Departures from Subjective Mens Rea

Table of Contents

Departures from Subjective Mens Rea

R. v. Sault Ste Marie 1978 SCC – Strict liability, guidelines for strict/abs/true crime

R. v. Chapin 1979 SCC – strict vs absolute liability

R. v. Kanda 2008 ONCA – application of Sault Ste Marie, policy goals/reasoning

Objective Fault

R v Tutton 1989 SCC CM – modified objective standard in criminal negligence

R v J.F. 2008 SCC - Difference between penal and crim neg

R v Hundal 1993 SCC - applying the modified objective standard

R. v. Beatty 2008 SCC - marked departure + moral blameworthiness

Mens Rea and the Charter

Relevant Charter Provisions:

Reference s.94(2) of the Motor Vehicle Act 1986 SCC – Charter interpretation

R. v. Raham 2010 OCA – Upholds SSM in Charter era, constitutionality presumption

Stigma and the Mens Rea of Murder

R. v. Martineau 1991 SCC – Stigma of murder + s.7 + intent

R. v. DeSousa SCC 1992 – Application to not-murder offences

R. v. Creighton SCC 1993 - Objective MR test

Wholesale Travel Group v. R. SCC 1991 – strict liability + reverse onus

Defences

R. v. Cinous 2002 SCC – Air of reality test

Mistake of Fact

R. v. Kundeus 1976 SCC -

Pappajohn 1980 SCC – honest belief, reasonableness

R. v. Ewanchuk 1999 SCC – communicating consent

Provocation

R. v. Hill 1985 SCC – ordinary person + test from provocation

R. v. Thibert 1996 SCC – air of reality in provocation

R. v. Daniels 1983 NWTCA – past relationship + limitations to the “sudden” requirement

R. v. Tran 2010 SCC – ordinary person + relevance of subjective factors

R. v. Nealy 1986 OCA – looking at mitigating elements collectively

Provocation Summary

Mental Disorder

Statute – Section 16

Definitions

How mental disorder operates

R. v. Chaulk 1990 SCC – “failure to know act was wrong”

R. v. Swain – burden of proof for 16(3)

Mental Disorder vs. Automatism

Automatism

R. v. Rabey 1977 OCA – disease of the mind + internal v. external causes

R. v. Parks 1992 SCC - sleepwalking not a mental illness

R. v. Stone 1999 SCC – MD vs automatism +test for automatism

Self-Defence

R. v. Lavallée 1990 SCC – battered women’s ‘sydrome’ + expert evidence

R. v. Pétel 1994 SCC – mistake doesn’t negate access to defence

R. v. Malott 1998 SCC – clarifies Lavallee on reasonable, BWS

R. v. McIntosh 1995 SCC -

Necessity

R. v. Perka 1984 SCC – elements + moral voluntarism+ excuse v. justification

R. v. Latimer 2001 SCC – narrow defence + proportionality

R. v. Ungar 2002 OCA – successful defence of necessity

Duress

Hibbert 1995 SCC – using the common law + exclusions from s.17

Ruzic 2001 SCC – modifying s.17 – immediacy, physical presence, harm to 3rd party

Departures from Subjective Mens Rea

Only the fed gov can establish a true crime
Prov gov can only create a regulatory offence
If using an offence in the Code assumption is that it is a true crime-> use subjective MR(Beaver, Sault Saint Marie)
If using an act that is not the Code, whether fed or prov, you need to figure out whether it is regulatory or a true crime
Step 1) Are you in a true crime or are you in a realm of a regulatory offense?
Where the statute is silent on MR knowing what type of legislation you have allows you to determine starting presumption for MR
Step 1) Are we dealing with a crime in a prov statute?
If yes= regulatory offense
Step 1) Are we dealing with fed act? (Chapin)
1- Look at the punishment and how serious the punishment is
2- Consider the regulatory purpose
Chapin-doesn’t prohibit hunting, just regulates it
Where the predominant purpose is:
Regulating acts= public welfare offense
Prohibits= criminal

Starting presumptions of MR:

