R.+c.+Creighton

1993, SCC, on appeal from Ontario

- Creighton bought cocaine and injected a quantity he failed to measure into himself, a friend and Ms. Martin, with the consent of each. - Ms. Martin was immediately seized with convulsions. Creighton and his friend could not reanimate her. - The friend proposed to call the police. Creighton verbally intimidated him not to. Creighton wiped the apartment of all fingerprints and left. - The friend came back later to call 911. - Creighton is accused of trafficking under s.4(1) of the //Law on narcotics// and of manslaughter resulting from an illegal act under s.222(5a) of the Criminal Code. - Creighton was sentenced to 4 years in trial court. The Court of Appeal of Ontario confirmed this verdict.
 * Facts:**

Loi sur les stupéfiants, L.R.C. (1985), ch. N‑1 //2. Les définitions qui suivent s'appliquent à la présente loi. «faire le trafic» Le fait de fabriquer, vendre, donner, administrer, transporter, expédier, livrer ou distribuer un stupéfiant ‑‑ ou encore de proposer l'une de ces opérations ‑‑ en dehors du cadre prévu par la présente loi et ses règlements. 4. (1) Le trafic de stupéfiant est interdit, y compris dans le cas de toute substance que le trafiquant prétend ou estime être tel.//
 * Relevant legislation:**

Criminal Code, 222. . . . //(5) Une personne commet un homicide coupable lorsqu'elle cause la mort d'un être humain: a)soit au moyen d'un acte illégal; b)soit par négligence criminelle;//


 * Issue:** Does the common law definition of manslaughter violate art. 7 of the Charter?
 * Majority (McLachlin J.):** No.
 * Dissent (Lamer C.J.):** No, not if we make the //mens rea// for manslaughter more stringent.


 * Dissent (Lamer C.J.):**

(1) the accused committed an illegal act (2) the illegality of the act is not simply due to negligence in committing this act __**(3) the act will generally cause a not-insignificant harm.**__
 * In common law, to establish manslaughter, the following must be established:**

- Since Renvoi: Motor Vehicle Act, courts must evaluate the content of a law in relation to the principles of fundamental justice (Charter, s.7) and cannot sanction people who are morally innocent. - In R. v. Vaillancourt, Lamer C.J. stated __certain, enumerated crimes require a subjective, moral fault__ - «en raison de la nature spéciale des stigmates qui se rattachent à une déclaration de culpabilité de ceux‑ci ou des peines qui peuvent être imposées le cas échéant, les principes de justice fondamentale commandent une mens rea qui reflète la nature particulière du crime en question»: - R. v. Hundal established that a large range of infractions require only an objective fault. Only a few infractions (as outlined in R. v. Vaillancourt) require subjective fault.

Analysis of the social stigma of the infraction: (1) Is the conduct sufficiently serious to draw great moral reprobation on the guilty person? -- Here, yes. In both murder and manslaughter, an accused is blamed by the state for the illicit murder of another human being. There is nothing more serious in our society than taking away the life of another without justification. (2) Was the accused's character morally blamable? -- The worst stigma is when the accused __knowingly__ killed. There is much less stigma to manslaughter than to murder. Murder is committed knowingly or intentionally, and manslaughter insouciantly or unconsciously.

- There is less stigmatization when the punishment is flexible, and can be adapted in the circumstances by the court to reflect society's moral reprobation.

Two cases: (1) When a consequence is the essence of an infraction (ie: the consequence of death in the infraction of manslaughter resulting from an illegal act). Then an element of fault must be established relative to the consequence.

(2) When a consequence is part of the actus reus of an infraction and the essence of this infraction is conduct which is intrinsically dangerous for a life or injury, the infraction is presumed to include the objective foreseeability of this risk. ie: Proof that the accused committed an activity that a reasonable person would foresee as risky is substituted for objective foerseeability.
 * There is only a small category of cases for which an element substituted for proof of foreseeability will satisfy s.7 of the Charter. These are intoxicated or dangerous driving causing physical harm or death. The moral reprobation is the same for each case (be it physical harm or death) - what is morally reprehensible is that the person drove intoxicated or drunk. The punishment depends on whether it was death or physical harm, but the moral reproach stays the same.

- We are in situation (1), not (2) so we need to establish a moral element relative to the consequence. The stigmatization attached to manslaughter requires that, to satisfy s.7 of the Charter, the accused have at least objectively predicted the risk of death.

