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Chapter 5

LY205 Chapter Notes - Chapter 5: Forensic Pathology, Childrens Hospital, Expert Witness


Department
Law & Society
Course Code
LY205
Professor
Patricia O' Reilly
Chapter
5

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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.

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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.
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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.
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