Criminal Negligence

• Author: Karen Jokinen/Peter Keen
• Pages: 141-158

141

Criminal

Negligence

8

I. Introduction ............................................. 142

II. Section 219 of the Criminal Code ............................ 143

III. Criminal Negligence: A Challenging Area ...................... 144

A. The Approach to Criminal Negligence in R v Javanmardi .... 144

IV. Descriptions of Actus Reus and Mens Rea ..................... 145

A. Manitoba Approach: Tayfel and Beatty—Actus Reus and

Mens Rea Are Distinct ............................... 145

B. Ontario and BC’s Approach: R v MR, R v Willock, and

R v Kerr—Actus Reus and Mens Rea Are Linked ........... 147

C. Analysis of Dierences in Approach ..................... 149

D. Why Has Criminal Negligence Proved So Challenging to

the Courts? ........................................ 149

E. Broad Agreement ................................... 150

F. Agreement Versus Disagreement ....................... 153

V. Case Law Examples ....................................... 153

A. Criminal Negligence Found or Available ................. 153

B. Criminal Negligence Not Found, but Lesser Oence Found ... 154

C. Criminal Negligence Not Found ....................... 154

D. Criminal Negligence and Party Liability .................. 155

VI. Alcohol, Short of Impairment ............................... 156

VII. Factors to Consider ....................................... 156

VIII. Using Dangerous Operation Instead of Criminal Negligence ...... 157

IX. Sentencing—Criminal Negligence Causing Bodily Harm or Death ... 157

X. Conclusion .............................................. 158

© 2023 Emond Montgomery Publications. All Rights Reserved.

142 Impaired Driving and Other Criminal Code Driving Oences

I. Introduction

This chapter explores the oence of criminal negligence. In the past, this oence

was often used to address serious driving cases because it carried the most significant

penalties and was perceived as the most serious penal negligence oence. Since the

new legislation has increased the sentences for serious driving oences such as dan-

gerous operation/impaired operation causing death or bodily harm, we predict that

as time goes on, the oence of criminal negligence involving driving oences will be

seen less and less.

Before the new legislation, penal negligence oences were said to exist on a con-

tinuum, with criminal negligence being the most serious. The law relating to criminal

negligence developed alongside the law relating to dangerous driving. The dangerous

driving description of mens rea as “a marked departure from the norm” was devel-

oped to explain the distinction between civil negligence, which occurs when there is

a “mere” departure from the standard of care, and penal negligence, which requires

a fault element.1 Criminal negligence was considered more morally blameworthy

than dangerous driving. To distinguish between the two levels of penal negligence

oences, courts described criminal negligence as requiring a “marked and substantial

departure” from the standard of care to be exercised by a reasonably prudent person.2

To summarize, the law of negligence has developed three descriptions of the

departure from the standard of care necessary to find liability:

1. civil liability: a mere departure from the standard of care;

2. criminal liability for dangerous driving: a marked departure from the standard of

care; and

3. criminal liability for criminally negligent driving: a marked and substantial depar-

ture from the standard of care.

Section 662(5) of the Criminal Code3 specifies that the simple and aggravated

forms of dangerous driving are included oences within criminal negligence causing

death.4 As a result, it is not necessary nor advisable to lay a separate count of danger-

ous driving when criminal negligence is alleged, as there is a risk of an inconsistent

verdict.5

1 R v Beatty, 2008 SCC 5 at para 7. The language of “marked departure” in the context of

dangerous driving can be traced to decisions interpreting gross negligence in the 1940s and

appears in criminal cases as early as 1975. R v Lepage, [1975] SJ No 318 (QL) at para 26 (QB);

Girling v Howden, 1949 CanLII 230, [1949] 3 DLR 622 (BCCA).

2 R v JL, 2006 CanLII 805, 206 OAC 205 (CA); R v JF, 2008 SCC 60; R v Sharp, 1984 CanLII

3487, 3 OAC 26 (CA).

3 RSC 1985, c C-46.

4 Criminal Code, s 662(5).

5 R v Al-Kassem, 2015 ONCA 320.

© 2023 Emond Montgomery Publications. All Rights Reserved.