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R. v. Creighton, [1993] 3 S.C.R. 3

 

Marc Creighton                                                                                 Appellant

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

and

 

The Attorney General of Canada, the

Attorney General of Quebec, the Attorney

General of Manitoba and the

Attorney General for Saskatchewan                                                Interveners

 

Indexed as:  R. v. Creighton

 

File No.:  22593.

 

1993:  February 3; 1993:  September 9.

 

Present:  Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

 

on appeal from the court of appeal for ontario

 


Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Mens rea ‑‑ Unlawful act manslaughter ‑‑ Accused injecting cocaine into deceased, who died as a result -- Injection constituting trafficking under Narcotic Control Act -- -- Accused convicted of manslaughter -- Common law definition of unlawful act manslaughter requiring foreseeability of bodily injury -- Whether common law manslaughter must be "read up" to require foreseeability of death -- Canadian Charter of Rights and Freedoms, s. 7 ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 222(5)(a).

 

Criminal law ‑‑ Unlawful act manslaughter ‑‑ Mens rea ‑‑ Accused injecting cocaine into deceased, who died as a result -- Injection constituting trafficking under Narcotic Control Act -- Accused convicted of manslaughter -- Common law definition of unlawful act manslaughter requiring foreseeability of bodily injury -- Whether common law manslaughter contravenes s. 7 of Canadian Charter of Rights and Freedoms -- Criminal Code, R.S.C., 1985, c. C‑46, s. 222(5)(a).

 


Over an 18‑hour period, the accused, a companion of his and the deceased shared a large quantity of alcohol and cocaine at the deceased's apartment.  With the deceased's consent, the accused injected a quantity of cocaine into her forearm.  She immediately began to convulse violently and appeared to cease breathing.  Subsequent expert testimony confirmed that, as a result of the injection, she had experienced a cardiac arrest, and later asphyxiated on the contents of her stomach.  Both the accused and his companion attempted unsuccessfully to resuscitate the deceased.  The companion indicated he wanted to call for emergency assistance but the accused, by verbal intimidation, convinced him not to.  The accused placed the deceased, who was still convulsing, on her bed.  He then proceeded to clean the apartment of any possible fingerprints, and the two men then left.  The companion returned unaccompanied to the deceased's apartment six to seven hours later and called for emergency assistance.  The deceased was thereupon pronounced dead.  The accused was charged with manslaughter.  Defence counsel conceded at trial that the injection into the deceased's body constituted "trafficking" within the meaning of s. 4(1) of the Narcotic Control Act.  The Crown argued that the accused was guilty of manslaughter as the death was the direct consequence of an unlawful act, contrary to s. 222(5)(a) of the Criminal Code.  The accused was convicted, and the Court of Appeal upheld the conviction.  This appeal is to determine whether the common law definition of unlawful act manslaughter contravenes s. 7 of the Canadian Charter of Rights and Freedoms.

 

Held:  The appeal should be dismissed.

 

Per L'Heureux‑Dubé, Gonthier, Cory and McLachlin JJ.:  The test for the mens rea of unlawful act manslaughter is objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act.  Foreseeability of the risk of death is not required.  This test does not violate the principles of fundamental justice under s. 7 of the Charter.  The mens rea requirement of foreseeability of harm is entirely appropriate to the stigma associated with the offence of manslaughter.  By the very act of calling the killing manslaughter, the law indicates that the killing is less blameworthy than murder.  Nor does the sentence attached to manslaughter require elevation of the degree of mens rea for the offence.  Finally, the principle that those causing harm intentionally must be punished more severely than those causing harm unintentionally is strictly observed in the case of manslaughter.  The standard of mens rea required for manslaughter is thus appropriately tailored to the seriousness of the offence.

 


Risk of bodily harm is not appreciably different from risk of death in the context of manslaughter:  when the risk of bodily harm is combined with the established rule that a wrongdoer must take his victim as he finds him and the fact that death did in fact occur, the distinction disappears.  Further, while the rule that there must be symmetry between the mens rea and the prohibited consequences of the offence is a general rule of criminal law, it is not a principle of fundamental justice.  Just as it would offend fundamental justice to punish a person who did not intend to kill for murder, so it would equally offend common notions of justice to acquit a person who has killed another of manslaughter and find him guilty instead of aggravated assault on the ground that death, as opposed to harm, was not foreseeable.  Fundamental justice does not require absolute symmetry between moral fault and the prohibited consequences.  Consequences, or the absence of consequences, can properly affect the seriousness with which Parliament treats specified conduct.  Policy considerations support a test for the mens rea of manslaughter based on foreseeability of the risk of bodily injury, rather than death.

 


The objective test for criminal fault, which requires a "marked departure" from the standard of the reasonable person, should not be extended to incorporate a standard of care which varies with the background and predisposition of each accused.  Considerations of principle and policy dictate the maintenance of a single, uniform legal standard of care for such offences, subject to one exception:  incapacity to appreciate the nature of the risk which the activity in question entails.  The principle that the criminal law will not convict the morally innocent does not require consideration of personal factors short of incapacity.  The criminal law, while requiring mental fault as an element of a conviction, has steadfastly rejected the idea that a person's personal characteristics can (short of incapacity) excuse the person from meeting the standard of conduct imposed by the law.  The fundamental premises upon which the criminal law rests mandate that personal characteristics not directly relevant to an element of the offence serve as excuses only at the point where they establish incapacity, whether the inability to appreciate the nature and quality of one's conduct in the context of intentional crimes, or the incapacity to appreciate the risk involved in one's conduct in the context of crimes of manslaughter or penal negligence.

 

While the legal duty of the accused is not particularized by his or her personal characteristics short of incapacity, it is particularized in application by the nature of the activity and the circumstances surrounding the accused's failure to take the requisite care.  The question is what the reasonably prudent person would have done in all the circumstances.  The legal standard of care is always the same ‑‑ what a reasonable person would have done in all the circumstances.  The de facto or applied standard of care, however, may vary with the activity in question and the circumstances in the particular case.

 


In cases of penal negligence, the first question is whether the actus reus is established.  This requires that the negligence constitute a marked departure from the standards of the reasonable person in all the circumstances of the case.  The next question is whether the mens rea is established.  As is the case with crimes of subjective mens rea, the mens rea for objective foresight of risking harm is normally inferred from the facts.  The standard is that of the reasonable person in the circumstances of the accused.  If a prima facie case for actus reus and mens rea is made out,* it is necessary to ask a further question:  did the accused possess the requisite capacity to appreciate the risk flowing from his conduct?  If this further question is answered in the affirmative, the necessary moral fault is established and the accused is properly convicted.  If not, the accused must be acquitted.

 

In this case a reasonable person in all the circumstances would have foreseen the risk of bodily harm.  At the very least, a person administering a dangerous drug like cocaine to another has a duty to inform himself as to the precise risk the injection entails and to refrain from administering it unless reasonably satisfied that there was no risk of harm.  As that was not the case here, as the trial judge found, the conviction was properly entered and should not be disturbed.

 

Per La Forest J.:  Both at the constitutional level and in the interpretation of offences, the adoption of subjective rather than objective mens rea was favoured.  The subjective view of mens rea underlines that no one will be punished for anything he or she did not intend or at least advert to, and its use supports one's feeling that a morally innocent person will not be punished.  The objective view, however qualified, does not fully serve these ends, and loses most of the practical advantages sought to be attained by the objective approach.  Objective mens rea as to consequence should accordingly not be qualified in the manner proposed by Lamer C.J.  The position taken by McLachlin J. would also seem to be favoured by this Court's decision in R. v. DeSousa.  McLachlin J.'s view that foreseeability of the risk of bodily injury, rather than death, is sufficient was also preferred.

 


Per Lamer C.J. and Sopinka, Iacobucci and Major JJ.:  There is no general constitutional principle requiring subjective foresight for criminal offences.  There are, however, certain crimes where, because of the special nature of the stigma attached to a conviction therefor or the available penalties, the principles of fundamental justice require a mens rea reflecting the particular nature of that crime.  In analysing social stigma, the court must first look to the conduct being punished to determine if it is of sufficient gravity to import significant moral opprobrium on the individual found guilty of engaging in such conduct.  The second branch of the stigma test concerns the moral blameworthiness not of the offence, but of the offender found guilty of committing it.  As a general proposition, more stigma will attach to those who knowingly engage in wrongful conduct than to those who recklessly or inadvertently engage in the same conduct.

