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LY205 (2)
Chapter 5

Chapter 5_7 review.docx

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Department
Law & Society
Course
LY205
Professor
Patricia O' Reilly
Semester
Fall

Description
Chapter 5: Objective Liability: whether or not the accused person’s conduct fell below the standard of the hypothetical reasonable person: it is irrelevant whether the accused person was subjectively aware of the risk that his or her conduct would cause consequences that are prohibited by law. Offences involving criminal negligence: Unlawful Act Manslaughter: An offence that imposes objective liability Elevated standard of care: This is the standard of care expected of a reasonable person who has acquired the necessary expertise and training to engage in such activities. McLaughlin in the Creighton Case (1993) Marked Departure Test: to determine if there has been a departure from the standard of care expected of a reasonable person that the accused can be convicted of a criminal code offence. Uniform standard of conduct in Objective Liability test: Offences imposing objective liability: Dangerous driving: (dangerous operation of a motor vehicle) arises under section 249 (1) of the CCC. “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… Indictable offence- up to 5 years imprisonment, or can be summary conviction offence. Careless driving: provincial/territorial statute. Ontario: section 130 of the Highway Traffic Act -Everyone is guilty of the offence who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway -$200-$1000 fine, up to 6 months in prison, or both. -Crown does not have to prove that the accused was subjectively aware of the risk that his/her driving conduct created for others on the highway. Difference between mere carelessness and crim. Negligence: a person who falls below the standard of a reasonable person is considered to have acted negligently, meanwhile carelessness is falling just a relatively small degree below the standard of a reasonable person and may be liable at civil law level to pay compensation, but will not make one a criminal. Cases: Creighton R. v. Creighton Date of injection: october 26, 1989. Marc Creighton- accused. Ms. Martin deceased. Friend: Frank Caddedu all were experience cocaine users. 1993 (decision) Convicted on may 18, 1990. sentenced to four years, Creighton appealed the case, but the verdict was confirmed in the appeal. Creighton, Companion and the deceased. 18 hour period of consuming drugs (cocaine) and alcohol. With consent of deceased, injected into forearm. After injecting into the forearm she immediately started convulsing and stopped breathing. Cardiac arrest and later asphyxiated on the contents of her stomach. As a result the deceased (she) experienced cardiac arrest Friend wanted to call for help, creighton verbally intimidated him not to. Creighton placed her on the bed still convulsing, they cleaned the apartment of fingerprints and then left. Companion returned after 6 or 7 hours and placed call to emergency services. Charged with manslaughter (creighton) defence: injection into forearm was consistent with trafficking of drugs. Crown: argued that the accused was guilty of manslaughter as death was direct sonsequence of an unlawful act (injecting drugs) convicted! Court of Appeal held up the conviction, appeal dismissed. because he didn't mean harm intentionally it was manslaughter and not murder. The standard of mens rea for manslaughter is tailored to the seriousness of the offence. Must be symmetry between the mens rea of a crime and the consequences. (general rule- not principle) test for mens rea manslaughter: based on foreseeability of risk and harm to the body, rather than the death. Personal characteristics should not affect the eligibility to prosecute someone to the fullest extent of the law, unless it impairs their judgement that they cannot appreciate the nature of their conduct in context to intentional crimes versus manslaughter and negligence crimes. Charges were brought because he FAILED to act (not calling emergency services) question is: what would a reasonable person have done in the circumstances surrounding the accuseds failure to act? Legal standard of care is always the same. De facto: applied standard of care. (may vary with certain circumstances) FIRST QUESTION: actus reus in terms of negligence: marked departure from the standard of a reasonable person in the circumstances of the case. SECOND QUESTION: mens rea objective mens rea: foreseeing risk. THIRD QUESTION: did the accused have the capacity to see risk from his actions? If yes: the MORAL fault will be found and then the accused will be properly convicted. If not, must be acquitted. Reasonable person would have seen the risk to injecting cocaine.-therefore the charge was correctly entered. Objective: can see the risk associated with injecting cocaine. Stigma of crimes: make sure that the person is guilty, because they will have a stigma of being associated with the crime. More stigma will attach if the person has knowingly engage in wrongful conduct than to those who are reckless (manslaughter) the proper interpretation of unlawful act manslaughter under s. 222(5)(a) of the Code requires the Crown to prove beyond reasonable doubt: (a) that the accused has committed an unlawful act which caused the death of the deceased;(injecting cocaine) (b) that the unlawful act must be one that is objectively dangerous (should know the risk of injecting cocaine)(i.e., in the sense that a reasonable person would realize that it gives rise to a risk of harm) (c) that the fault requirement of the predicate offence, which cannot extend to offences of absolute liability, was in existence and (d) that a reasonable person in the circumstances of the accused would foresee the unlawful act giving rise to a risk of death. trier of fact (crown) must look at any hinderences that could have rendered the accused's perception incapable of seeing- and the hinderences must be something that is out of the control of the accused. Trial judge concluded that the accused foresaw the risk of death- due to the toxicity of the drug and the nature known to many. Would be convicted under Subjective OR Objective- either component of mens rea he could be convicted under. Tutton and Tutton respondants were the parents of a 5 year old diabetic. Believed in faith healing, but they still went to a doctor in the first place. As a result of withholding insulin, after they thought him to be cured, he died. Charged with death by criminal negligence in failing to provide necessary's of life, and therefore manslaughter. An objective test issued: it's the actions of the accused that is looked at, not the intention or mental state. The phrase "wanton or reckless disregard for the lives or safety of other persons" signifies more than gross negligence in the objective sense. It requires some degree of awareness or advertence to the threat to the lives or safety of others or alternatively a wilful blindness to that threat which is culpable in light of the gravity of the risk assumed. Here, the jury should consider respondents' belief that their son had been cured by Divine intervention in light of the whole background of the case in order to determine if it was honest and reasonable. The jury would then have to determine if their conduct represented a marked and significant departure from the standard to be observed by reasonably prudent parents The respondents' defence in this case centred around their claim of honest but mistaken belief as to the nature of their son's condition Mom's statement: Complete faith in Jesus and obedience to the word of God is the reason for our decision to cease giving Chris insulin. Since I have accepted Jesus as my personal Saviour and Lord. He has revealed himself to me in vision and spoke in words of his own that Christopher is healed and further that complete faith in Him not man's doctrine or shall I say the world's teachings will bring forth the manifestation of this healing. Standing on the promises of God and His holy Word 100%, Wednesday, October 14, 1981 I did not administer Christopher insulin. Thursday and Wednesday Christopher ate, played normally although Thursday evening he became sick to his stomach. Friday I kept him home from school and he kept liquids in his stomach. Saturday morning until approximately 1:00 PM he was resting comfortably. I left him to make myself a sandwich about five perhaps ten minutes, rechecked him and found him to be not breathing. My husband administered mouth to mouth resuscitation until the police department arrived about five minutes later. Judge was erred in giving a charge to the jury, and describing mens rea, so a new trial was ordered. Only two states of mine that constitute mens rea and that is intention and recklessness. In April of l979, their family physician, a general practitioner named Love, diagnosed the child, Christopher, as a diabetic and admitted him to hospital where he remained for some weeks. While the child was in hospital, his mother attended classes at a diabetic education centre where she received instruction regarding insulin injections and the impact of diet and exercise on diabetes and diabetics. She also attended in July of 1979 a full week of seminars at a juvenile diabetic clinic to gain an understanding of her son's condition and to learn how to deal with it. There was then evidence upon which the jury could conclude that Mrs. Tutton had made herself competent to deal with her child's illness under general supervision from the family physician. Throughout the son's illne
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