Class 2: Objective Fault/Criminal Negligence 100%

Question 1

The words “ought to, reasonable care, good reason, reasonable ground, reasonable steps, reasonable expected” indicate what type of fault requirement?

Answer 1

When the CC uses these words, it expressly implies an objective standard.

Question 2

For an objective fault requirement, does the crown have to prove a positive state of mind?

Answer 2

No.

Question 3

NOTE FOR FUTURE PHIL.

A) If you see the word ADVERTANCE think of it as AWARNESS

B) If you see the word INADVERTANCE think of it as NOT BEING AWARE

Thus A is what?

Thus B is what?

Answer 3

Thus,

IF YOU ARE AWARE= RECKLESS

IF YOU ARE UNAWARE=NEGLIGENT

Question 4

What does inadvertence mean?

If you are being inadvertent to a risk, then you are being

Answer 4

Not giving attention to something

Then you are being negligent

Question 5

What does advertance mean?

If you are being adverting to a risk, then you are being

Answer 5

giving attention to something.

If you are being adverting to a risk, then you are being reckless

Question 6

What does criminal negligence used to require?

What does it now require?

Answer 6

Prior it was just a marked departure from a reasonable person.

Now, it requires a marked and substantial departure from a reasonable person

Question 7

Is it true that all criminal offences need a subjective fault? How can you rebut this presumption?

Answer 7

While the presumption is that all criminal offences require subjective fault, the court has made clear that the presumption will give way to clear expressions of a different legislative intent.

Question 8

What is objective fault? (NOT MODIFIED)

Does the crown have to prove intent?

What does the crown have to prove?

Answer 8

If someones actions were conducted differently then what a reasonable person would have done.

Proving that the accused intended to do the action is not relevant.

The accused engaged in conduct that was a marked departure from a reasonable person.

Question 9

What is subjective fault/subjective mens rea?

What is the presumption about true crimes?

Answer 9

All true crimes are presumed to require subjective fault.

Subjective mens rea the crown has to prove BRD the accused intended or had a particular state of mind. that they intended to commit the offence in question.

It may also suffice to prove BRD that the accused was reckless or willfully blind. Those are all subjective fault classifications

Question 10

Can you prove recklessness or willful blindness for a subjective fault element generally?

Answer 10

Yes.

Question 11

Are recklessness or willful blindness objective or subjective fault?

Answer 11

Subjective

Question 12

What is the idea behind proving objective mens rea?

Answer 12

The accused engaged in conduct that was a marked departure from a reasonable person. What a reasonable person would have done, what they ought to have known is questions they will ask.

Question 13

Taking into account most criminal offences require subjective fault, what presumption does the court make about legislations that indicate not to apply a subjective test?

Answer 13

Courts have made it clear that the presumption will be secondary if there is clear expressions of a different legislative intent (aka parliament wants objective fault/objective mens rea)

Question 14

Engaging in a course of conduct that is a marked departure, or failing to meet a duty indicates what fault requirement?

Answer 14

Modified objective

Question 15

What does the word “willfully” indicate for a fault requirement?

Answer 15

Subjective fault

Question 16

Is dangerous conduct offences (aka dangerous driving) objective or subjective fault?

Answer 16

Objective fault

Question 17

Is careless conduct offences (aka careless storage of an item like driving around with a gun in the backseat of the car) subjective or objective fault?

Answer 17

Objective fault

Question 18

If an offence requires objective foresight, what type of fault requirement does It require?

Answer 18

Objective fault

Question 19

Is predicate offences with consequences (Manslaughter for example) a subjective or objective fault?

Answer 19

Objective fault

Question 20

Are offences based on criminal negligence modified objective or subjective fault?

How has this changed over 3 cases?

Answer 20

modified objective fault

This changed

TUTTON case was unsure whether objective or subjective

ANDERSON was still unsure

HUNDAL set up criminal negligence as modified objective

Question 21

Does the reasonable person standard change depending on the crime?

Answer 21

Yes. A reasonable doctor is very different than a reasonable mechanic.