Types of Crime / Actus Reus / Mens Rea / Displace starting presumption of MR? / Defence of due diligence
True crime / Crown needs to prove each elementBRD / Subjective MR (what was in the mind of the accused) proven by the Crown beyond a reasonable doubt / Yes, IF clear statutory language permits / Not allowed
(PWO)/“regulatory” – Overall (see below for abs v strict) / Crown needs to prove beyond reasonable doubt / No MR proof required / Yes, by clear statutory language (Sault Ste Marie)-> becomes true crime / Yes, for strict liability not for absolute liability
No, if statutory language alters MR requirement
PWO: Strict liability (e.g. public welfare- pollution)- only need AR / Crown needs to prove beyond reasonable doubt / No MR / Allowed- did everything he could to avoid the offense (Sault Ste Marie)
Burden of proof is on the accused to prove defence on balance of probabilities
PWO: Absolute liability (e.g. public welfare- meat contamination) / Crown needs to prove beyond reasonable doubt / No MR / Not allowed

Step 2) When working with a PWO, analyse the regulatory scheme to figure out the required proof for MR
For PWO starting presumption is strict liability
If clear statutory language (ex. uses “wilfully”, “intent”, “purpose”, “knowledge”) of act permits, changes MR to true crime standard (subjective MR)
To figure out whether strict or absolute liability (Sault Ste Marie):
1- overall regulatory pattern or scheme
2- subject matter if the legislation
3- **gravity of the penalty**
4- precise language used in the offence creating section
*In applying these factors consider the judicial repugnance for absolute liability

R. v. Sault Ste Marie 1978 SCC – Strict liability, guidelines for strict/abs/true crime

A was charged with causing or permitting pollutants to be discharged into clean water contrary to the Ontario Water Resources Act.

Before Sault Ste Marie, there would have only been absolute liability and true crime

Now there is strict liability (allows defence of due diligence)
Why?
Regulating an activity because it may cause public harm, want to provide an incentive to behave in a way to avoid causing public harm

Starting presumption for PWO is strict liability, with the following burden/standard of proof:

Crown must establish actus reus beyond a reasonable doubt
Crown need not establish mens rea;
A may prove on the balance of probabilities that s/he took all reasonable care, which involves a consideration of what the reasonable person would do in the circumstances. (Defence of due diligence)
Reasonable and honest belief about a state of affairs that is in reality wrong
Ex. thought they had a license and complied with it, but because of an administrative error they didn’t actually have a license

On absolute v. strict liability:

Most often court finds for strict liability
Rare that they find absolute liability
Unless:
The penalty is very low (ex. 25$ for jay-walking)
The statutory language does not allow for defence of due diligence/ strict liability
Charter s. 7
Absolute liability and prison cannot be combined
So the court presumes strict liability if there is a sentence of imprisonment in the offense (Motor Vehicle Ref)

R. v. Chapin 1979 SCC – strict vs absolute liability

A was convicted of hunting within one quarter mile of a place where bait was deposited, contrary to the Migratory Birds Regulations. She was unaware of the presence of grain

SCC determines that it is a PWO (application of PWO test)
1- Not a true crime-> based on severity of punishment + lack of words that would import in subjective MR
2- Whether there is absolute liability or strict liability (Sault Ste Marie)
Look to the punishment-> 6 month prison charge
Serious – implies that there needs to be some possible defence
Look to purpose of the Act-> regulating hunting/baiting, not prohibit
Lack of feasibility of compliance as an absolute liability offence-> would burden the hunter to walk around looking for bait piles = impractical
3- Since strict liability is found, defence of due diligence is available
Court found that she did exercise due diligence:
Grain would have been difficult for her to see, conservation officer barely saw
Familiar with the hunting club, club did not use bait, she had no reason to expect that there would be bait
Acquitted - would be unreasonable to convict on the facts.

R. v. Kanda 2008 ONCA – application of Sault Ste Marie, policy goals/reasoning

A was charged with driving a motor vehicle while a child under 16 was not wearing a seatbelt. The issue in this case is whether a person caught driving a car containing a child who is not wearing a seat belt can raise a defence of due diligence: He testified that his son had unbuckled the belt at some stage, and that A had checked the belt before he began driving. A was acquitted under defence of due diligence.

Deterrent effect of defence of due diligence (as opposed to strict liability)
Strict liability as encouraging good behaviour:
The classification of strict liability strikes an appropriate balance between encouraging drivers to be vigilant about the safety of child passengers in their vehicles and not punishing those who exercise due diligence with respect to children’s seat belts.

Objective Fault

What the reasonable person should have done, foreseen or known

When do you use objective mens rea?

Use objective MR if the provision uses “negligence” (s.219)-> “ought to know”

Use objective MR if the provision uses “dangerous”, “without reasonable care”, “unlawful act” (all manslaughter provisions)

S.215(2)- In Naglik SCC determined that objective MR be used for this offence

Penal negligence and criminal negligence are judged on a modified objective standard (Hundal, J.F.).

