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FACTS

This is an important case.  The accused injected cocaine into the body of the deceased.  The Crown argued that the accused was guilty of manslaughter as the death was the direct result of that unlawful act.  The accused was convicted at trial and the C.A. upheld this.  The common law’s definition of unlawful act manslaughter required the objective foreseeability of the risk of bodily harm which is neither trivial nor transitory.  The foreseeability of death is not required. The S.C.C. confirmed that the common-law rule does not violate s. 7 of the Charter.

ISSUE

What is the meaning of negligence in the criminal law?

PRINCIPLE

For negligence to qualify in criminal matters, it must constitute a “marked departure” from the standard of the reasonable person.  Personalizing the objective test to the point where it devolves to a subjective test would erode the minimum standard of care which Parliament has laid down by enactment of offences of manslaughter and penal negligence.  Incapacity to appreciate the risk which an activity entails is the only exception.

NOTES

The Court was divided 5:4 over whether personal factors should be factored into the objective test.  I’m glad those who wished to limit personal factors won because the minority’s proposals are existentially impossible to fulfil.

Constructive liability

R. v. Desousa [1992] 2 S.C.R. 944

FACTS

The accused was involved in a fight and he allegedly threw the bottle which broke against a wall and injured a bystander on the arm.  He was charged with unlawfully causing bodily harm. The judge quashed the indictment because the section included offences of absolute liability and allowed the possibility of imprisonment, and therefore contravened s. 7 of the Charter.  C.A. overturned acquittal and accused appealed.

ISSUE

Does the impugned section violate s. 7 of the Charter?

HELD

No. Appeal dismissed.

RATIO

The S.C.C. proposes that we read down the impugned section so that it excludes all offences based on absolute liability and which have constitutionally insufficient mental elements of their own.  They also read into the term “unlawfully” the requirement that an act be at least objectively dangerous. Interpreted this way, the impugned section complies with the Charter.

R. v. Creighton [1994] (revisited) 3 S.C.R. 3

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