Duty
R. v. Miller (1983) HL
The accused was drunk and fell asleep with a cigarette in his hand. He awoke to smoke from his mattress, which had been set ablaze by the cigarette. Instead of extinguishing the fire, he simply moved to another room and continued to sleep. The fire spread and his house was destroyed. This was viewed as one continuous act. Lord Diplock concluded that the accused should be held responsible for an omission to act where it was held that there was a duty to act. This case extended the common law duty to act.
Duty
Moore v. R. (1979) SCC
Moore was charged with obstructing a peace officer in the performance of his duty by failing to stop for him under CC129. Under s.58 of the Motor Vehicle Act, there is a statutory duty to stop a motor vehicle for a police officer when requested or to state one’s name and address correctly for the officer. The majority sided with the officer and found that Moore was under a duty to provide information and the officer was under a duty to collect it; however, in dissent, Dickson J. wrote there is no common law duty to identify oneself to police and no statutory duty existed because a bicycle is not a motor vehicle.
Duty
R. v. Thornton (1991) Ont. CA
The accused donated blood to the Red Cross with full knowledge that he was HIV positive and was charged under CC180 for committing a common nuisance, which follows that commits a common nuisance when they fail to discharge a legal duty and thereby endanger others. The trial judge found a duty within CC216, which states that everyone who undertakes to administer medical treatment…does so under a legal duty to use reasonable knowledge, skill and care in so doing. The trial judge found that the accused, given the context, was involved in a medical procedure. Thornton’s appeal was dismissed because the court found a common law duty to refrain from conduct which one foresees could cause serious harm to another.
Duty
R. v. Thornton (1993) SCC
The SCC dismissed Thornton’s appeal as well on the basis that CC216 imposed upon the accused a duty of care in giving blood, which was breached by his failure in disclosing his HIV status. The court read CC216 literally and, in so doing, established a new wider measure for responsibility for omissions. The court never addressed CC9. This common nuisance endangered the life, safety and health of the public and the accused was therefore properly convicted of committing a common nuisance.
R. v. Browne (1997) Ont. CA
The accused and deceased were partners in drug dealing. The deceased swallowed a bag of cocaine to avoid police detection during a strip search, failed to vomit it up and later died of an overdose. At trial, the judge found that the accused was guilty of criminal negligence involving death under CC219 by failing to discharge a legal duty, which derived from his undertaking to save her life. On appeal, the court found that the trial judge had erred in law in finding a legal duty under CC217. Merely saying “I’ll take you to the hospital” did not constitute an undertaking creating a legal duty under CC217 and there was no evidence that taking her to the hospital by taxi instead of calling 911 resulted in a significantly slower arrival.
People v. Beardsley (1907) Mich. SC
A drunken man was said at trial to owe his girlfriend, a morphine addict, a legal duty, the omission of which involved criminal liability. This court determined otherwise and concluded that no such legal duty is created based upon a mere moral obligation.
Fundamental Justice
Fundamental justice, a crucial element of s.7, is a qualifier rather than a distinct protected interest. R. v. Whyte (1999) SCC, established the test for a violation of s.7.
1. Has the applicant suffered a real or imminent deprivation of life, liberty and security of the person or a combination of these interests?
2. Is the deprivation serious enough to attract Charter scrutiny? At this stage, the principles of fundamental justice must be defined.
3. Is the deprivation in accordance with the principles of fundamental justice?
If a breach of the principles of fundamental justice occurs, then it is necessary to look at whether it is justified under s.1; however, the SCC has made it clear in the past that anything that breaches s.7 is probably not justifiable.
Reference Re Section 94(2) of the Motor Vehicle Act (BC) (SCC) (1985):
Under this legislation, it was an offence, punishable by fine and imprisonment, to drive while suspended. This was an absolute liability offence, which meant did not consider whether the driver was aware of the suspension. The concept of absolute liability, to the extent that it had the potential of depriving life, liberty and security of the person, offended s.7. This limit was not justified under s.1 because the benefit of punishing bad drivers did not outweigh the risk of imprisoning innocent people. This legislation offended the principles of fundamental justice and would bring the administration of justice into disrepute.
R v. Morgentaler (SCC) (1988):
State interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitute a breach of security of the person. The regime put in place by the Criminal Code was inconsistent with the aspirations of women and, in some circumstances, posed a direct threat to their health. CC251 caused a delay in the procurement of an abortion, or made an abortion completely inaccessible, which caused severe stress to those affected and represented a major interference with a woman’s body. Imposing state control on a woman’s capacity to reproduce also constituted a violation of security of the person.
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