What is the difference between civil negligence, penal negligence, and criminal negligence?

What are the relevant differences in the actus reus and the mens rea in crimes of objective fault?

How do we reconcile conflicting SCC decisions in this area?

(Note: constitutional dimensions of moral blameworthiness poke their head in here)

Civil, Penal, and Criminal Negligence

Civil negligence = the tort of negligence. How much of a breach does there need to be? It has to be a breach of a duty of care -> and the breach has to breach the reasonable standard of care for the specific duty that applies.

The standard is reasonableness / reasonable foreseeability.
In other words, any breach, however minor, will create liability, if proved to a balance of probabilities.

Penal Negligence. What is the standard here?

Marked departure from the standard of conduct expected of a reasonable person in all the circumstances. (Beatty, J.F)(A small slip won’t trigger this liability: that’s the point of Beatty.)
This will engender a criminal consequence.
Includes dangerous driving, perhaps some other crimes as well as criminal negligence
Has a constitutional dimension because of the possibility of criminalization
Modified objective MR (Hundal)

Criminal Negligence. This is a subset of penal negligence.

defined in s. 219, but charged under section using the words “criminal negligence” or it’s penal negligence
S. 220-221 provide the offenses under criminal negligence.
Marked and substantial departure from the expected standard of care. (Tutton, J.F.) -> More substantial than penal negligence
Attachs the sigma of criminal conviction
Modified objective standard (Hundal, J.F.)

How do we identify a crime of objective mens rea?

Rely on precedent, which the best place to start:

s. 249 – Beatty, Hundal

s. 219 – Tutton (McIntyre’s judgment); (R. J.F.)

s. 215(2) –Naglik, where the SCC held that s. 215(2) was objective (necessaries of life)

If no precedent, argue by analogy & look to hint words.

Look to the statutory language – “without reasonable care” (Tutton); “unreasonable” (Tutton); “negligence” (Tutton); “duty” (Tutton); “dangerousness” (Beatty) “conduct which shows wanton or reckless disregard” (Tutton)

How do we determine the standard for mens rea?

We will make the reasonable assumption that Charron’s majority in Beatty (SCC 2008) represents the current state of Canadian law.

The place where the law is undecided is whether the general test for penal negligence (The Beatty/Hundal test) is the same for the test of criminal negligence. The question is: does criminal negligence require a higher mens rea standard? There is some case law to suggest it does.

The phrase used is “marked and substantial departure”.
Does this signify a higher standard? It is contested whether this distinction exists.
Discussed but not resolved in R. v. J.F. (though the court seemed favourable to it)
The outcome? Three standards of liability for negligence – civil, penal, and the most serious, criminal negligence

Section 249 is the section around which Beatty and Hundal revolve. It is the exemplar for penal negligence:

Actus Reus. What Charron tells us in relation to the actus reus of s. 249 is that the trier of fact must be satisfied BRD that, viewed objectively, the accused was “driving in a manner that was dangerous to the public, having regard to all the circumstances, including … the place the vehicle is being operated and the amount of traffic …”

The focus is on the “manner of driving”, not the consequences of the driving.
“If drinking and driving and running a red light was not a marked departure from the standard, it did not become so because a collision occurred” R v. Anderson

Mens Rea. The mens rea is judged on a “modified objective standard.” This has two components: (1) that the conduct amounted to a “marked departure” from the standard of care that a reasonable person would observe in the accused’s circumstances; and (2) the possibility for exculpatory explanations.

(1) “Marked Departure” from the standard of care that a reasonable person would observe in the accused’s circumstances

Short of incapacity to appreciate the risk or incapacity to avoid creating it, personal attributes such as age, experience, and education are not relevant (beatty citing Creighton)
The lack of care “must be serious enough to merit [criminal] punishment”
“conduct that occurs in such a brief time frame in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence spectrum” R .v Willock
In Beatty, the trial judge found “no evidence of speeding, no evidence of alcohol or drugs, no evidence that he was driving erratically or improperly… and the crash occurred within a split second”
Driving, though inherently risky, is a legal activity that has social value. If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals person who are really not morally blameworthy.
Obviously, if the accused, subjectively, intentionally drives dangerously, this will suffice

(2) If a marked departure is found, “the trier of fact must consider evidence about the actual state of mind of the accused, if any, to determine whether it raises a reasonable doubt about whether a reasonable person in the accused’s position would have been aware of the risk created by his conduct” (beatty)

Example defences: sudden onsets of disease or physical disability, reasonable mistakes of fact (the welder)
If the accused offers an explanation for their conduct or omission, then the trier of fact has to be satisfied that a reasonable person would have been aware of the risk and the danger involved in the accused’s conduct in order to convict
This is best shown in Tutton – withholding insulin from a diabetic six-year old clearly constitutes a “marked departure”; the tougher thing is dealing with the parent’s honestly held belief that a miraculous cure had taken place. The court rejected this: they ruled that the honestly held belief must itself be reasonable in order to constitute an excuse.

