Boisvert+-+La+Négligence+Criminelle

Anne-Marie Boisvert, //La Négligence criminelle, la négligence pénale et l’imprudence end matière réglementaire: Quelles différences?//


 * Short summary:** This article discusses the state of the law with respect to offenses of negligence. She considers the different standards of fault for criminal negligence, négligence pénale, and regulatory offenses. She also discusses the consideration courts give to the personal characteristics of the accused and the circumstances of the offense in decision with respect to offenses of negligence.

Art. 219 //Criminal Code//: 1) Every one is criminally negligent who (//a//) in doing anything, or  (//b//) in omitting to do anything that it is his duty to do,  shows wanton or reckless disregard for the lives or safety of other persons.  Definition of “duty”  (2) For the purposes of this section, “duty” means a duty imposed by law.

//Criminal negligence: Objective or subjective?// · In a trilogy of cases involving crimes of negligence (//Gosset, Tutton// & //Waite)// the Supreme Court came out divided on the issue of whether to use a subjective or objective standard of fault for criminal negligence · Wilson J. used a ‘minimal //mens rea//’ approach, advocating that there has to be an element of awareness of the risk being created or willful blindness to find criminal negligence. This element of subjectivity can be inferred from the actions of the accused i.e. if they are a clear deviation from the acceptable norm o This minimal //mens rea// is difficult to distinguish from disregard (insouciance) · The other half of the Supreme Court opted for an objective standard to be applied – McIntyre J. states that criminal negligence offenses are not punishing a moral fault but rather the consequences of a rash act · The objective standard is one of a clear deviation from the standard of the reasonable person · McIntyre J. states that while it is a purely objective standard it is not applied without reference to the circumstances within which the offense was committed · Lamer J. in //Gosset// actually argued for the personal characteristics of the accused to be taken into account when considering whether there was a clear deviation from the reasonable person standard · Despite the divergence of judicial opinions in the trilogy of cases, the Supreme court said that there is no significant consequence as a result of these differences of opinion: Both the objective and subjective approaches involve the foreseeability of the consequences of the offense. In criminal cases as opposed to civil liability cases, the link between the act and the consequences must be very clear. This is why it is important that the standard be one of a __clear deviation__ from the acceptable norm. The greater the risk, the more foreseeable the consequences, therefore, the easier it is to assume that the accused also foresaw the consequences. As the risk of the act in question increases, the importance between the objective and subjective approaches decreases. · Boisvert argues that this isn’t a very convincing argument. It is one thing to presume that the accused was aware of the risk, but how will the court deal with evidence that may suggest the contrary · Can the accused put forward a defense or is a presumption of awareness of risk irrefutable?

//The norm of fault for criminal negligence and “la n//// é gligence p//// é nale”// (I’m not sure how to translate n é gligence p é nale) · //Hundal// //,// which involved a charge of dangerous driving, has been seen as the principle case on n é gligence p é nale, which uses a modified objective standard of fault · Cory J., writing for the majority, refers to the modified objective standard adopted by McIntyre in //Tutton//: “la conduite n é gligente qui s’ écarte sensiblement de la norme.” · From //Hundal// it seems that the charge of dangerous driving also requires a clear deviation from the accepted standard of conduct · Boisvert says it seems that this objective standard of a clear deviation from the norm is the minimum constitutionally accepted standard for criminal matters · However, Lamer J. in //Gosset// seems to contradict this by differentiating between criminal negligence matters and matters of n é gligence p é nale · Despite this contradiction, there still seems to be a trend towards an objective standard of a clear deviation from the norm of conduct of the reasonable person in offenses of negligence. Adopting this standard would fit with the increasing willingness of the Supreme Court to recognize objective standards of fault as constitutionally acceptable and it would have the advantage of applying the same objective standard to all crimes of negligence · However, Boisvert contends that this still does not adequately answer what standard of fault the legislature intended to apply when it used the expression: “ shows wanton or reckless disregard for the lives or safety of other persons” in article 219 of the Criminal Code. · Criminal negligence is different from the other crimes of negligent because it is not related to a specific act, but rather it simply refers to a norm of behaviour · Boisvert argues that it still is not clear how to distinguish between the standards of fault for civil negligence, simple negligence (regulatory offenses), n é gligence p é nale, and criminal negligence · The standard for simple negligence is a deviation from the norm of the reasonable person in the circumstances defenses to which can be reasonable diligence and reasonable mistake of fact · The distinction between simple negligence and n é gligence p é nale as well as criminal negligence is not entirely clear. The courts have not clearly defined what exactly a “clear deviation” consists of or how great the deviation must be for the different types of negligence · Lamer J. also advances the idea that consideration needs to be given to the personal characteristics of the accused. Lamer J. holds that it is only acceptable to punish someone once it has been demonstrated that they are able to achieve the expected standard of conduct · The majority of judges have not adopted Lamer J.’s approach. Lamer J. himself in //Hibbert// recognized the approach in //Creighton// as being the state of the law in Canada, which set out an objective standard of diligence that does not take personal characteristics into account · This approach has been criticized by doctrinal writers for taking the voluntary aspect out of the offense, thereby rendering the //mens rea// component a fiction · Lower courts have softened the rigid stance of the Supreme Court by using a three-part strategy. First, by using a notion of capacity that is larger than the narrow sense of a mental disorder in art. 16 of the Criminal Code. Secondly, by taking into account the nature of the offense and the circumstances under which it was committed. Finally, the courts will take into account the perception of the accused in the circumstances, by considering the emotions and factors that the reasonable person would be influenced by in the same circumstances as the accused // Conclusion // · In considering cases involving crimes of negligence, courts must consider the nature of the activity in question, the context in which it took place, and the capacity of the accused to behave in accordance with the reasonable person standard