Fault and Guidance
| Author | Michael Plaxton |
| Pages | 370-404 |
[ 370 ]
cha pter 10
FAULT AND G UI DANCE
A. INTRODUCTION
My overarching theme in this book has been that, in the eld of sub-
stantive criminal law, Parliament takes the lead role; courts take a
supporting role. This position may seem counter-intuitive in the
context of fault requirements. The Criminal Code is oen silent, at
best opaque, arguably inconsistent, with respect to the “mental ele-
ment” of criminal oences. Surely, in this context, the courts have a
virtually free hand in deciding what the fault requirement for a given
oence will be.
But matters are not so simple. Criminal oences target particular
wrongs, and the nature of the wrong targeted by a given oence will
restrict the range of fault requirements that Parliament could have
thought appropriate. Thus, the Supreme Court has concluded that
certain oences — most notably, criminal negligence — must have
objective fault elements, notwithstanding the courts’ traditional sus-
picion of negligence-based oences. Moreover, as I will explain, fault
requirements may undermine the guidance function of oences to
some extent. And so the Supreme Court has developed a variety of
doctrines and concepts, intended to prevent this from occurring.
These include the doctrine of wilful blindness and the distinction
Criminal Code, RSC , c C- [Criminal Code].
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Fault and Guidance
between general and specic intent. Furthermore, as we will see in
Chapter , it explains the Supreme Court’s consistent (at least since
Martineau) rejection of the principle of symmetry.
B. A SOFTER PRESUMPTION OF SUBJECTIVE FAULT
My rst observation is that Parliament is free to cra oences that tar-
get wrongs of inadvertence as well as advertence, and that the courts
regard themselves (rightly) as bound to construe the fault require-
ment of such oences accordingly. That is an idea that was openly
challenged in the early Charter era. But the modern view is that there
is nothing extraordinary about Parliament creating oences that
require proof of objective fault.
The (rebuttable) interpretive presumption is that Parliament
intended to target courses of action undertaken with a particular sub-
jective state of mind. To appreciate why that is, it is important to get
a sense of the sheer breadth of the guidance Parliament seeks to give.
By and large, Parliament has used the criminal law to lay down general
guidelines for social interaction. Thus, the principal aim has been to
prescribe “rules” for citizens relating to one another as citizens, and
not as individuals who relate to each other as, for example, parent and
child, spouse and spouse, employer and employee, doctor and patient,
nurse and patient, etc. These relationships are more thickly drawn,
and oen entail special obligations not owed to others. Moreover,
the aim is not typically to address individuals who have voluntarily
assumed additional obligations to others — for example, by giving
an undertaking under section of the Code. Finally, the principal
aim has been to articulate guidelines for citizens who are engaged
in unregulated activities; in which they are thought entitled to partici-
pate without any special licence or authorization by the state. When
an individual chooses to participate in a regulated activity, such as
driving or the sale of food, he or she may assume special obligations.
R v Martineau, [] SCR .
R v ADH, SCC [ADH].
Some of these points would arguably apply to some extent to regulatory oences as
well. See Chapter , Section B.
[ 372 ] , ,
The working assumption, then, is that Parliament purports
to guide people who have no special duties or obligations to one
another, except as citizens. Pursuant to the presumption of restraint,
Parliament is not presumed to have intended to impose general dut-
ies of care on citizens. They are, to put it frankly, permitted to be
careless with one another, and even act unreasonably in their deal-
ings with each other. Within limits, citizens are allowed to be jerks
and assholes. That being the case, the fault requirement must be
presumptively read in such a way that the mere absence of attention
or care or reasonableness is insucient basis for condemnation or
punishment. A degree of subjective awareness of legally salient states
of aairs, consequences, and risks will be presumptively necessary.
At the same time, this is only a presumption. Where a given
oence targets those who have assumed special, positive obligations
for any of the above reasons, there is — all other things being equal
— better reason to conclude that Parliament intended to target those
who act carelessly or unreasonably. Furthermore, as we have seen,
the presumption of restraint is itself rebuttable. It is open to Parlia-
ment to use the criminal law to reform the general terms of social
interaction — for example, to combat widespread norms supporting
exploitation or abuse of vulnerable persons. Thus, we must always
be alert to the particular language, context, and intentions behind a
given oence provision. The analysis in ADH is instructive.
In ADH, the Supreme Court was asked to interpret the fault
requirement for section of the Criminal Code. That provision
states: “Every one who unlawfully abandons or exposes a child who is
under the age of ten years, so that its life is or is likely to be endan-
gered or its health is or is likely to be permanently injured, [is guilty
of an oence].” The central issue in the case was whether the Crown
was required to show that the defendant had subjective knowledge
that the child would be endangered, or only that she ought to have
See Section B, below in this chapter.
They may, of course, be required to compensate others for their behaviour according
to civil law.
Aaron James, Assholes: A Theory (New York: Doubleday, ).
ADH, above note .
Criminal Code, above note , s .
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