 

Unlawful act manslaughter falls into the class of offences where a mental element in relation to the consequence must be established, and the stigma attached to a conviction for culpable homicide is significant enough to require, at a minimum, objective foresight of the risk of death in order for the offence to comply with s. 7 of the Charter.  Section 222(5)(a) of the Code is open to the interpretation that objective foreseeability of death is required by virtue of the section, an interpretation that would render it constitutional.  In accordance with the requirements of s. 7 of the Charter, the proper interpretation of unlawful act manslaughter under s. 222(5)(a) of the Code requires the Crown to prove beyond reasonable doubt:  (a) that the accused has committed an unlawful act which caused the death of the deceased; (b) that the unlawful act must be one that is objectively dangerous (i.e., in the sense that a reasonable person would realize that it gives rise to a risk of harm); (c) that the fault requirement of the predicate offence, which cannot extend to offences of absolute liability, was in existence and (d) that a reasonable person in the circumstances of the accused would foresee the unlawful act giving rise to a risk of death.


In determining whether a reasonable person in the circumstances of the accused would have foreseen the risk of death arising from the unlawful act, the trier of fact must pay particular attention to any human frailties which might have rendered the accused incapable of having foreseen what the reasonable person would have foreseen.  Once the Crown has established beyond a reasonable doubt that this reasonable person in the context of the offence would have foreseen the risk of death created by his or her conduct, the focus of the investigation must shift to the question of whether a reasonable person in the position of the accused would have been capable of foreseeing such a risk.

 


Where the accused is charged with the offence of unlawful act manslaughter, the trier of fact must ask the threshold question of whether a reasonable person in the same circumstances would have been aware that the likely consequences of his or her unlawful conduct would create the risk of death.  If the answer is no, then the accused must be acquitted.  If the answer is yes, however, the trier must then ask whether the accused was unaware (a) because he or she did not turn his or her mind to the consequences of the conduct and thus to the risk of death likely to result, or (b) because he or she lacked the capacity to turn his or her mind to the consequences of the conduct and thus to the risk of death likely to result, due to human frailties.  If the answer is (a), the accused must be convicted, since the criminal law cannot allow the absence of actual awareness to be an excuse to criminal liability.  If the answer is (b), the trier must ask whether in the context of the particular offence, the reasonable person with the capacities of the accused would have made him- or herself aware of the likely consequences of the unlawful conduct and the resulting risk of death.  In this third and final stage of the inquiry, the accused's behaviour is still measured against the standard of the reasonable person, but the reasonable person is constructed to account for the accused's particular capacities and resulting inability to perceive and address certain risks.

 

Human frailties encompass personal characteristics habitually affecting an accused's awareness of the circumstances which create risk.  Such characteristics must be relevant to the ability to perceive the particular risk.  In addition, the relevant characteristics must be traits which the accused cannot control or otherwise manage in the circumstances.  Two central criteria are the gravity of the offence and the inherent purposefulness of the conduct involved.

 

In this case the trial judge concluded that the accused foresaw the risk of death or serious bodily harm in injecting the deceased with cocaine, given the lethal nature of the narcotic in question and the fashion in which it was administered, the familiarity of the accused with the drug and its dangerous properties.  The trial judge erred in adopting the standard of objective foreseeability with respect to unlawful act manslaughter contained in an earlier line of cases which referred to "the risk of some harm", but since he found that the accused actually did appreciate the risk of death, it is clear that had he instructed himself properly, he would necessarily have arrived at the same verdict.  There is therefore no substantial wrong or miscarriage of justice which would require a new trial.

 


Cases Cited

 

By McLachlin J.

 

Applied:  R. v. DeSousa, [1992] 2 S.C.R. 944;  referred to:  R. v. Larkin, [1943] 1 All E.R. 217; R. v. Tennant (1975), 23 C.C.C. (2d) 80; R. v. Adkins (1987), 39 C.C.C. (3d) 346; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. Dixon (1814), 3 M. & S. 11, 105 E.R. 516; R. v. Hicklin (1868), L.R. 3 Q.B. 360; R. v. Aspinall (1876), 2 Q.B.D. 48; R. v. Serné (1887), 16 Cox 311; Smithers v. The Queen, [1978] 1 S.C.R. 506; R. v. Cole (1981), 64 C.C.C. (2d) 119; R. v. Lelievre, [1962] O.R. 522; R. v. Cato (1975), 62 Cr. App. R. 41; Director of Public Prosecutions v. Newbury (1976), 62 Cr. App. R. 291; R. v. Fraser (1984), 16 C.C.C. (3d) 250; United States v. Robertson, 19 C.M.R. 102 (1955); Tucker v. Commonwealth, 303 Ky. 864 (1947); Nelson v. State, 58 Ga. App. 243 (1938); Rutledge v. State, 41 Ariz. 48 (1932); R. v. Théroux, [1993] 2 S.C.R. 5; R. v. Lippé, [1991] 2 S.C.R. 114; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; R. v. Finlay, [1993] 3 S.C.R. 000; R. v. Brooks (1988), 41 C.C.C. (3d) 157; R. v. Hundal, [1993] 1 S.C.R. 867; R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; R. v. Sansregret, [1985] 1 S.C.R. 570; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Gosset, [1993] 3 S.C.R. 000; R. v. Naglik, [1993] 3 S.C.R. 000; Perka v. The Queen, [1984] 2 S.C.R. 232; R. v. Hill, [1986] 1 S.C.R. 313; Salamon v. The Queen, [1959] S.C.R. 404; McErlean v. Sarel (1987), 61 O.R. (2d) 396; Dellwo v. Pearson, 107 N.W.2d 859 (1961); Vaughan v. Menlove (1837), 3 Bing. (N.C.) 468, 132 E.R. 490; R. v. Tutton, [1989] 1 S.C.R. 1392; R. v. Rogers, [1968] 4 C.C.C. 278; R. v. Sullivan (1986), 31 C.C.C. (3d) 62; R. v. Crick (1859), 1 F. & F. 519, 175 E.R. 835.


By La Forest J.

 

Considered:  R. v. DeSousa, [1992] 2 S.C.R. 944;  referred to:  R. v. Gosset, [1993] 3 S.C.R. 000; R. v. Naglik, [1993] 3 S.C.R. 000; R. v. Tutton, [1989] 1 S.C.R. 1392; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154;  R. v. Hundal, [1993] 1 S.C.R. 867.

 

By Lamer C.J.

 

Considered:  R. v. DeSousa, [1992] 2 S.C.R. 944; R. v. L. (S.R.) (1992), 11 O.R. (3d) 271; not followed:  R. v. Church (1965), 49 Cr. App. R. 206; R. v. Tennant (1975), 23 C.C.C. (2d) 80;  referred to:  R. v. Larkin (1942), 29 Cr. App. R. 18; Director of Public Prosecutions v. Newbury (1976), 2 Cr. App. R. 291; R. v. Lelievre, [1962] O.R. 522; R. v. Adkins (1987), 39 C.C.C. (3d) 346; R. v. Tutton, [1989] 1 S.C.R. 1392; R. v. Waite, [1989] 1 S.C.R. 1436; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Hundal, [1993] 1 S.C.R. 867; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. Gosset, [1993] 3 S.C.R. 000; Colpitts v. The Queen, [1965] S.C.R. 739.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms, s. 7.

 

Criminal Code, R.S.C., 1985, c. C‑46, ss. 222(5)(a), (b), 234, 236, 249(3), (4), 255(2), (3), 269, 686(1)(b)(iii).

 

Narcotic Control Act, R.S.C., 1985, c. N‑1, ss. 2, 4.

 


Authors Cited

 

Binchy, William.  "The Adult Activities Doctrine in Negligence Law" (1985), 11 Wm. Mitchell L. Rev. 733.

 

Blackstone, Sir William.  Commentaries on the Laws of England, Book IV.  Oxford:  Clarendon Press, 1769.

 

Briggs, Adrian.  "In Defence of Manslaughter", [1983] Crim. L.R. 764.

 

Burbidge, G. W.  Digest of the Criminal Law of Canada.  Toronto:  Carswell, 1980.

 

Colvin, Eric.  Principles of Criminal Law, 2nd ed.  Scarborough, Ont.:  Thomson, 1991.

 

Fletcher, George P.  "The Individualization of Excusing Conditions" (1974), 47 S. Cal. L. Rev. 1269.

 

Fruchtman, Earl.  "Recklessness and the Limits of Mens Rea:  Beyond Orthodox Subjectivism" (1986‑1987), 29 Crim. L.Q. 421.

 

Hart, H. L. A.  "Negligence, Mens Rea and Criminal Responsibility".  In Punishment and Responsibility:  Essays in the Philosophy of Law.  Oxford:  Clarendon Press, 1968.