Question 22

How does the marked departure standard work?

Answer 22

Consider what a reasonable person would do. After this, consider what the accused did and if it was a marked departure

Question 23

Are offences based on duty-based offences (for example failing to give children basic of life) subjective or objective fault?

Answer 23

Objective

Question 24

Is it correct to say that recklessness is a degree of negligence?

Why?

Answer 24

Wrong to suggest that recklessness is a degree of negligence.

Negligence = inadvertence (not paying attention to or not acting in the same way as a reasonable person would in the circumstances

recklessness = advertence (aware of risk but proceeds anyways).

Question 25

Case of O’Grady v Starling 1960

Facts: The accused was charged with careless driving under provincial legislation and also charged with driving dangerously under CC. Accused challenged provincial law saying it was ultra vires and it was an improper charge.

Issue:

Explain recklessness and negligence.

How are they different?

This case stated that criminal negligence was subjective rather than objective.

Has this changed?

Answer 25

Holding:

There is a difference between recklessness and negligence. Which is the difference between advertence (attentive or paying attention to) and inadvertence (lack of attention). They are opposed.

Wrong to suggest that recklessness is a degree of negligence.

Negligence = inadvertence. Basically, not paying attention to or not acting in the same way as a reasonable person would in the circumstances.

Recklessness = Advertence. aware of risk but proceeds anyways.

Has changed to modified objective.

Question 26

What is the difference between advertance and inadvertence in criminal law?

Which one is recklessness and which one is negligence?

Answer 26

Advertance is attention or paying attention to (recklessness)

Inadvertence is a lack of attention (negligence)

Question 27

What is recklessness?

Answer 27

Recklessness is awareness of a risk but disregard of it.

Reckless is advertanceness

Question 28

What is negligence?

Answer 28

Negligence is someone doing something without that, without intent to do it.

Negligence is inadvertanceness

Question 29

Tutton v Tutton

Facts: Parents to 5 year old who needed insulin. they stopped injecting into him. The mother believed that she had received a message from god that he was healed. Son died. They were charged with manslaughter and failure to provide necessaries for life.

Issue:

1) Is negligence a valid fault standard generally?

2) What is negligence?

3) Is criminal negligence objective or subjective fault?

Answer 29

Holding:
The court considered the “test” for criminal negligence

McIntyre J held that: Courts have already accepted that negligence is a constitutionally valid fault standard.

Negligence connotes the opposite of thought directed action. it is not what they forgot to do, or did not do. What we are punishing is not a particular state of mind, but rather the conduct and results of mindless actions.

The test required is one of reasonableness; and proof of conduct which could be expected of a reasonably prudent person in the circumstances will justify a conviction of criminal negligence

Court unsure whether criminal negligence is objective or subjective at this point.

Question 30

Negligence is the xxx of thought directed action?

Answer 30

Negligence is the opposite of thought directed action.

Focus on macintrye

Question 31

What is a modified objective test?

Does it take into account personal factors?

Answer 31

Taking in account if the accused’s conduct constituted a marked departure from that of a reasonable person

The modified tests expands the objective test to include room for the accused to raise a doubt and to show that they did what a reasonable prudent person would have done in the circumstances.

NO.

Question 32

Does the modified objective test take into account personal factors of the accused?

Answer 32

It does not take into account personal factors.

However, it does take into account surrounding events and context, but not personal factors.

Question 33

R v Anderson 1990

Facts: Accused ran a red light, was over the legal limit of alcohol. Other than running the red light, no evidence of bad driving. He killed someone. Court had to determine whether criminal negligence was objective or subjective.

Issue: No real issue. Shows how the court struggled in determining this.

Bonus points:

If the test for criminal negligence is subjective what is the test?

If the test for criminal negligence is objective, what is the test?

Answer 33

Holding:

Within a year of Tutton. Court still seems to be stuck on whether the test for criminal negligence should be subjective or objective.

If subjective, then not only marked departure from norm but must show accused showed wanton or reckless disregard for the lives and safety of others.

