R. v. Currie (1975) Ont. CA
The accused offered a forged cheque and was found guilty on the basis of willful blindness because he failed to make proper inquiries into the cheque that he ought to have made. He was suspicious of the authenticity of the cheque but cashed it anyway. The trial judge erred in applying willful blindness.
R. v. Blondin (1971) BCCA
Accused was acquitted of smuggling 23 pounds of drugs into Canada in a Scuba tank and the Crown appealed. The trial judge erred in instructing the jury that B knew the substance in the tank was cannabis to find him guilty. He should have instructed the jury that a conviction could flow from a finding of recklessness or willful blindness so long as they could at least draw the inference that he suspected that it might be a narcotic.
R. v. Sandhu (1989) Ont. CA
One pound of heroin was found in the luggage and two ounces in the wallet of the appellant. He blamed it on a woman in India, despite the fact that his own financial situation would have precluded him from travelling to India or having the amount of cash he did on his person. The trial judge instructed the jury that they convict on actual knowledge, willful blindness or recklessness without explaining that the first two were virtually the same.
R. v. Duong (1998) Ont. CA
D was charged with being an accessory to murder after the fact. D knew L was in trouble when he let him stay at his apartment. D was willfully blind to L’s murders and the trial judge did not err in instructing the jury under this head.
OBJECTIVE CRIMES
Use words such as ought to, reasonable care, good reason, reasonable ground, reasonably expected or reasonable steps.
NEGLIGENCE
Not thinking at all when one ought to have been thinking or thinking in a certain way when one ought to have been thinking differently. This is controversial and raises the issue as to how to adjust the objective standard so it does not apply to those who cannot reasonably be held responsible for satisfying that standard while not collapsing the objective standard into subjective ones. The offences that incorporate criminal negligence are found in CC219-222 and 234-236.
The difference between recklessness and negligence is the difference between advertence and inadvertence.
R. v. Tutton and Tutton (1989) SCC
Deeply religious parents of a diabetic five-year old child stopped giving him insulin in favour of relying on faith healing to cure him and he died. The parents were charged with causing the death of the child by criminal negligence under CC202.1. The issue was whether an objective or subjective test applies to criminal negligence. Three judges favoured the subjective test (because they were concerned that use of the objective standard would amount to absolute liability thus threatening s.7 and leading to uncertainty regarding whether individual factors could be considered), 3 judges favoured the objective test, including Lamer, who added in a separate opinion that there has to be a broad allowance to factors peculiar to the accused – such as mental development or education (Creighton rejected Lamer’s approach to individualizing the reasonable person because the test ceases to be objective). The test to be applied was whether the conduct revealed a marked or significant departure from the standard that could be reasonably expected from a reasonable and prudent person in the circumstances will justify a conviction of criminal negligence. The application of the objective test should not be made in a vacuum – must look at accused’s circumstances – the regular (unindividualized) objective standard would be too harsh.
R. v. Pontes (1995)
Court upheld an absolute liability offence because it didn’t threaten the s.7 liberty interest. S.7 is not violated provided that the mens rea and penalties reflect the particular nature of the crime and its:
1. Stigma
2. Punishment is proportionate to blameworthiness
3. Those who cause harm intentionally are more severely punished than those who cause it unintentionally
There is a growing consensus that there must be more than just simple negligence but rather a marked departure from the reasonable person standard in order to convict.
MANSLAUGHTER
Manslaughter depends on a predicate offence of an unlawful act or criminal negligence coupled with homicide. It is now settled that an offence that depends on a predicate offence does not render it unconstitutional provided that the predicate offence involves a dangerous act or is not an offence of absolute liability and is not unconstitutional (DeSousa). Two constants of manslaughter are conduct causing the death of another person and fault short of intention to kill.
R. v. DeSousa (1992) SCC
The appellant was charged with unlawfully causing bodily harm contrary to CC269. He was involved in a fight and threw a glass bottle that hit the wall. A piece of the glass injured a bystander. Because this section raised the possibility of absolute liability and carried a prison term with it – violation of s.7. This case established that in addition to the actus reus and mens rea associated with an underlying act, all that is needed to support a manslaughter conviction is reasonable foreseeability of the risk of bodily harm. There must be a marked departure from the reasonable person standard in all circumstances. It does not require foreseeability of death – it only need be foreseeable that the harm would be more than trivial or transitory – test of objective foresight of bodily harm. SC found this section of the CC to be fine.
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