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ANSWER

A person is reckless under the Criminal Damage Act 1971 when:

1.

he does an act the creates an obvious risk that property will be destroyed and damaged;

2.

when committing the act, he has given no thought to there being such as risk or has recognised the risk and committed the act anyway.

NOTES

Once again, English Courts use an exclusively objective test for recklessness and there was a dissent by Lord Edmund-Davies that a jury cannot convict when something has never crossed the mind of the accused.  He goes on to say that when a defendant “closes his mind” to a risk, this may prove fatal, again indicating that English Courts conflate the doctrines of recklessness and wilful blindness.

Negligence

R. v. Tutton and Tutton [1989] 1 S.C.R. 1392

FACTS

Religious couple thinking God could cure the ailments of their 5-year-old son failed to administer the insulin they were told he needed. They were charged with manslaughter for causing the death of their son by criminal negligence.  The S.C.C. unanimously confirmed the Ont. C.A. order of a new trial but split 3-3 (inconclusively) on the test for criminal negligence.

ISSUE

What is the test for criminal negligence?

ANSWER

McIntyre, L’Heureux-Dubé and Lamer: We must employ the objective test where criminal negligence is considered because it is the conduct of the accused, not his intention or mental state, which we examine in this inquiry.  If we don’t, the distinction between a traditional mens rea offence and one of criminal negligence will become blurred. (E.g. difference between murder and manslaughter)

Wilson, Dickson and LaForest: The test should consist of seeing if there was a breach of an objective standard and whether the Crown proved that the accused had any degree of guilty knowledge. Section 202 of the Criminal Code is notoriously ambiguous and the S.C.C. should be most reluctant to interpret a serious criminal offence as an absolute liability offence without clear statutory language.

Waite v. R. [1989] 1 S.C.R. 1436

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