If objective, then test is marked departure from norm (from ordinary person in the circumstances).

Court decides since trial judge found no marked departure from norm, then criminal negligence not made out on either objective or subjective ground

Court didn’t really clarify whether test should be subjective or objective.

Still stuck with the split found in Tutton

Question 34

R v Hundal 1993

Facts: Accused charged with dangerous driving causing death. He ran a red light driving an overloaded dump truck

Issue:

What mens rea required for the offence of dangerous driving?

What is the test for criminal negligence?

Whats the key word for criminal negligence?

Whats the key word for criminal negligence in the US?

What does the modified objective test take into account?

Answer 34

Liability for dangerous driving is negligence.

Court decided unanimously that this was an objective fault crimeThe court concluded that the nature of driving offences suggests that an objective, or more specifically a modified objective test, is to be employed

The question to be asked is not what the accused intended, but rather, viewed objectively, whether the accused departed markedly from the standard of care of a reasonably prudent driver.

“Modified objective test” : one that takes into consideration that events take place within other events and the surrounding circumstances should be considered to determine what the reasonable person standard is, and to determine if the accused’s conduct constituted a marked departure from that of a reasonable person

CAN is marked departure
US is gross deviation

The court in this case made it clear that for criminal negligence, the mens rea required is when there is a marked departure from what a reasonable person would do is when you have criminal negligence.

Question 35

Is a modified objective test a mix of subjective and objective fault?

If not explain.

Answer 35

This is not an amalgamation of objective and subjective fault tests

On the objective test, the Crown is not required to prove or establish what was in the accused’s mind as a matter of fact

The test ensures that jurists take into consideration all relevant circumstances in the events surrounding the alleged offence and to give the accused an opportunity to raise a reasonable doubt about what a reasonable person would have thought in the particular situation in which the accused found himself

Question 36

Claiming a mistake of fact defense, what are the two factors the accused would need to prove assuming it is a general intent crime?

Answer 36

The accused would need to prove that any mistaken belief as to a fact to be a defense, the belief had to have been

1) Honestly Held and

2) Reasonable

Question 37

What is a legal duty for criminal negligence?

Answer 37

A duty a person may have that they were reckless about

Question 38

How do you conceptually use the modified objective test?

Do you look at there personal factors?

Answer 38

Objective test cannot happen in a vacuum. must be assed in the context of other events, and the circumstances the accused found themselves in.

You do NOT look at there personal factors/qualities.

Question 39

Consider this example:

A welder engaged to work in a confined space believing from the assurance of the owner, there is no explosive materials nearby. Someone dies. In his mind, he conducted himself reasonably.

That welder should be entitled to have his perception considered if a death happens.

He gets charged for criminal negligence.

Is this reasonable? Is this a marked departure? Is it criminal negligence?

Answer 39

This is reasonable.

Not a marked departure

Not criminal negligence he did not do anything that was a marked and substantial departure

Question 40

When dealing with objective fault, the test is always?

Answer 40

A marked departure from reasonable conduct

Question 41

What is a modified objective test?

Answer 41

“Modified objective test” – one that takes into consideration that events take place within other events and the surrounding circumstances should be considered to determine what the reasonable person standard is, and to determine if the accused’s conduct constituted a marked departure from that of a reasonable person

Question 42

R v Creighton 1993

Facts: The accused was an experienced drug user. He injected cocaine into a willing woman. She stopped breathing. He refused to call an ambulance. She died.

Questions:

What does the subjective test entail?

What does the objective test entail?

How much weight should be given to the personal characteristics of the accused?

For criminal negligence, what is required?

Answer 42

Subjective mens rea requires that the accused has intended the consequences of his or her acts, or that knowing the probable consequences of those acts, the accused has proceeded recklessly in the face of the risk. The requisite intent or knowledge may be inferred directly from what the accused said or says about his or her mental state, or indirectly from the act and its circumstances. It is concerned with what was actually going on in the mind of the accused at the time in question.