 

Heuston, R. F. V., and R. A. Buckley.  Salmond and Heuston on the Law of Torts, 20th ed.  London:  Sweet & Maxwell, 1992.

 

Holmes, Oliver Wendell.  The Common Law.  Boston:  Little, Brown, 1881.

 

LaFave, Wayne R., and Austin W. Scott.  Substantive Criminal Law, vol. 2. St. Paul, Minn:  West Publishing, 1986.

 

Linden, Allen M.  Canadian Tort Law, 4th ed.  Toronto:  Butterworths, 1988.

 

Martin, G. A.  "Case Comment on R. v. Larkin" (1943), 21 Can. Bar Rev. 503.

 

Pickard, Toni.  "Culpable Mistakes and Rape:  Relating Mens Rea to the Crime" (1980), 30 U.T.L.J. 75.

 

Rauf, M. Naeem.  "The Reasonable Man Test in the Defence of Provocation:  What are the Reasonable Man's Attributes and Should the Test be Abolished?" (1987), 30 Crim. L.Q. 73.

 

Stuart, Don.  Canadian Criminal Law:  A Treatise, 2nd ed.  Toronto:  Carswell, 1987.

 


APPEAL from a judgment of the Ontario Court of Appeal (1991), 66 C.C.C. (3d) 317, 50 O.A.C. 395, dismissing the accused's appeal from his conviction on a charge of manslaughter.  Appeal dismissed.

 

James C. Fleming and Timothy E. Breen, for the appellant.

 

Jocelyn Van Overbeek, for the respondent.

 

Marian V. Fortune‑Stone, for the intervener the Attorney General of Canada.

 

François Huot and Mario Tremblay, for the intervener the Attorney General of Quebec.

 

Graeme G. Mitchell, for the intervener the Attorney General for Saskatchewan.

 

The reasons of Lamer C.J. and Sopinka, Iacobucci and Major JJ. were delivered by

 

Lamer C.J. -- This case concerns the constitutionality of s. 222(5)(a) of the Criminal Code, R.S.C., 1985, c. C-46, and specifically, whether s. 7 of the Canadian Charter of Rights and Freedoms mandates a subjective mens rea for the crime of manslaughter.

 

I.                 Facts


The events giving rise to this appeal took place over an 18-hour period beginning on the evening of October 26, 1989.  A group including the appellant, Marc Creighton, and the deceased, Ms. Martin, consumed a large quantity of alcohol and cocaine that night.  In the afternoon of the following day, the appellant, a companion (Frank Caddedu) and the deceased planned to share a quantity of cocaine at the deceased's apartment.  The evidence indicates that all of the parties involved were experienced cocaine users.

 

The appellant obtained an "eight-ball" (3.5 gr.) of cocaine.  He did not seek to determine the quality or potency of the cocaine before injecting the drug intravenously into himself and Frank Caddedu.  With the consent of the deceased, the appellant then injected a quantity of cocaine into the deceased's right forearm.  She immediately began to convulse violently and appeared to cease breathing.  Subsequent expert testimony confirmed that, as a result of the injection, she had experienced a cardiac arrest, and later asphyxiated on the contents of her stomach.

 

Both the appellant and Mr. Caddedu attempted unsuccessfully to resuscitate Ms. Martin.  Mr. Caddedu indicated he wanted to call for emergency assistance but the appellant, by verbal intimidation, convinced Mr. Caddedu not to call 911.  The appellant placed the deceased, who was still convulsing, on her bed.  The appellant then proceeded to clean the apartment of any possible fingerprints.  The two men then left the apartment.  Mr. Caddedu returned unaccompanied to the deceased's apartment six or seven hours later and called for emergency assistance.  Ms. Martin was thereupon pronounced dead.  The appellant related a substantially different version of the events in question, but this testimony was disbelieved by the trial judge.


                   The appellant was charged with manslaughter.  Defence counsel conceded at trial that the injection into the deceased's body constituted "trafficking" within the meaning of s. 4(1) of the Narcotic Control Act, R.S.C., 1985, c. N-1.  The Crown argued that the appellant was guilty of manslaughter as Ms. Martin's death was the direct consequence of an unlawful act, contrary to s. 222(5)(a) of the Criminal Code.

 

The appellant was convicted of manslaughter on May 18, 1990, and sentenced to four years' imprisonment.  The appellant appealed to the Ontario Court of Appeal, which affirmed the conviction.

 

II.                Relevant Statutory and Constitutional Provisions

Narcotic Control Act, R.S.C., 1985, c. N-1

 

 

   2.  In this Act,

                                                                    ...

 

"traffic" means

 

(a) to manufacture, sell, give, administer, transport, send, deliver or distribute, or

 

(b) to offer to do anything referred to in paragraph (a)

 

otherwise than under the authority of this Act or the regulations.

 

                                                                   . . .

 

   4. (1) No person shall traffic in a narcotic or any substance represented or held out by the person to be a narcotic.

 

(2) No person shall have in his possession any narcotic for the purpose of trafficking.

 

(3) Every person who contravenes subsection (1) or (2) is guilty of an indictable offence and liable to imprisonment for life.

 

 

 

Criminal Code, R.S.C., 1985, c. C-46


 

222....

 

(5) A person commits culpable homicide when he causes the death of a human being,

 

(a)       by means of an unlawful act;

 

(b)       by means of criminal negligence;

 

                                                                   . . .

 

234.  Culpable homicide that is not murder or infanticide is manslaughter.

 

                                                                   . . .

 

236.  Every one who commits manslaughter is guilty of an indictable offence and liable to imprisonment for life.

 

III.               Decisions Below

District Court

 

Locke Dist. Ct. J. relied on Mr. Caddedu's version of the events surrounding the death of Ms. Martin, despite acknowledging the inherent risk in accepting the testimony of a "confessed drug addict".  Locke Dist. Ct. J. characterized the burden of the Crown in order to convict an accused of the offence of unlawful act manslaughter under s. 222(5)(a) of the Code as the following:

 

The Crown must prove beyond a reasonable doubt, before manslaughter is proven, that the accused, (1) committed an unlawful act, (2) that the act must be unlawful for a reason other than the negligent manner of its performance, and (3) that the act must be likely to cause harm of more than a trifling nature.

 


Locke Dist. Ct. J. held that the first two branches of the offence had been established by the Crown; the unlawful act in question was trafficking in a narcotic as set out in s. 4(1) of the Narcotic Control Act, and the cause of death was unrelated to any negligence in performing the unlawful act.  With respect to the third branch, he stated:  "in my respectful view, the `dangerousness' must be assessed on an objective standard", citing R. v. Larkin (1942), 29 Cr. App. R. 18 (C.C.A.); R. v. Church (1965), 49 Cr. App. R. 206 (C.C.A.); Director of Public Prosecutions v. Newbury (1976), 62 Cr. App. R. 291 (H.L.)**; R. v. Lelievre, [1962] O.R. 522 (C.A.); R. v. Tennant (1975), 23 C.C.C. (2d) 80 (Ont. C.A.); and R. v. Adkins (1987), 39 C.C.C. (3d) 346 (B.C.C.A.), in support of this position.  Applying this standard, the trial judge noted the inherent danger of prohibited narcotics such as cocaine and convicted the appellant of unlawful act manslaughter.

 

Locke Dist. Ct. J. also went on to find the accused guilty of manslaughter by criminal negligence under s. 222(5)(b) of the Code.  In this regard, he observed that the Supreme Court in R. v. Tutton, [1989] 1 S.C.R. 1392, and R. v. Waite, [1989] 1 S.C.R. 1436, had evenly divided on whether the mens rea for criminal negligence is to be determined by an objective or subjective test.  Locke Dist. Ct. J. chose to apply the objective test.  In convicting the appellant, he concluded that the appellant knew he was injecting into the deceased a "very dangerous, volatile, lawfully prohibited narcotic, capable of causing death or serious bodily harm".

 

The appellant was, in the result, found guilty of manslaughter and sentenced to four years' imprisonment.

 


Court of Appeal (1991), 66 C.C.C. (3d) 317

 

Finlayson J.A. (Blair and Krever JJ.A. concurring) found that the only issue relating to the appellant's appeal from his conviction which needed to be addressed  was "whether the offence of unlawful act manslaughter, as interpreted by R. v. Church [supra], and R. v. Tennant [supra], is incompatible with s. 7 of the [Charter] as being contrary to the principles of fundamental justice" (p. 318).  Finlayson J.A. concluded that this case did not constitute an appropriate vehicle by which to determine the constitutionality of unlawful act manslaughter.  This conclusion was based on the trial judge's finding that the appellant was guilty under both s. 222(5)(a) and (b), and that the appellant's foreseeability of harm met a standard well above that required by the caselaw.  In other words, based on the trial judge's findings, the appellant would be convicted under either the objective or the subjective test for the mens rea component of manslaughter. 

