R v. Creighton (1993) SCC
There should be a distinction between the subjective standard of whether the accused was actually aware of the risk and the objective standard of whether the accused failed to measure up to the external standard of the reasonable person, irrespective of awareness. On the subjective standard, all of the accused’s individual factors are taken into account. The objective standard is much tougher since Creighton because no personal factors can be taken into account unless they relate to incapacity.
R. v. Hundal (1993) SCC
The accused was charged with dangerous driving causing death under CC249. He killed a motorist by driving his truck through a red light at an intersection. He claimed that the death resulted from his inability to stop the truck in time after it turned yellow. The SCC held that objective test should apply. Cory J. says that even where the substantive test is subjective awareness, the approach to proof is objective.
R. v. Anderson (1990) SCC
Looks at the practical distinctions between the standards; however, there are many borderline cases where the distinction is crucial. For example, in a drug possession case, the trier of fact may distinguish between one who was aware of the drug and one who wasn’t aware even though a reasonable person would be. These distinctions should be reflected in punishment.
R. v. Theroux (1993) SCC
Theroux was charged with fraud under CC380. He was involved in building houses and sold several residences before their completion, representing to the buyers that their deposits were insured, although no such insurance existed. Theroux went bankrupt and many purchasers lost their deposits. He claimed that he believed the buildings would be completed and the purchasers would not be harmed. Fault must be viewed within the full context of the facts. The mens rea for fraud was established by proof of the subjective knowledge of the prohibited act and the subjective knowledge that prohibited act could have as a consequence the deprivation of another. Theroux’s belief that no one would be hurt is no defense. He committed deliberate falsehoods that caused deprivation. He knew he was placing the deposits of his purchasers at risk, even though he believed the risk would not materialize.
R. v. Mulligan (1976) Ont. CA
M raised the defense that his emotional stress and the alcohol he consumed caused a disease of the mind rendering him incapable of appreciating his act of non-capital murder. One intends the natural and probable consequences of his act.
Hosegood v. Hosegood (1950) HL
Denning stated that the presumption of intention is not a proposition of the law but one of ordinary good sense. A man is normally able to foresee the consequences of his actions. This inference may be drawn but does not have to be.
Class Example:
Jill discharged at point blank range a gun pointed at Jack. Inference of intent is drawn but may be rebutted by evidence to the effect that the gun was discharged accidentally. The accused diverts the finger of suspicion. In the past 60 years, scholars that the mens rea required for criminal responsibility (whether intent, recklessness, willful blindness) must be subjectively determined. Objective test is wrong except for manslaughter.
D.P.P. v. Smith (1960) HL
Smith stole scaffolding. A policeman attempted to stop Smith by holding onto the side of his car. Smith accelerated and the policeman died when crushed under the wheel of a car. The HL accepted Holmes’ view that the approach for determining intent for murder should be objective. Why? A reasonable man would have foreseen that his act would produce the victim’s death, which means the mental element is proven. This approach has been universally criticized. English Parliament passed the Criminal Justice Act (1976) which abolished the objective standard for murder.
FAULT FOR REGULATORY OFFENCES
Regulatory offences are enacted by the federal, provincial and municipal governments and they far outnumber offences under the CC. They are enacted to prevent harm before it happens and often apply to corporations.
Absolute liability offences (must prove actus reus but not mens rea) violate the Charter if they carry the possibility of imprisonment (BC Motor Vehicle Reference). With absolute liability, the offence only requires proof of the prohibited act beyond a reasonable doubt to establish fault (no requirement of subjective fault). There is a common law presumption against absolute liability. In R. v. Pontes, the SCC determined upheld an absolute liability offence on the basis that the accused could not be imprisoned for violating it. No violation of the Charter occurs in this instance because a sentence other than imprisonment does not affect the accused’s right to life, liberty or security of the person. Under this, one could be completely innocent but branded as a malefactor. It is okay for absolute liability offences to relate to businesses because they do not enjoy rights under s.7 of the Charter. When a corporation is charged with an offence, fault must be attributed to someone who holds the status of directing mind of the corporation. Directing minds must supervise and implement corporate policy, not simply carry it out.
Strict liability is described as a halfway house between absolute liability and full mens rea offences. This head of fault came about following Sault Ste. Marie. Before this decision, the only choices for the court were full mens rea or absolute liability. There is a presumption that all regulatory offences are strict liability offences. Negligence will be a constitutionally sufficient fault element for all regulatory offences. Negligence is rebuttable if evidence is tendered to the effect that reasonable care was taken in the circumstances.
Vicarious liability occurs when the acts and fault of another person are attributed to the accused for the purposes of determining liability. The principles of fundamental justice, many argue, do not recognize the ascribing to one person of another’s state of mind.
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