Objective mens rea is not concerned with what the accused intended or knew. Rather, the mental fault lies in a failure to direct the mind to a risk which the reasonable person (the ordinary prudent person in the circumstances) would have appreciated. Objective mens rea is not concerned with what was actually in the accused’s mind, but with what should have been there, had the accused proceeded reasonably.

Personal characteristics are not taken into account when considering the reasonable standard except if an accused lacked the capacity to understand the risk flowing from their actions. Then they can be excused. No personal factors, such as age, race, gender, poverty and experience, can be considered except where they relate to incapacity (were they capable of appreciating the risk of harm flowing from their conduct.)

The negligence must constitute “marked (significant) departure” from the standard of the reasonable person (that’s the actus reus).

Question 43

Can a small departure from reasonable conduct be enough?

Answer 43

No it requires a marked departure (Aka a big one)

Question 44

R v Beatty 2008

Facts: The accused was charged with three counts of dangerous operation of a motor vehicle causing death. Pickup truck he was driving for no apparent reason suddenly crossed the solid centre line into the path of an oncoming vehicle killing all three occupants.

Accused testified he had no idea what happened but he must have lost consciousness.

Issues:

1) Is the test modified objective or subjective for criminal negligence?

2) What is needed for a criminal negligence claim?

3) Does the crown have to prove a positive state of mind?

4) Would these seconds he claimed of unconsciousness be criminal negligent?

Answer 44

1) It is a modified objective

2) Requisite mens rea may only be found where there is a marked (significant) departure from the standard of care expected of a reasonable person in the circumstances of the accused. This modification to the usual civil test for negligence is mandated by the criminal setting. Only where there is a marked departure will the conduct demonstrate sufficient blameworthiness to support a finding of criminal liability.

3) It means that, unlike offences that can only be committed if the accused possesses a subjective form of mens rea, it is not necessary for the Crown to prove that the accused had a positive state of mind, such as intent, recklessness or wilful blindness. This does not mean that the actual state of mind of the accused is irrelevant.

4) No. If the trier of fact is convinced beyond a reasonable doubt that the objectively dangerous conduct constitutes a marked (significant) departure from the norm, 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 this kind of conduct. If there is no such evidence to raise a reasonable doubt the court may convict the accused.

Question 45

Modified objective versus subjective.

What is the difference in regards to what the crown has to prove for the mens rea component?

Answer 45

On the objective test, the crown IS NOT REQUIRED to prove or establish what was in the accused’s mind as a matter of fact.

Question 46

How do you apply an objective test?

If a reasonable person would have foreseen the risk of harm, is the mens rea proven?

Answer 46

The legal standard of care is always the same - what a reasonable person would have done in the circumstances. The actual (de facto) standard of care however, may vary with the activity in question and the circumstances in the particular case. (

If a reasonable person in the circumstances would have foreseen the risk of harm from their actions then the necessary mens rea has been proven.

Personal characteristics are not taken into account when considering the reasonable standard except if an accused lacked the capacity to understand the risk flowing from their actions. Then they can be excused.

No personal factors, such as age, race, gender, poverty and experience, can be considered except where they relate to incapacity (were they capable of appreciating the risk of harm flowing from their conduct.

Question 47

Any crime that is objective in nature AND has a chance of imprisonment uses what fault standard?

Answer 47

Because of Beaty, it is now a modified objective standard.

Question 48

How did the tests change for objective fault from Creigton and Beatty?

Answer 48

Creigton made it so it was just objective standard

Beatty made it so that it is a MODIFIED objective standard

Question 49

When dealing with negligence, what is required?

What fault test?

Answer 49

A marked departure from what is reasonable from the standard of a reasonable person.

Objective test

Question 50

Hypothetical

If a police officer is charged with criminal negligence. the question would be what would a …..

Answer 50

Reasonable police officer have done in this situation, and was the police officers actions a marked departure from the standard of car

Question 51

R v F.J.