 

Consequently, Finlayson J.A. held it was unnecessary to decide the validity of the unlawful act manslaughter provision under s. 7 of the Charter, though he noted that the standard the trial judge imposed on himself with regard to criminal negligence "certainly passes scrutiny" (p. 319).  The Court of Appeal, thus, dismissed the appeal from conviction, and additionally, declined to interfere with the sentence imposed at trial.

 

IV.              Issues

 

I stated the following constitutional question by an order dated February 11, 1992:


Does the common law definition of unlawful act manslaughter contravene s. 7 of the Canadian Charter of Rights and Freedoms?

 

V.                Analysis

 

A.                Constitutionality of s. 222(5)(a) of the Criminal Code

 

Since the decision of this Court in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 496, courts have been "empowered, indeed required, to measure the content of legislation" against the principles of fundamental justice contained in s. 7 of the Charter, and specifically, to ensure that the morally innocent not be punished.  In R. v. Vaillancourt, [1987] 2 S.C.R. 636, I emphasized that the guiding principle underlying the constitutional analysis of fault in criminal law is that the state cannot punish a person as morally blameworthy unless such blameworthiness has been established.  For example, as I stated in Vaillancourt, at p. 653, if the purpose of a crime is to punish a person for theft, the elements of that crime must include proof beyond a reasonable doubt of dishonesty. 

 

In Vaillancourt, I emphasized that the hallmark of murder is that there must be some special mental element with respect to death which gives rise to the moral blameworthiness which justifies the stigma and sentence attached to a murder conviction.  As I said, at p. 654:

 


... murder is distinguished from manslaughter only by the mental element with respect to the death.  It is thus clear that there must be some special mental element with respect to the death before a culpable homicide can be treated as a murder.  That special mental element gives rise to the moral blameworthiness which justifies the stigma and sentence attached to a murder conviction.  I am presently of the view that it is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight.  [Emphasis added.]

 

In Tutton, at pp. 1434-35, I expressly left open the question of what the principles of fundamental justice require as regards the fault requirement for manslaughter.

 

It is now well established that there is a group of offences, albeit a small group, that requires a subjectively determined culpable mental state in relation to the prohibited result.  As I said in Vaillancourt, supra, at p. 653:

 

 

But, whatever the minimum mens rea for the act or the result may be, there are, though very few in number, certain crimes where, because of the special nature of the stigma attached to a conviction therefor or the available penalties, the principles of fundamental justice require a mens rea reflecting the particular nature of that crime.

 

Subsequent decisions of this Court, notably R. v. Hundal, [1993] 1 S.C.R. 867, and R. v. DeSousa, [1992] 2 S.C.R. 944, make it clear that there is no general constitutional principle requiring subjective foresight for criminal offences.  In other words, an objective fault requirement is constitutionally sufficient for a broad range of offences other than those falling within the relatively small group of offences alluded to in Vaillancourt

 


The only basis upon which subjective foresight of death or the risk of death could be found to be constitutionally required in the case of unlawful act manslaughter, therefore, would be to find that the offence is one of those crimes for which "because of the special nature of the stigma attached to a conviction therefor or the available penalties, the principles of fundamental justice require a mens rea reflecting the particular nature of that crime":  see R. v. Vaillancourt, per Lamer J., at p. 653.

 

There are two main branches to the analysis of social stigma.  First the court must look to the conduct being punished to determine if it is of sufficient gravity to import significant moral opprobrium on the individual found guilty of engaging in such conduct.  In the case of manslaughter under s. 222(5)(a), the conduct in question consists of killing someone as a consequence of committing an unlawful act.  In this respect, there may well be no difference between the actus reus of manslaughter and that of murder; arguably both give rise to the stigma of being labelled by the state and the community as responsible for the wrongful death of another.  Clearly, there can be no conduct in our society more grave than taking the life of another without justification. 

 

The second branch of the stigma test concerns the moral blameworthiness not of the offence, but of the offender found guilty of committing it.  As a general proposition, more stigma will attach to those who knowingly engage in wrongful conduct than to those who recklessly or inadvertently engage in the same conduct.  As I stated in R. v. Martineau, [1990] 2 S.C.R. 633, at pp. 645-46:

 

The rationale underlying the principle that subjective foresight of death is required before a person is labelled and punished as a murderer is linked to the more general principle that criminal liability for a particular result is not justified except where the actor possesses a culpable mental state in respect of that result....  The essential role of requiring subjective foresight of death in the context of murder is to maintain a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender.

 


In my view, the stigma which attaches to a conviction for unlawful act manslaughter is significant, but does not approach the opprobrium reserved in our society for those who knowingly or intentionally take the life of another.  It is for this reason that manslaughter developed as a separate offence from murder at common law.

 

What then is the constitutionally required fault element with respect to unlawful act manslaughter?  In this regard, the recent decision of this Court in DeSousa is instructive.  At issue in that case was the constitutional sufficiency of the offence of unlawfully causing bodily harm (s. 269 of the Code).  The unanimous Court (Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.), speaking through Sopinka J., found that a fault requirement based on objective foreseeability of the risk of bodily harm, coupled with the fault requirement of the predicate unlawful act (which itself must be constitutionally sufficient), satisfies the principles of fundamental justice under s. 7 of the Charter.  Sopinka J. for the Court said, at p. 962:

 

 


The mental element of s. 269 [viz. unlawfully causing bodily harm] has two separate aspects.  The first aspect of the mental element is the requirement that an underlying offence with a constitutionally sufficient mental element has been committed.  Additionally, s. 269 requires that the prosecution prove that the bodily harm caused by the underlying unlawful act was objectively foreseeable.  This latter requirement insures that all prosecutions under s. 269 contain at least a fault requirement based on an objective standard.  As this Court has not indicated that fundamental justice requires fault based on a subjective standard for all offences, the mental element required by s. 269 passes constitutional muster unless s. 269 is one of those few offences which due to its stigma and penalty require fault based on a subjective standard.  I agree with the respondent and interveners that s. 269 has neither the stigma nor criminal sanction to require a more demanding mental element than it already has.  The criminal sanction is flexible and thus can be tailored to suit the circumstances of the case.  The stigma associated with conviction will generally reflect the degree of opprobrium which the underlying offence attracts.  The stigma attached to the underlying offence will in turn influence the minimum mental requirement for that offence.  [First emphasis added; second emphasis in original.]

 

With these comments I respectfully agree.  

 

Moreover, in the recent case R. v. L. (S.R.) (1992), 11 O.R. (3d) 271, at pp. 281-83, the Ontario Court of Appeal found, in the context of an examination of the offence of aggravated assault (which provides that everyone commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant), that objective foreseeability of wounding, maiming, disfiguring or endangering the life of the complainant was a sufficient fault requirement to satisfy s. 7 of the Charter.

 


In DeSousa, while Sopinka J. found the offence of unlawfully causing bodily harm to require proof of objective foresight of the risk of bodily harm, he observed that there is no constitutional requirement that, in every case, it is necessary to prove a mental element extending to the consequences of unlawful conduct.  With these comments I agree, for the reasons I shall now elaborate.  I am of the view that while there is a general constitutional requirement that a mental element must relate to the consequences of an underlying act where an offence is structured in that fashion, the existence of that mental element may be established in one of two ways.  First, for offences where a consequence forms the essence of an offence, such that it can be said that the pith and substance of the offence includes a particular consequence, as is the case with death in the offence of unlawful act manslaughter and with bodily harm in the offence of unlawfully causing bodily harm, a fault element must be demonstrated beyond a reasonable doubt in relation to that consequence.  Secondly, for offences where a consequence forms part of the actus reus of an offence, but where the essence of the offence is conduct which is inherently risky to life or limb, such offences are therefore presumed to involve objective foresight of the risk.  In other words, proof of the accused having engaged in prohibited conduct which is such that any reasonable person would inevitably have foreseen the risk involved will serve as a substitute for objective foresight, relieving the prosecution from having to introduce additional evidence to prove the existence of such foresight.  The possibility of satisfying a constitutional requirement by means of such a substituted element was discussed in Vaillancourt, supra, at p. 656, where I stated the following:

 

Finally, the legislature, rather than simply eliminating any need to prove the essential element, may substitute proof of a different element.  In my view, this will be constitutionally valid only if upon proof beyond reasonable doubt of the substituted element it would be unreasonable for the trier of fact not to be satisfied beyond reasonable doubt of the existence of the essential element.