The correct interpretation of 222(5a) to satisfy s.7 of the Charter requires the Crown to prove the following four things: (1) the accused committed an illegal act which caused the death of the victim (2) the illegal act is objectively dangerous (ie: a reasonable person would foresee a risk of harm) (3) the original illegal act required subjective fault, and was not a strict-liability infraction (4) a reasonable person in the same situation as the accused would have predicted **the risk of death** comprised in the illegal activity
 * [Compare this to above, the three criteria in __common law__ to prove manslaughter. The common law standard only requires proof of risk of not-insignificant physical harm, and Lamer C.J. is proposing changing this to risk of DEATH.]**

Disagrees with Lamer C.J.'s point (4) above. Lamer C.J. makes the test for manslaughter more stringent (by adding that __death__ must have been objectively predictable). McLachlin thinks this is unnecessary - the infraction of manslaughter, as it has always existed in the common law (see the three criteria above), is constitutional.
 * Majority (McLachlin J.):**

- An infraction is not merely unconstitutional because it depends on another infraction (the illegal act) as long as: the initial infraction is dangerous; the initial infraction is not one of strict liability; the initial infraction is not itself unconstitutional. - Lamer C.J. alleges that it was wrong of the trial-level judge to require only foreseeability of __injury__ and not foreseeability of __death__. - Jurisprudence does not require that death be foreseeable for there to be manslaughter, only that important physical injury be foreseeable. "Les lésions corporelles ne doivent pas être de nature passagère ou sans importance" (R. v. De Sousa) - So criteria (4) above in Lamer C.J.'s opinion //should// read "a reasonable person in the same situation as the accused would have predicted **__the risk of important physical injury__** comprised in the illegal activity"

- We must now verify the constitutionality of the new criteria (4). - The infraction of manslaughter has been around for centuries. Could it possibly be against the fundamental principles of law, which also go back in the history of common law? It should be with great hesitancy that a 20th century court abolishes or modifies manslaughter based on its accordance with principles of fundamental justice.

Lamer C.J. claims that, due to the gravity of manslaughter and its stigmatization, this requires mens rea in the form of forseeability of death. __McLachlin's response:__ R. v. Martineau mentioned three factors in evaluating the constitutionality of a requirement of mens rea: (a) Stigmatisation and punishment require a mens rea that reflects the nature of the crime (b) The punishment must be proportional to the moral culpability of the accused (c) Those who cause harm intentionally should be punished more severally than those who cause it unintentionally

Re: (a) McLachlin thinks the stigmatisation for manslaughter is much lower than for murder. A person found guilty is not said to be a 'murderer'. - The public would be shocked if you could be convincted of manslaughter when injury wasn't foreseeable. - The public would also be shocked if a person who killed another person was convicted only of assault, because the risk of __death__ wasn't foreseeable, only the risk of injury was foreseeable. - Changing the mens rea as proposes Lamer C.J. would be making the mens rea disproportional to public stigma.

Re: (b) Murder leads obligatory life emprisonment. Manslaughter has no minimum sentence. The punishment associated with manslaughter does not require a higher mens rea for this infraction.

Re: (c) Manslaughter is an unintentional crime and so the punishment is lower.

Conclusion: the mens rea for manslaughter is well adapted to the severity of the infraction.

Lamer C.J. argues that the element of moral fault must correspond to the consequences of the infraction. __McLachlin's response:__ - Generally in criminal law: actus reus is about the act which leads to a forbidden consequence, and mens rea has to do with the forbidden consequence. - Lamer C.J. argues that since manslaughter is the act of killing someone, the mens rea must be about death and not just injury. - This reasoning relies on two assumptions: (1) that risk physical injury is very different from risk of death in the context of manslaughter (2) that the principle of perfect correspondance between mens rea and each consequence of the infraction is not only a general rule of criminal law, but also a principle of fundamental justice, and a strict minimum constitutionally. - McLachlin issues a warning with regards to (1) and (2). - Re: (1) With the thin-skull rule, risk of physical injury could lead to risk of death for certain vulnerable victims. Creighton wants the court to overturn the rule of the 'vulnerability of the victim'. - Re (2): the rule that mens rea should correspond to the actus reus is simply a general rule with exceptions, and not a principle of fundamental justice. The Charter only requires a degree of moral fault, not a perfect correspondence between actus reus and mens rea. Ex: attemps at murder are punished much less severely than murder itself, though the mens rea was the same. For manslaughter, the gravity of the consequence (death instead of injury) leads to a higher punishment though the moral aspect is the same. No principle of fundamental justice prevents the legislator from punishing crimes with greater consequences more than others.

Policy considerations for keeping the criteria for manslaughter as "foreseeability of __injury__": - Society should discourage behaviour that risks leading to death of vulnerable people. Leaving predictability of injury as the criteria for manslaughter is a good deterance tactic. - When a person dies, society wants that person punished severely. If a vulnerable person dies, manslaughter should be the infraction. - This avoids judges and juries having to rule on whether serious injuries were predictable, or death predictable in a certain case.

The mens rea required for manslaughter is constitutional.