Facts: M was four years old when he died in his foster home from multiple blunt traumas to his head. M’s body was extensively bruised. M’s foster mother confessed to beating M and pleaded guilty to manslaughter. J.F.,

M’s foster father, was charged with manslaughter by criminal negligence and manslaughter by failing to provide the necessaries of life. He was convicted by a jury on the first count but acquitted on the second. He appealed the conviction.

1) How did this case change the test for criminal negligence?

2) What are the three degrees of objective fault requirement?

Answer 51

Criminal negligence requires proof of a marked (significant) “and” substantial departure from the conduct of a reasonably prudent person

This case has caused there now three degrees of objective fault requirements,

1) due diligence, with the onus on the defence for regulatory offences. Standard of simple negligence like that applied for the tort of negligence (civil standard of negligence)

2) a marked (significant) departure from the objective norm (Beatty) (dangerous driving for example)

3) a marked (significant) and substantial departure from the objective norm for offences based on criminal negligence

Question 52

R v Javanmardi

Facts: naturopath injected person with magnesium compound and they died. The cause of death was septic shock.

Charged with unlawful act manslaughter and criminal negligence causing death after giving naturopathic treatment which led to death of 84-year-old victim

Issue: was it proper for the judge to take into factors the training and qualifications of the accused?

Was it proper to apply the standard of a prudent naturopath?

Answer 52

SCC said it was proper for trial judge to consider the training, qualifications and experience of the accused. Majority acknowledged test applied in Creighton, but expanded the test by stating there can be an “elevated de facto standard of care” taking into account the nature of the activity

In this case, proper to apply the standard of a reasonably prudent naturopath in the circumstances.
Somewhat of a modification of the test in Creighton, but not a total change

Question 53

What is exculpatory evidence?

What is inculpatory evidence?

Answer 53

Inculpatory is admitting to it (I am guilty) as evidence

Exculpatory is evidence that gives you a defence (I was not there)

Question 54

How has the test for criminal negligence changed with the case of R v. F(J)?

Answer 54

Before it was just a marked departure.

Criminal negligence now requires proof of a marked (significant) “and” substantial departure from the conduct of a reasonably prudent person

Question 55

For an objective test, does the standard of care that one is being processed under always the same?

Answer 55

No. A standard of care however, may vary with the activity in question and the circumstances in the particular case.

Question 56

Why do courts use the words marked departure when doing a objective test?

Answer 56

Why marked departure? Because criminal fault must be based on conduct that merits punishment.

Question 57

What did the Beatty case change in regards to objective fault crimes when there is a chance of imprisonment?

Answer 57

As a result of the ruling in this case the test which applies to any crime requiring objective fault where there is a risk of imprisonment must apply the modified objective test as described in this case

Question 58

What does criminal negligence NOW require?

Answer 58

Criminal negligence requires proof of a marked (significant) “and” substantial departure from the conduct of a reasonably prudent person

Question 59

The words “ought to, reasonable care, good reason, reasonable ground, reasonable steps, reasonable expected” indicate what type of fault requirement?

Answer 59

When the CC uses these words, it expressly implies an objective standard.

Question 60

Example of dangerous driving, and how the modified objective test would be used– Freebie:

Take for example a driver who, without prior warning, suffers a totally unexpected heart attack, epileptic seizure or detached retina.

As a result of the sudden onset of a disease or physical disability the manner of driving would be dangerous yet those circumstances could provide a complete defence despite the objective demonstration of dangerous driving.

Answer 60

This shows that he did have a marked departure from a reasonable person as he drove terribly.

Then the modified comes in and takes in the circumstances that he had no control and this acts as a exculpatory evidence of his innocence

Question 61

Example 2 of dangerous driving and how the modified objective test gets applied

Similarly, a driver who, in the absence of any warning or knowledge of its possible effects, takes a prescribed medication which suddenly and unexpectedly affects the driver in such a way that the manner of driving was dangerous to the public, could still establish a good defence to the charge although it had been objectively established.

Answer 61

Objectively he had a dangerous departure from reasonable conduct

but the modified gets applied as he had taken medication that fucked him and thus isn’t fully liable