 

Examples of the class of offences where a substituted element for proof of foreseeability will satisfy s. 7 of the Charter are few, but would include offences such as impaired driving causing bodily harm (s. 255(2)), impaired driving causing death (s. 255(3)), dangerous operation causing bodily harm (s. 249(3)) and dangerous operation causing death (s. 249(4)).  What these offences have in common is that the moral blameworthiness of the offence stems from the conduct of driving a car in a fashion which creates a high risk of injury.  Whether such an injury leads to bodily harm or death will increase the seriousness of the punishment that will flow from a conviction, but the result does not alter the essence of the moral blameworthiness being punished.

 


Thus, as I stated, unlawful act manslaughter falls into the class of offences where a mental element in relation to the consequence must be established, but in any event, I find the stigma attached to a conviction for culpable homicide, albeit culpable homicide which is not murder, to be significant enough to require, at a minimum, objective foresight of the risk of death in order for the offence to comply with s. 7 of the Charter.

 

Having concluded that s. 7 of the Charter requires nothing less than objective foreseeability of the risk of death, it remains to consider whether s. 222(5)(a) is open to an interpretation that would render it constitutional in this regard.

 

At the outset, it must be acknowledged that there is a considerable body of authority for the view that unlawful act manslaughter, as a matter of statutory interpretation, requires only objective foreseeability of the risk of harm.  Many of these authorities are reviewed in the judgment of Sopinka J. for the Court in DeSousa.  These authorities were there reviewed, however, in connection with the Court's discussion of the definition of the term "unlawful act" in unlawful act manslaughter rather than in the context of ruling on, as a matter of constitutional validity, what must be objectively foreseeable.  The Court in DeSousa, of course, was not addressing and did not decide the question of the proper interpretation of the fault requirement under s. 222(5)(a).

 


There is, however, a persuasive argument to be made that, as a matter of statutory interpretation, unlawful act manslaughter requires objective foreseeability of the risk of death.  This argument has been set forth with commendable conciseness by the Ontario Court of Appeal in its decision in R. v. L.(S.R.), supra.  After a careful review of the decision of this Court in DeSousa, the Ontario Court of Appeal concluded, at p. 280:

 

In DeSousa, the court required objective foresight of the risk of the harm proscribed by s. 269, that is, the risk of bodily harm.  If the parallel between the two sections [i.e. between ss. 269 and 268] is to be complete, s. 268 should require objective foresight of the risk of wounding, maiming, disfiguring or endangering the life of the complainant.  This interpretation would not only maintain the parallel between s. 269 and s. 268, but would also provide a symmetry between the result component of the actus reus and the fault requirement.  This balance is consistent with general criminal law principles of statutory interpretation which relate the fault inquiry to the elements of the actus reus provided in the statutory definition of the crime.  An interpretation which directs the fault inquiry to the harmful result component of the actus reus would also make it easier to explain the essential elements of the offence to the jury.  The jury would be told that they must determine whether one of the results enumerated in s. 268 was caused by the assault and whether a reasonable person would inevitably have realized that the assault would subject another to the risk of one of those enumerated results.  Both inquiries are keyed to the words of s. 268.

 

While it is not necessary for me to endorse the reasoning of the Ontario Court of Appeal in R. v. L. (S.R.), given that that case was concerned with the interpretation of the offence of aggravated assault, the logic of DeSousa and of R. v. L. (S.R.) makes it plain that s. 222(5)(a) of the Code is open to the interpretation that objective foreseeability of death is required by virtue of the section.  I say this fully recognizing that many decisions, some of which are reviewed in DeSousa, have interpreted this section as requiring only objective foresight of the risk of some harm.  However, in light of the constitutional imperative, the wording of the section, and the reasoning employed by this Court in DeSousa and the Ontario Court of Appeal in R. v. L. (S.R.), I have no hesitation in concluding that the section is open to an interpretation that would render it constitutional.

 


Therefore, in accordance with the requirements of s. 7 of the Charter, the proper interpretation of unlawful act manslaughter under s. 222(5)(a) of the Code requires the Crown to prove beyond reasonable doubt: (a) that the accused has committed an unlawful act which caused the death of the deceased; (b) that the unlawful act must be one that is objectively dangerous (i.e., in the sense that a reasonable person would realize that it gives rise to a risk of harm); (c) that the fault requirement of the predicate offence, which cannot extend to offences of absolute liability, was in existence and (d) that a reasonable person in the circumstances of the accused would foresee the unlawful act giving rise to a risk of death.

 

The second element of unlawful act manslaughter involves a determination, as a question of law, of whether the predicate unlawful act is objectively dangerous.  The fourth element, however, asks the trier of fact to place the reasonable person in the circumstances of the accused in order to determine whether the risk of death created by the unlawful act was objectively foreseeable by the accused.  I shall now turn to elaborating the test to be applied wherever such an objective determination of fault is required in criminal law.

 

B.                The Objective Test

 


An accused can only be held to the standard of a reasonable person if the accused was capable, in the circumstances of the offence, of attaining that standard.  Consequently, in determining whether a reasonable person in the circumstances of the accused would have foreseen the risk of death arising from the unlawful act, the trier of fact must pay particular attention to any human frailties which might have rendered the accused incapable of having foreseen what the reasonable person would have foreseen.  If the criminal law were to judge every accused by the inflexible standard of the monolithic "reasonable person", even where the accused could not possibly have attained that standard, the result, as Stuart notes, would be "absolute responsibility" for such persons:  Canadian Criminal Law:  A Treatise (2nd ed. 1987), at p. 192.  H. L. A. Hart advanced a similar argument in "Negligence, Mens Rea and Criminal Responsibility" in Punishment and Responsibility (1968), at p. 154:

 

If our conditions of liability are invariant and not flexible, i.e. if they are not adjusted to the capacities of the accused, then some individuals will be held liable for negligence though they could not have helped their failure to comply with the standard.

 

This principle of culpability was elaborated further by E. Fruchtman, "Recklessness and the Limits of Mens Rea: Beyond Orthodox Subjectivism" (1986-1987), 29 Crim. L.Q. 421, at p. 446:

 

It is essential, if criminal responsibility is to rest on fault, that the culpability of the accused's inadvertence does not depend entirely upon what a reasonable person would be expected to foresee in the circumstances.  The accused must have the capacities and the abilities that are necessary to enable him to foresee what a reasonable person would foresee.  Although the jury may presume the accused's capacities and abilities as an evidentiary matter, the burden of proof lies on the prosecution and the accused will always be entitled to attempt to persuade the jury otherwise.

 


The Crown bears the burden of proving beyond a reasonable doubt that a reasonable person in the context of the offence would have foreseen the risk of death created by his or her conduct.  As I explain in more detail in R. v. Gosset, [1993] 3 S.C.R. 000, released this same day, the reasonable person will be invested with any enhanced foresight the accused may have enjoyed by virtue of his or her membership in a group with special experience or knowledge related to the conduct giving rise to the offence.  For example, in Gosset the accused police officer's experience and training in the handling of firearms is relevant to the standard of care under s. 86(2) of the Criminal Code concerning the careless use of firearms.  In the present case, the reasonable person should be deemed to possess Mr. Creighton's considerable experience in drug use.  Once the Crown has established beyond a reasonable doubt that this reasonable person in the context of the offence would have foreseen the risk of death created by his or her conduct, the focus of the investigation must shift to the question of whether a reasonable person in the position of the accused would have been capable of foreseeing such a risk.  The objective test cannot, to reiterate, relieve the accused of criminal liability simply because he or she did not, in fact, foresee creating the risk of death.  I wish to reiterate that the standard of care remains uniform and unchanging irrespective of the particular accused -- the prosecution must demonstrate a marked departure from the standard of a reasonable person; rather, it is in the determination of what is reasonable that the skill and expertise of the accused may be considered.

 

The objective test can be best understood when stated as a "checklist" for the trier of fact to apply to the accused's conduct in a particular case.  Where the accused is charged with the offence of unlawful act manslaughter, the trier of fact must ask:

 

(1)  Would a reasonable person in the same circumstances have been aware that the likely consequences of his or her unlawful conduct would create the risk of death?

