W2 - Objective Fault

Question 1

For a subjective Mens era, what must the Crown prove?

Answer 1

the Crown to prove the accused had a positive state of mind, such as intent, recklessness or wilful blindness with respect to the specific offence charged.

Question 2

For an objective mens read, must the Crown prove a positive state of mind?

Answer 2

No

Question 3

Despite a presumption for ___ fault, there will be objective fault where…

Answer 3

subjective, will give way to clear expressions of a different legislative intent

Question 4

What are examples of types of offences that are accepted to have an objective fault standard?

Answer 4

5 categories of offences where objective fault can be found:
A. dangerous conduct offences, like dangerous driving
B. careless conduct offences; careless storage
C. predicate offences with consequences/objective foresight requirement
D. offences based on criminal negligence
E. Duty-Based offences

Question 5

What is the difference between recklessness and negligence?

Answer 5

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

Question 6

True or false: Recklessness can be considered a degree of negligence

Answer 6

False. 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 7

Tutton & Tutton showed that for a charge of criminal negligence:

Answer 7

a modified objective test must be employed

Question 8

What is a modified objective test?

Answer 8

A general allowance must be made for factors which are particular to the accused, such as youth, mental development and education

Question 9

Which case further defined the modified objective standard?

Answer 9

Hundal

Question 10

For a modified objective standard, what is the only thing that can exonerate the accused?

Answer 10

Only a reasonably held belief can operate to exonerate the accused; it is no defence for the accused to claim that they were being careful; the defence will only be available if the belief is reasonably held

Question 11

In an objective test, is the Crown required to prove what was in the accused’s mind?

Answer 11

no

Question 12

What is the mental fault for an objective office?

Answer 12

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.

Question 13

What must the nature of the negligence be for an objective/modified-objective offence?

Answer 13

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

Question 14

What does criminal negligence require?

Answer 14

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

Question 15

3 elements for criminal negligence?

Answer 15

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