should’ve been there had the accused proceeded reasonably
Mere carelessness may be liable at civil law (to pay compensation), criminal law (penal negligence) only for blameworthy conduct
o Marked Departure Test – conduct is a marked departure from standard of care only for most serious forms of negligent
behaviours can lead to a conviction under Criminal Code
Accidently breaking friend’s glass – no b/c happens to everyone ; driving recklessly - yes
Doesn’t consider peculiar personal characteristics of the accused EXCEPT in the rare situation in which the accused lacks the capacity to
understand/appreciate nature of risk the activity in question
Offences Imposing Objective Liability
Dangerous driving (s249) = Operating a motor vehicle in a manner that is dangerous to the public
o Summary or indictable (max 5 years) + Resulting in bodily harm (10 years), death (14 years)
o Conviction can take place only where the accused’s driving conduct constitutes a marked departure from the standard of care
expected of the reasonable driver in the particular the circumstance facing the accused
Careless driving (arises under various provincial statues)
o Conviction occur when accused’s conduct fell below the standard of care of a reasonable driver (any deviation no matter how
minor can lead to conviction)
o Criminal negligence causing death (220) / causing bodily harm(221)
o Same as DD, but differences lies in the degree to which the conduct departs from the standard of reasonable care.
o Criminal negligence More serious in nature thus requiring "more marked departure".
Crown must prove both a marked and substantial degree of departure.
The departure must be so extreme that it demonstrates a wanton or reckless disregard for life or safety.
Modified Objective Test (from Hundal 1993)
o Courts must take into account
What were the relevant circumstances the accused faced?
What was accused’s knowledge of the circumstance? (Accused’ perception of those circumstances.)
Would a reasonable person w/ accused’s knowledge realize the risk involved?
Would a reasonable person have taken steps to avoid that risk?
o Eg – sudden heart attack and crash car, not guilty. If know have heart problem, still drive and crashes, then is guilty.
Hundal was reaffirmed in Beatty (2008). Beatty lost memory due to heat stroke that day and crashed. His
momentary lapse of attention was ruled not a “marked departure” from the standard of care and, therefore, was not
sufficiently blameworthy to warrant a conviction.
Charron J restated the requirements for the offence of dangerous driving:
Actus Reus = Driving in a manner that was dangerous to the public, having regard all the circumstances
Mens Rea = 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
Unlawful Act Manslaughter
S234 states "manslaughter = culpable homicide that is not murder or infanticide "
Manslaughter = an unintentional form of killing that cannot be excused as an accident or justify in some other manner (such a self-
Manslaughter - two forms =
o 1) Causing death by criminal negligence.
o 2) Unlawful act manslaughter = When the accused commits an unlawful act that results in death
If there is intent it will be murder instead
UAM - Lack necessary mens rea (intent) for murder
Unlawful act = act prohibited by law, eg assault, drug trafficking, aiming gun, etc
In Creighton (1993), the Supreme Court of Canada ruled that the necessary mens rea for this offence is “objective foresight of the risk of
bodily harm that is neither trivial nor transitory in nature.”
The Crown must prove that the accused had the necessary mens rea for the commission of the unlawful act that resulted in death (e.g.,
an assault) and that a reasonable person in the same circumstances as the accused would have foreseen the risk of bodily harm, given
the inherently dangerous nature of the unlawful act. Foreseeability of death is not required. Bodily Harm
A) Unlawfully Causing Bodily Harm (s269)
o DeSousa 1992 – throwing bottle, a reasonable person would know its dangerous
Actus Reus unlawful act, objectively dangerous
Mens Rea objective foresight of non-trivial (minor) bodily harm
B) Assault Causing Bodily Harm (s267)
o Dewey 1999 – push someone and hit a jukebox.
o Crown only need to prove foresight of “any sort of non-trivial bodily harm”, not “specific type of bodily harm”
C) Aggravated Assault (s268)
o MacKay(2004) – crashed bike into victim, only wanted to scare, not hit. But reasonable person would foresee the risk of such
conduct, thus guilty.
Actus Reus = assault that wounds, maims, disfigure or endangers the life of the victim
Mens rea = objective foresight of serious injury
Offences Involving Criminal Negligence
Definition of CN = “act or omission that shows wanton or reckless disregard for the lives or safety of other persons”
o Common offence include “causing death by CN, causing bodily harm by CN, manslaughter by CN”
There is some uncertainty as to whether the mens rea for criminal negligence under the CC is objective or subjective in nature
Later approach used by SCC in later cases Creighton and Hundal strongly suggest CN as an objective liability
o Justices Wilson Stated that proof of criminal negligence requires some degree of advertence or willful blindness to the threat
to the lives or safety of thesubjective mens rea
o Justice McIntyre Decision must be made on a consideration of the facts existing at the time and in relation to the accused’s
perception of those fatsmodified objective test
Mens rea = same as unlawful act manslaughter
Defence to murder – only for female who recently gave birth
Crown must esta