 


This question provides the threshold to the objective test.  If the answer to this question is No, then the accused must be acquitted.  If the answer is Yes, however, the trier must then ask:

 

(2) Was the accused unaware

 

(a)  because he or she did not turn his or her mind to the consequences of the conduct and thus to the risk of death likely to result; or

 

(b)  because he or she lacked the capacity to turn his or her mind to the consequences of the conduct and thus to the risk of death likely to result, due to human frailties?

 

If the answer is (a), the accused must be convicted, since the criminal law cannot allow the absence of actual awareness to be an excuse to criminal liability.  An important distinction must be maintained within the objective test between the capacity to decide to turn one's mind to a risk, and the decision not to turn one's mind to it.  As Colvin, Principles of Criminal Law (2nd ed. 1991), notes, at p. 155:

 

As long as attention is directed to the individual's own capabilities, a judgment of fault can be made on the ground that there was a fair opportunity to have recognized the risks and harm of conduct.

 


A key element of the objective test is that of the control an accused could have exercised over the frailty which rendered him or her incapable of acting as the reasonable person would in the same circumstances.  The notion of control is related to that of moral responsibility; if one is able to act prudently and not endanger the life of others, one will be held liable for failing to do so.  One must be morally -- and criminally -- responsible to act according to his or her capacities not to inflict harm, even unintentional harm.  By contrast, the inability to control a particular frailty which resulted in the creation of the risk may offer a moral excuse for having brought about that risk.  Therefore, if the answer to the second branch of the objective test is (b), the third and final stage of the inquiry is required:

 

(3) In the context of the particular offence, would the reasonable person with the capacities of the accused have made him- or herself aware of the likely consequences of the unlawful conduct and the resulting risk of death?

 

In this inquiry, the accused's behaviour is still measured against the standard of the reasonable person, but the reasonable person is constructed to account for the accused's particular capacities and resulting inability to perceive and address certain risks.  This test is similar to that advocated by Hart, in "Negligence, Mens Rea and Criminal Responsibility", supra, at p. 154:

 

(i)    Did the accused fail to take those precautions which any reasonable man with normal capacities would in the circumstances have taken?

 

(ii)   Could the accused, given his mental and physical capacities, have taken those precautions?

 

It must be emphasized that this is not a subjective test:  if a reasonable person with the frailties of the accused would nevertheless have appreciated the risk, and the accused did not in fact appreciate the risk, the accused must be convicted.

 


The rationale of incorporating capacity into the objective determination of fault is analogous to the rationale underlying the defence of mistake of fact in criminal law, where an accused who has an honest and reasonably held belief in an incorrect set of facts, and acts on the basis of those facts, is excused from punishment for the resulting harm.  Human frailties which may affect the capacity of an accused to recognize the risks of unlawful conduct must be considered, however, not because they result in the accused believing in an incorrect set of facts, but rather because they render the accused incapable of perceiving the correct set of facts.  It is, however, only those human frailties which relate to an accused's capacity to appreciate the risk in question that may be considered in this inquiry.

 

I shall now turn to elaborating what "human frailties" may factor into the objective test.  It is perhaps best to begin by stating clearly what is not included.   Intoxication or impairment through drug use which occurs as a result of voluntary consumption cannot serve to vitiate liability for the risks created by the negligent conduct of an accused.  Additionally, a sudden and temporary incapacity to appreciate risk due to exigent circumstances (an emergency which diverts one's attention from an activity, for example) is not properly considered under the third part of the test, but may well result in an acquittal under the first part of the test, that is, would a reasonable person's attention in the same circumstances of the accused have been diverted from that activity.

 


Human frailties encompass personal characteristics habitually affecting an accused's awareness of the circumstances which create risk.  Such characteristics must be relevant to the ability to perceive the particular risk.  For example, while illiteracy may excuse the failure to take care with a hazardous substance identifiable only by a label, as the accused may be unable, in this case, to apprehend the relevant facts, illiteracy may not be relevant to the failure to take care with a firearm.  This attention to the context of the offence and the nature of the activity is explored in greater detail below. 

 

It should be emphasized that the relevant characteristics must be traits which the accused could not control or otherwise manage in the circumstances.  For example, while a person with cataracts cannot be faulted for having reduced vision, he or she may be expected to avoid activity in which that limitation will either create risk or render him or her unable to manage risk which is inherent in an activity (driving, for example).  The reasonable person is expected to compensate for his or her frailties, to the extent he or she is conscious of them and able to do so.

 

This general discussion is not intended to set out an exhaustive definition, but rather to lay the groundwork for examining the different factual contexts which may arise.  Two central criteria in this regard are (1) the gravity of the offence, and (2) the inherent purposefulness of the conduct involved.  With respect to the gravity of the offence, there may be a significant gulf between neglecting to safely store a bottle containing a prescription drug, and neglecting to unload a firearm and return it to its cabinet.  In these different contexts, the behaviour of the reasonable person who possesses all of the accused's limitations may be very different, and therefore the answer to the third question regarding the ability of an accused to control or compensate for his or her frailties may be different as well.

 


The purposefulness of the conduct involved has also been isolated as a factor to be considered in applying such a test by Toni Pickard, in "Culpable Mistakes and Rape:  Relating Mens Rea to the Crime" (1980), 30 U.T.L.J. 75.  Pickard refers (at p. 76) to the accused's ability to isolate and analyze the "legally relevant transaction", and notes (at p. 81) that some activities "provide no specific moment, no specific act, not even a specific question to focus the actor's mind on the need for care".  Where the activity is highly purposeful, and involves a limited number of inquiries and decisions to be made before acting, the reasonable person with the accused's make-up will be held to a higher standard.  Put another way, frailties which create a general inability to recognize and appreciate risk will not necessarily exonerate the accused in the context of particular discrete acts.  If the activity is ongoing and involves many stimuli, it may well be impossible for the reasonable person with the accused's frailties to isolate the legally relevant items of information.

 

Consider the following example:

 

Y has had very little education.  Y's friend asks him to help clean out a basement.  It turns out that a jar in the basement contains nitroglycerine, and is clearly labelled as such.  Y reads the label, but the word means nothing to him.  Y transports the jar in the back of his pick-up truck, and when he leaves the truck after stopping at a store, the jar explodes and a passer by is killed.

 


In this circumstance, the reasonable person would have known not to transport the jar as Y did, so Y fails the first part of the test.  However, we should consider that Y's level of education may make comparing him to the fully educated reasonable person unfair.  Thus, the trier of fact should consider a reasonable person of Y's education level.  The inquiry for the trier of fact becomes:  would a reasonable person with Y's education have been aware of a risk and taken steps to avoid the harm?  There is nothing in the activity of cleaning out a basement that would alert Y to any particular risk inherent in the activity.  Similarly, there are a number of activities Y carries out, so it cannot be said that there was only one legally relevant transaction which should have focused Y's mind on the possibility of risk.  In this circumstance, then, the trier of fact may well find that it was reasonable for Y, given his education, not to be aware of the risk he created.

 

A slight change in facts illustrates the requirement that the frailty be one that the accused cannot control, and the need to attend to the context of the offence.  While cleaning out a basement would not put the reasonable person on notice, but the label (which meant nothing to Y) would, what if Y were a courier picking up a package from a large laboratory that, to Y's knowledge, manufactures only explosives?  The trier of fact could properly expect Y to have recognized his frailty as relevant to the transaction in question and to have asked someone at the lab about transportation safeguards.  The reasonable person, even with Y's education, would recognize the risks inherent in such a situation.  Thus, the overlap between the responsibility to recognize one's limitations and the focus on the inherent risk and purposefulness of the conduct indicates that Y might well be held to have been at fault in the circumstances, even though he did not in fact recognize a risk.

 


The capacity of the accused in the context of criminal prosecutions will be relevant wherever the Crown must establish what a reasonable person in the circumstances of the offence would have perceived.  In the case of unlawful act manslaughter, the objective test must be applied in assessing the foreseeability of the risk from the unlawful act in question, but may also be relevant in establishing the requisite fault for the predicate unlawful act, as is the case in R. v. Gosset, supra.  In Gosset, the accused was charged with unlawful act manslaughter, where the unlawful act was the careless use of a firearm contrary to s. 86(2) of the Criminal Code.  As I indicated in that case, capacity will be relevant to the assessment of the accused's fault for the predicate unlawful act as well as to the foreseeability of death arising from that unlawful act.

