The accused had been drinking and killed four people and injured a fifth taking part in a hayride (riding on bales of hay in a tractor-towed wagon on a public road). The accused passed the hayride, turned and sped towards it on the wrong side of the road with headlights turned off. The jury acquitted after having been informed to look at the subjective element of the accused. The Crown appealed. The Ont. C.A. allowed the appeal and ordered a new trial. The accused then appealed from the C.A. This was heard together with Tutton but this appeal of the accused was dismissed. The McIntyre wing repeated its justification for an objective test in dismissing the appeal.
Why did the subjective wing of the S.C.C. also dismiss the appeal?
Wilson J. — The mental (subjective) element in criminal negligence is the minimal intent of awareness of the prohibited risk or wilful blindness to the risk. The trial judge erred in telling the jury that the subjective element was a “deliberate assumption of the risk.”
R. v. Anderson (1990) 75 C.R. (3d) 50 (S.C.C.)
The accused, distracted, ran a red light and the passenger of the car he hit died as a result of injuries. He was charged with criminal negligence causing death and was acquitted at trial. The trial judge said that neither mens rea nor the consequences of the manner of driving were material to his deciding as to guilt or innocence. The C.A. allowed the Crown’s appeal so the accused appealed again.
Did the trial judge’s comments relating to the relevance of consequences and intention affect the outcome?
No. Appeal allowed; acquittal restored.
On the facts, the trial judge was entitled to come to the conclusion that there was a reasonable doubt the conduct of the accused constituted criminal negligence.
In context, the trial judge’s comment about mens rea being immaterial is a reference to the fact that the Crown did not have to prove intention in this case. The consequences comment referred to the fact that the Crown had not shown (either objectively or subjectively) that based on the circumstances, there was a wanton disregard for the lives and safety of other persons.
Marked Departure Test
R. v. Creighton  3 S.C.R. 3