The modified objective standard – exculpatory explanations

Charron in Beatty says there is a second way in which this is a modified objective test (i.e. over and above the “marked departure”): it allows for a defence of exculpatory explanation. If you had a sudden heart attack, were stung by a bee, took a new medication, or something else happened – an intervening event – the question becomes, could a reasonable person have foreseen the risk of that event, and if the answer to that question is no, could a reasonable person have done anything to avert what happened?

The court characterizes this analysis as a departure from a strict objective test – which is why they call it a “modified” objective test. To an extent, it takes account of the circumstances in which the accused found him or herself.

Charron notes that personal characteristics – such as age, inexperience – will not modify the expectations. [Good question: is this only for driving? Emma says that in Hundal it seemed so, but in Beatty they seem to open it up to other situations.]

R v Tutton 1989 SCC CM–modified objective standard in criminal negligence

A (x2) stopped giving their diabetic son insulin because they believed he had been cured by the holy spirit. They were charged with manslaughter under [ss. 215 & 219].

Defense claimed that “recklessness” is subjective standard, they could demonstrate that they honestly believed that the boy was cured
SCC:
“wanton and reckless regard”= reasonableness, but need high departure from standard of care
Therefore the crown has to prove marked and substantial departure beyond a reasonable doubt
If the crown does so, it is open to the accused to defend by proving that they were relying on honest and reasonable belief
In this case court found that Tutton’s belief was honest but not reasonable
Lamer J: In applying the “objective norm”, there must be allowance for factors particular to A, such as youth, mental development and education.

R v J.F. 2008 SCC - Difference between penal and crim neg

A was convicted by a jury of “manslaughter by criminal negligence” and acquitted of “manslaughter by failing to provide the necessities of life”. Child killed by foster mother, father was charged with criminal negligence in failure to protect the child from his spouse

The jury’s verdict answered ‘“yes” and “no” to essentially the same question.
On failure to provide the necessities of life, Crown had to prove marked departure from the standard of conduct of a reasonable parent.
On criminal negligence, Crown had to prove marked and substantial departure.
Convicting JF of the higher mens rea (criminal negligence) while acquitting on the lower (penal negligence) is incomprehensible.
A must be acquitted.

R v Hundal 1993 SCC - applying the modified objective standard

A hit another car and killed the driver after running a red light. His truck was overloaded and he stated that he had been unable to stop for the light but had honked. He was charged with dangerous driving under [s.249].

Issue - whether subjective MR is required to prove dangerous driving and whether dangerousness is measured in a moment or in a collective act
Whether the crown has to prove that the accused knew the act was dangerous while driving
Court says judge objectively, based on what a reasonable person would have done
Reasonable person test, which is objective, but that reasonable person is modified by some of the personal characteristics of the accused (modified-objective test)
Generous allowances in considering personal characteristics, such as:
Stroke/ heart attack-> unexpected, reasonable person cannot predict therefore cannot prove marked departure from reasonable person, not voluntary
Honest and reasonable perception of info received- welder example (para 40), relies on reasonable information
Whether in order to determine a marked departure, should consider the moment or the circumstances leading up to the dangerous act
Court says should look at the pattern of behaviour, not just the moment
In this case the truck was overloaded and he went through several red lights before hand

If A offers an explanation, the trier of fact must consider whether a reasonable person in A’s shoes would have appreciated the risk and danger inherent in that course of action.
McLachlin J: objects to the language “modified objective test” but agrees that regard should be had to all the circumstances, including what A knew, in determining whether A was criminally negligent.

R. v. Beatty 2008 SCC - marked departure + moral blameworthiness

A was charged with dangerous operation of a motor vehicle causing death contrary to s.249. A’s truck crossed the centre line of a highway into the path of an oncoming car, killing all three occupants. A was found to have had a momentary lapse of attention.