 

C.                The Application of the Objective Test

 

Applied to the facts of this case, therefore, one must ask whether the reasonable individual in the circumstances of the offence and with Mr. Creighton's experience in drug use would have been aware of the risk of death arising from the injection of the deceased with the cocaine.  In reviewing the evidence against Mr. Creighton, the trial judge stated the following:

 

The accused's evidence [is] that he would permit no one but himself to measure the dose of cocaine that he would accept by injection into his own body.  That is evidence capable of the inference which I draw, that Mr. Creighton on the 27th of October, 1989 was knowledgeable of the dangerous propensity of that narcotic to cause death or serious bodily harm.

 

Subsequently, the trial judge summarized his findings as follows:

 

Mr. Creighton swore, in effect, that he was and is an experienced cocaine user.  He said that he insisted on measuring out his own quantity of cocaine intake.  From that evidence alone, I draw the inference that at the time he gave part of that narcotic he had purchased to Miss Martin, he knew she was going to ingest it immediately.  He also knew that he was giving her a very dangerous, volatile, lawfully prohibited narcotic, capable of causing death or serious bodily harm. 

 


At the end of all of the evidence and argument, the Crown has proven beyond a reasonable doubt that the accused trafficked in cocaine.  The very narcotic he gave to the deceased caused her death, and his act of giving it was an intentional one.  It was an unlawful criminal act.  There existed on the record proof beyond a reasonable doubt that in the circumstances of giving it to her he was criminally negligent.  That is so because at the time he gave it he was an experienced, knowledgeable person and well aware of cocaine's dangerous properties.  Of equal significance, he, at the time that he gave it to her, knew that she was already holding within her body a substantial amount of the same narcotic.  Possessed of that knowledge, he was criminally negligent in giving it to her in the first place, and further criminally negligent in failing to consider the quantity, I find, he placed in the spoon that was used to inject her and the strength it probably would have upon her. [Emphasis added.]

 

Given the lethal nature of the narcotic in question and the fashion in which it was administered, the familiarity of the accused with the drug and its dangerous properties, the trial judge concluded that the accused foresaw the risk of death or serious bodily harm in injecting the deceased with cocaine.  Indeed, when first informed of the charges against him, the appellant was apprised of the death of Ms. Martin as a result of a cocaine overdose, to which he responded the following:

 

You know better than I that that stuff kills a lot of people.  I hear lots of things about people dying of drug overdoses but I don't know them so I don't care.

 

Since the accused was aware of the risk of death resulting from the unlawful act of trafficking, it is not necessary to proceed to the second or third branch of the objective test.

 


In instructing himself on the law with respect to unlawful act manslaughter, the trial judge, with respect, erred in adopting the standard of objective foreseeability contained in the earlier line of cases which referred to "the risk of some harm ... albeit not serious harm" (R. v. Church, supra, at p. 213, and R. v. Tennant, supra, at p. 96).  However, whether or not a reasonable person in the circumstances of the appellant would have foreseen a risk of death as opposed to merely a risk of harm arising from the unlawful act is an inquiry that is made unnecessary given the finding above that the appellant actually did appreciate the risk of death resulting from his injection of the cocaine into the deceased.

 

                   Therefore, with respect to the test for determining if a new trial is required under s. 686(1)(b)(iii) of the Code, I conclude that, although the learned trial judge erred in law in not expressly considering the capacity of the appellant to appreciate the risk resulting from his conduct, and in instructing himself on the proper test for assessing foreseeability under s. 222(5)(a) of the Code, it is clear from his findings that had he instructed himself properly, he would have necessarily arrived at the same verdict (see Colpitts v. The Queen, [1965] S.C.R. 739, at p. 744).  Therefore, I find that, despite the trial judge's error, there is no substantial wrong or miscarriage of justice which would require a new trial.

 

D.                Can the Conviction be Supported on the Alternative Basis of Criminal Negligence

 

In addition to convicting the appellant for unlawful act manslaughter under s. 222(5)(a) of the Code, the trial judge also convicted the appellant of manslaughter by criminal negligence under s. 222(5)(b), on the theory that the unlawful act in question itself constituted criminally negligent conduct.  The appellant also contends that s. 7 of the Charter requires that manslaughter by criminal negligence and unlawful act manslaughter be interpreted as having equivalent standards of fault.


In light of the finding that the conviction of the appellant under s. 222(5)(a) was proper and constitutional, it is unnecessary to deal with the appellant's submissions regarding the alternative ground for the conviction under s. 222(5)(b).  Although the appellant was charged with manslaughter without distinguishing between its two branches under s. 222(5)(a) and (b), manslaughter by criminal negligence was not a significant basis of the Crown's case against the appellant at trial.  Finally, as no constitutional question was stated with regard to s. 222(5)(b), none of the provincial Attorneys General has had an opportunity to intervene in the case to address the fault standard of this branch of manslaughter.  These factors lead me to conclude that this case is an inappropriate one for a detailed consideration of the offence of manslaughter by criminal negligence.

 

VI.              Disposition

 

I would answer the constitutional question as follows:

 

 

Question:     Does the common law definition of unlawful act manslaughter contravene s. 7 of the Canadian Charter of Rights and Freedoms?

 

Answer:       No.

 

For the reasons stated above, the appeal is dismissed, and the appellant's conviction confirmed.

 

The following are the reasons delivered by

 


La Forest J. -- I have had the advantage of reading the reasons of my colleagues, the Chief Justice and Justice McLachlin.  This case has caused me difficulty because both sets of reasons take a view of the law that I have in the past resisted.  I could decide this particular case, as did the Ontario Court of Appeal, on the basis that the accused had subjective foresight of the consequences of his act, but in view of the division of opinion in the Court and the fact that R. v. Gosset, [1993] 3 S.C.R. 000, and R. v. Naglik, [1993] 3 S.C.R. 000, issued concurrently, pose related problems, I find it necessary to express my views on the issues that divide my colleagues.

 

I start with the fact that, both at the constitutional level and in the interpretation of offences, I favour where practicable the adoption of subjective rather than objective mens rea; see, for example, my concurrence with Wilson J. in R. v. Tutton, [1989] 1 S.C.R. 1392, a case dealing with manslaughter by criminal negligence which my colleagues find it unnecessary to deal with in the present case.  Nonetheless, I have been sensitive to the broad divide between true criminal offences and offences that are regulatory or have a regulatory base (see R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154).  In consequence I accept that Parliament can and sometimes does require only an objective standard of mens rea for offences intended to regulate a particular form of activity; see R. v. Hundal, [1993] 1 S.C.R. 867, at p. 876, where I restricted my concurrence with Cory J. on that basis.

 


As can be seen from the reasons of McLachlin J. in the present case (at p. 000), the specific requirements of these regulatory and quasi-regulatory offences constitute the major theoretical justification for objective mens rea.  I was concerned about the application of the doctrine to offences of a truly criminal character that apply to a wide variety of circumstances.  However, any possibility of limiting objective mens rea to regulatory offences or offences having a regulatory base has now been overtaken by the unanimous decision of the panel (comprising a majority of the Court) in R. v. DeSousa, [1992] 2 S.C.R. 944.  It was there held that in a charge under s. 269 of the Criminal Code, R.S.C., 1985, c. C-46, of unlawfully causing bodily harm, it was sufficient to establish that the accused intended to cause the unlawful act (which was interpreted as being a dangerous act) that caused the bodily harm and that a reasonable person would have realized that that unlawful act would subject another person to the risk of bodily harm.  In short, the Court held that the underlying offence required personal fault, but that it was sufficient if there was objective foreseeability of consequences.  The case further held that the mens rea requirements conformed with the principles of fundamental justice within the meaning of s. 7 of the Canadian Charter of Rights and Freedoms.

 

In DeSousa, the Court relied on earlier authorities relating to unlawful act manslaughter, the relevant charge in the present case, and for my part I cannot distinguish between the mens rea requirement in the two offences.  That an unlawful act may result in death or simply bodily harm is purely fortuitous.  McLachlin J.'s reasoning on this point is persuasive.

 

On my reading of DeSousa, I would also have thought that it settled the second point of contention between my colleagues, i.e., whether objective mens rea as to consequence should be qualified in the manner proposed by the Chief Justice.  The rationale underlying the case would seem to me to favour the position taken by McLachlin J.  Since my colleagues have not so read the case, however, I shall attempt to give my reasons for preferring one position over the other.


While the theoretical differences may be profound, it must be confessed that, in the bulk of cases, there may be less difference in practical result between the adoption of a subjective or an objective approach to mens rea than the proponents of either view would admit.  Though Tutton itself was a case where the difference did matter, a careful reading of the competing reasons in that case, I think, demonstrates the truth of what I have just said.  To demonstrate, a jury deciding on whether a person adverted to an act or its consequences is bound to be affected by its view of what a reasonable person would do in the circumstances.  Similarly, the specific circumstances may well affect a jury's view of what is reasonable.  There are important educative and psychological differences between the two approaches that have led me to prefer the subjective view of mens rea.  That view underlines that no one will be punished for anything he or she did not intend or at least advert to, and its use supports one's feeling that a morally innocent person will not be punished.

