C. The Degrees Of Objective Mens Rea
| Author | Kent Roach |
| Profession | Faculty of Law and Centre of Criminology. University of Toronto |
| Pages | 193-201 |
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The Supreme Court has indicated that objective, as opposed to subjective, fault is constitutionally sufficient for unlawful act manslaughter and other criminal offences less serious than murder, attempted murder, and war crimes. Despite increasing acceptance of objective fault as a form of mens rea, there has been some uncertainty about how such a standard should be applied in a criminal prosecution. This topic raises some of the same dilemmas encountered when the courts apply objective standards to defences such as self-defence.98The central issue is how to adjust the objective standard so that it does not apply to those who cannot reasonably be held responsible for satisfying that standard, while not collapsing objective standards into subjective ones.
Some judges have been attracted to the idea of making the reasonable person resemble the accused, but this has yet to win majority support in the Supreme Court. In Tutton,99Lamer J. would have applied an objective standard to determine criminal negligence, but he would have modified it by making "‘a generous allowance’ for factors which are particular to the accused, such as youth, mental development, education." He noted that if this was done, "the adoption of a subjective or an objective test will, in practice, nearly if not always produce the same result."100In Creighton,101Lamer C.J. elaborated his views and held that the reasonable person used to determine objective liability should be invested with "any human frailties which might have rendered the accused incapable of having foreseen what the reasonable person would have foreseen," as well as any "enhanced foresight" derived from the accused’s special knowledge or skill. Human frailties were defined as
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"personal characteristics habitually affecting an accused’s awareness of the circumstances which create risk."102They had to be characteristics that the accused could not control or manage in the circumstances. On the one hand, Lamer C.J. would have factored in the inexperience, youth, and lack of education of a mother who did not provide the necessities of life to her child,103while on the other hand, he would have considered the enhanced foresight of risk that an experienced drug or gun user would have when dealing with those dangerous objects.104Making the reasonable person more like the accused could make it more difficult to convict an accused who habitually was unaware of prohibited risks, while it could also make it easier to convict an accused who was more sensitive to the prohibited risk than the reasonable person.
The Lamer approach to individualizing the reasonable person has not been accepted by a majority of the Supreme Court.105In Creighton,106MCLACHLIN J. for a 5:4 majority rejected the Lamer approach on the basis that it "personalizes the objective test to the point where it devolves into a subjective test, thus eroding the minimum standard of care which Parliament has laid down by the enactment of offenses of manslaughter and penal negligence." The only personal characteristics of the accused that are relevant in the majority’s approach would be those that establish incapacity to appreciate the nature and quality of the prohibited conduct and consequences. Justice MCLACHLIN elaborated:
Mental disabilities short of incapacity generally do not suffice to negative criminal liability for criminal negligence. The explanations for why a person fails to advert to the risk inherent in the activity he or she is undertaking are legion. They range from simple absentmindedness to attributes related to age, education and culture. To permit such a subjective assessment would be "co-extensive with the judgment of each individual, which would be as variable as the length of the foot of each individual" leaving "so vague a line as to afford no
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rule at all, the degree of judgment belonging to each individual being infinitely various." . . . Provided the capacity to appreciate the risk is present, lack of education and psychological predispositions serve as no excuse for criminal conduct, although they may be important factors to consider in sentencing.107In short, the reasonable person will not be invested with the personal characteristics of the accused unless the characteristics are so extreme as to create an incapacity to appreciate the prohibited risk or the quality of the prohibited conduct. An example given by MCLACHLIN J. of a relevant personal characteristic when applying objective standards would be the accused’s illiteracy if he or she was charged with a crime stemming from the mishandling of a marked container containing a dangerous substance. The accused’s age and level of education, however, would not normally be considered when applying the reasonable person standard.
Chief Justice Lamer subsequently accepted this unmodified objective approach and justified it on the basis that it applied to those who make a voluntary decision to perform conduct that is subject to punishment for negligence.108The Court has continued in Beatty to apply a strict reasonable person standard with respect to crimes of negligence:
Short of incapacity to appreciate the risk or incapacity to avoid creating it, personal attributes such as age, experience, and education are not relevant. The standard against which the conduct must be measured is always the same - it is the conduct expected of the reasonably prudent person in the circumstances.109As will be seen in chapter 9, however, Chief Justice Lamer’s modified objective approach of endowing the reasonable person with similar characteristics, frailties, and experiences as the accused has won the day with respect to defences in which the accused is held up to standards of reasonable conduct. The justification for the different approaches would appear to be that an accused who commits a crime with a valid defence such as provocation, self-defence, duress, or necessity does not voluntarily commit the crime and that the accused’s characteristics and experiences must be considered in determining whether he or she had no realistic choice but to commit the crime.
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Another manner of adapting a negligence standard to the criminal context is to require not only unreasonable conduct or simple negligence, but also conduct that amounts to a marked departure from that of the reasonable person. In Tutton,110MCINTYRE J. stated that criminal negligence required "proof of conduct which reveals a marked and significant departure from the standard which could be expected of a reasonably prudent person in the circumstances," as opposed to simple negligence. In Hundal,111the Court indicated that although dangerous driving was to be determined on an objective basis, "the trier of fact should be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s situation." In Beatty, the Supreme Court suggested that a requirement of a marked departure from reasonable standards was necessary to distinguish criminal from civil negligence and to ensure restraint in the use of the criminal law.112The Supreme Court has required a marked departure from the conduct of a reasonable person even when a criminal offence seems to require simple negligence. In Finlay113and Gosset,114the Supreme Court considered manslaughter charges based on the unlawful act of careless use of a firearm. The Court required that a person demonstrate a...
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