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ISSUE

Does the objective test for unlawful act manslaughter require reasonable foresight of death or only reasonable foresight of bodily harm?

PRINCIPLE

Death is a serious consequence and therefore the mens rea that the common law has adopted—foreseeability of harm—is entirely appropriate to the stigma associated with the offence of manslaughter.

The thin-skull rule is a useful principle in helping us recognize that the risk of bodily harm is not appreciably different from the risk of death because the wrong-doer must take his victim as he finds him.

There is no authority for the proposition that the mens rea of an offence must always attach to the precise consequence which is prohibited as a matter of constitutional necessity.

R. v. Krushel (2000) 31 C.R. (5th) 295 (Ont. C.A.)

FACTS

Appellants were convicted of criminal harassment under s. 264(2)(c). Council for Krushel argued that s. 264 violated s. 7 of the Charter because 1it is impermissibly vague in that it fails to give sufficient notice of what conduct is prohibited; and 2it fails to require that the accused have the intention to cause the victim to fear for their safety (the “constructive liability argument”).

ISSUE

Does s. 264 of the CC violate s. 7 of the Charter?

HELD

No. Appeal dismissed.

RATIO

Following the principle in Desousa, given that s. 264 contains a sufficiently blameworthy element in the actus reus to which the culpable mental state attaches, foresight of causing actual fear is not required to hold the accused responsible.  Section 264 is not too vague because it permits the framing of a meaningful legal debate with respect to its objectives.

R. v. Barron (1984) 39 C.R. (3d) 379 (Ont. H.C.)

FACTS

Barron, a teenager, threw a party at his grandmother’s house while the latter was away.  Other teens came and they brought beer and consumed it. Barron and the deceased, a teen, were upstairs and decided to go downstairs and “streak” the girls at the party. The deceased changed his mind at the top of the stairs and Barron gave him a push to egg him on. The push caused the deceased to lose his balance and tumble to his death.

ISSUES

Did the push constitute an unlawful act (i.e. an assault) which caused the boy’s death?  If not, was there another unlawful act?  If not, was the accused criminally negligent?

HELD

Accused convicted of manslaughter.

RATIO

The accused was criminally negligent when he failed to give thought to the obvious and serious risk of severe bodily harm to his friend.

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