R. v. Creighton
The accused and deceased were drinking together and the deceased consented to the accused injecting her with cocaine. He put her on the bed, came back 7 hours later, then called 911. There is a good quote from this case regarding the requirements for s.7 of the Charter.
1. The proper interpretation of CC222.5.a (unlawful act of manslaughter) requires the Crown to prove that the accused had committed an unlawful act which caused the death of the deceased;
2. The unlawful act must be one that is objectively dangerous (reasonable person standard;
3. That the fault requirement of the predicate offence extend to offences of absolute liability was in existence;
4. That a reasonable person in the position of the accused would foresee that the unlawful act would give rise to harm.
R. v. Cribbin (1994) Ont. CA
The accused had dished out a preliminary beating on the deceased, which was followed up by a much more severe one from his friend. The deceased drowned in his own blood and the accused was found guilty of manslaughter. Arbour J. found that the law should not hold people criminally responsible for things that cannot be attributed to them. The Ont. CA dismissed the claim that the de minimus test in Smithers was too broad and too vague. Any risk that the de minimus could engage criminal responsibility of the morally innocent was removed by the additional fault requirement of objective foresight of bodily harm required for the unlawful act of manslaughter. The CA found that the de minimus causation test and the thin skull rule are both consistent with the principles of fundamental justice. Criminal causation is a legal rule based on the concept of moral responsibility rather than mechanical scientific formulas. One can be convicted of manslaughter for playing more than a minimal role in death, even if death was not reasonably foreseeable.
R. v. Harbottle (1993) SCC
The accused held the victim’s legs to prevent her from kicking and struggling while his friend strangled her. Was the accused’s participation such that he could be found guilty of first degree murder under CC214.5. Murder in the first degree requires that the actions of the accused must form a substantial, essential and integral part of killing the victim. The substantial causation test requires the accused to play an active, usually physical role in the killing. The court rejected an even more stringent causation test that would require the Crown to show that the accused’s acts were a physical cause of death because it would lead to impractical and non-purposive distinctions.
R. v. Smith (1959)
A fight between two soldiers led to a stabbing that caused a pierced lung and hemorrhaging, which resulted in death. The death occurred after the victim was brought to the medical station, having been dropped over fences numerous times. Upon arrival, the medical staff ignored him. If he had been treated immediately, his chances of recovery would have been 75%. It was held that the death resulted from the original wounds, thus making the accused responsible for murder.
Factual and Imputable Causes
The most common test for factual cause is the but for test – has there been proof beyond a reasonable doubt that the consequences wouldn’t have followed but for the act of the accused. If yes, the accused’s act was a factual cause of the consequences. For example, in Johnson the accused hit the deceased on the head with a rifle 11 days before death; however, the deceased had sustained other hits to the head during this 11 day period. Therefore, the Crown could not satisfy the but for test. Imputable cause is descriptive of the true nature of the inquiry that arises after the but for test, which sifts out cases with no preliminary proof of factual causation.
THE FAULT REQUIREMENT (MENS REA OR NEGLIGENCE)
Mens Rea – subjective test
This often refers to words like intent, recklessness, willful blindness or knowledge. It focuses on the mental state of the accused and requires proof of a positive state of mind.
Negligence – objective test
In determining this, no individual factors can be taken into account except for issues of mental incapacity. Given this, there is no need to answer for the intent of the accused. This test looks at what the accused ought to have known by measuring the conduct of the accused against the expected conduct of the reasonable person.
MENS REA
Mens rea is the fundamental concept in criminal law that one cannot be held criminally liable if there was no guilty mind directing the impugned act or omission; however, there is no single mens rea definition that covers every crime in existence. Instead, words like intent or willful appear in the CC. The mental element is to vary with the different nature of different crimes. The mens rea tends to be concerned with the consequences of the prohibited acts reus. The fault jurisprudence is a mix of common law and statutory standards. In addition, there is a constitutional requirement for fault for anything that effects or threatens the Charter liberty interest. The largest debate regarding fault is whether the approach should be subjective or objective. Subjective fault requires the Crown to establish that the accused subjectively had the guilty knowledge (operates to prevent the conviction of an accused that lacks the knowledge and foresight that a reasonable person would have. Objective fault requires only that a reasonable person in the accused’s position would have had the required guilty knowledge or would have acted differently. Common law presumptions of mens rea (Sault Ste. Marie) require that Parl. clearly state when it does not desire subjective mens rea when enacting an offense.
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