 

The objective view, however qualified, does not fully serve these ends.  It is true that the qualified objective view would theoretically protect some of the individuals the subjective view would protect, but by no means all; see Tutton, supra, per Wilson J., at p. 1419.  And it does not respond to the educative and psychological ends sought to be attained by those advocating subjective mens rea.  Indeed, it introduces a differentiation between individuals in criminal proceedings that, however well meant, seems foreign to our law.  What is more, the qualified objective approach loses most of the practical advantages sought to be attained by the objective approach.  Indeed, some of the difficulties that have been perceived to result from the adoption of the subjective view would be exacerbated.  I think, in particular, of the difficulties of instructing a jury.  On this question, too, I find McLachlin J.'s reasons more persuasive.


I would, therefore, dispose of the appeal and answer the constitutional question as proposed by my colleagues.

 

The judgment of L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ. was delivered by

 

McLachlin J. -- This appeal considers the constitutional status of s. 222(5)(a) of the Criminal Code, R.S.C., 1985, c. C-46.  In particular, the constitutional question stated by the Chief Justice asks "Does the common law definition of unlawful act manslaughter contravene s. 7 of the Canadian Charter of Rights and Freedoms?".  The facts and judgments below have been set out by the Chief Justice.  In brief, Mr. Creighton was convicted of manslaughter, arising from the death of Kimberley Ann Martin, who died as a result of an injection of cocaine given by Mr. Creighton.  The trial judge found that the death constituted manslaughter either on the ground that it was caused by an unlawful act, or on the ground that it was caused by criminal negligence.

 


I respectfully disagree with the Chief Justice on two points.  The first is his conclusion that the common law offence of manslaughter is unconstitutional because it does not require foreseeability of death.  The Chief Justice concludes that the offence of manslaughter must be "read up" to include this requirement in order to bring it into line with the principles of fundamental justice enshrined in s. 7 of the Charter, and in particular with the principle that the moral fault required for conviction be commensurate with the gravity and the stigma of the offence.  In my view, the offence of unlawful act manslaughter, as defined by our courts and those in other jurisdictions for many centuries, is entirely consistent with the principles of fundamental justice.  There is no need to read up its requirements; as it stands, it conforms to the Charter.

 

The second point on which I respectfully diverge is the Chief Justice's conclusion that the standard of care on the objective test in manslaughter and in crimes of negligence varies with the degree of experience, education, and other personal characteristics of the accused.  This leads the Chief Justice to hold Mr. Creighton to a higher standard of care than that of the reasonable person in determining if he would have foreseen the risk in question, because of Creighton's long experience as a drug user (p. 000, reasons of Chief Justice).  For the reasons set out below I believe the appropriate standard to be that of the reasonable person in all the circumstances of the case.  The criminal law is concerned with setting minimum standards of conduct; the standards are not to be altered because the accused possesses more or less experience than the hypothetical average reasonable person.

 

I will turn first to the common law test for manslaughter, and address the constitutional question as stated by the Chief Justice.

 

A.                Constitutionality of the Requirement of Foreseeability of Bodily Injury in Manslaughter

 

1.                The Mens Rea of Manslaughter

 


The Criminal Code defines three general types of culpable homicide.  There is murder, the intentional killing of another human being.  There is infanticide, the intentional killing of a child.  All other culpable homicides fall into the residual category of manslaughter (s. 234, Criminal Code).

 

Manslaughter is a crime of venerable lineage.  It covers a wide variety of circumstances.  Two requirements are constant: (1) conduct causing the death of another person; and (2) fault short of intention to kill.  That fault may consist either in committing another unlawful act which causes the death, or in criminal negligence.   The common law classification of manslaughter is reflected in the definition of culpable homicide in s. 222(5) of the Criminal Code:

 

222. ...

 

(5)  A person commits culpable homicide when he causes the death of a human being.

 

(a)       by means of an unlawful act;

 

(b)       by means of criminal negligence;

 

The structure of the offence of manslaughter depends on a predicate offence of an unlawful act or criminal negligence, coupled with a homicide.  It is now settled that the fact that an offence depends upon a predicate offence does not render it unconstitutional, provided that the predicate offence involves a dangerous act, is not an offence of absolute liability, and is not unconstitutional:  R. v. DeSousa, [1992] 2 S.C.R. 944.  But a further objection is raised in this case.  It is said that the offence of manslaughter is unconstitutional because it requires only foreseeability of the risk of bodily harm and not foreseeability of death, and that the trial judge erred in requiring only foreseeability of bodily harm.

 


The cases establish that in addition to the actus reus and mens rea associated with the underlying act, all that is required to support a manslaughter conviction is reasonable foreseeability of the risk of bodily harm.  While s. 222(5)(a) does not expressly require foreseeable bodily harm, it has been so interpreted:  see R. v. DeSousa, supra.  The unlawful act must be objectively dangerous, that is likely to injure another person.  The law of unlawful act manslaughter has not, however, gone so far as to require foreseeability of death.  The same is true for manslaughter predicated on criminal negligence; while criminal negligence, infra, requires a marked departure from the standards of a reasonable person in all the circumstances, it does not require foreseeability of death.

 

Certain early authorities suggest that foreseeability of the risk of bodily harm is not required for manslaughter.  Blackstone wrote that "when an involuntary killing happens in consequence of an unlawful act . . .  if no more was intended than a mere trespass, it will only amount to manslaughter" (Blackstone, Commentaries on the Laws of England (1769), Book IV, at pp. 192-93).  Others disagreed.  Stephen, the author of the Canadian Criminal Code, defined manslaughter as "unlawful homicide", which in turn he defined as requiring, at a minimum, that the act was "likely to cause death or bodily harm" (Arts. 279, 278, reprinted in G. W. Burbidge, Digest of the Criminal Law of Canada (1980), at pp. 216, 215).

 


In more recent times, the prevailing view has been that foreseeability of bodily harm is required for manslaughter.  In England, it was said in R. v. Larkin, [1943] 1 All E.R. 217 (C.C.A.), at p. 219, that the act must be "a dangerous act, that is, an act which is likely to injure another person".  In R. v. Tennant (1975), 23 C.C.C. (2d) 80, at p. 96, the Ontario Court of Appeal stated that the unlawful act must be "such as any reasonable person would inevitably realize must subject another to the risk of, at least, some harm, albeit not serious harm". Similarly, in R. v. Adkins (1987), 39 C.C.C. (3d) 346 (B.C.C.A.), at p. 348, Hutcheon J.A. wrote, "the unlawful act was such as any reasonable person would inevitably realize must subject another to the risk of at least some harm".

 

This Court in R. v. DeSousa, supra, confirmed that a conviction for manslaughter requires that the risk of bodily harm have been foreseeable.  After referring to the statement in Larkin, supra, that a "dangerous act" is required, Sopinka J. stated that English authority has consistently held that the underlying unlawful act required for manslaughter requires "proof that the unlawful act was 'likely to injure another person' or in other words put the bodily integrity of others at risk" (p. 959). Moreover, the harm must be more than trivial or transitory.  The test set out by Sopinka J. (at p. 961) for the unlawful act required by s. 269 of the Criminal Code is equally applicable to manslaughter:

 

. . . the test is one of objective foresight of bodily harm for all underlying offences.  The act must be both unlawful, as described above, and one that is likely to subject another person to danger of harm or injury.  This bodily harm must be more than merely trivial or transitory in nature and will in most cases involve an act of violence done deliberately to another person.  In interpreting what constitutes an objectively dangerous act, the courts should strive to avoid attaching penal sanctions to mere inadvertence.  The contention that no dangerousness requirement is required if the unlawful act is criminal should be rejected. [Emphasis in original.]

 


So the test for the mens rea of unlawful act manslaughter in Canada, as in the United Kingdom, is (in addition to the mens rea of the underlying offence) objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act.  Foreseeability of the risk of death is not required.  The question is whether this test violates the principles of fundamental justice under s. 7 of the Charter.

 

2.                Constitutionality of the "Foresight of Bodily Harm" Test for Manslaughter

 

Before venturing on analysis, I think it appropriate to introduce a note of caution.  We are here concerned with a common law offence virtually as old as our system of criminal law.  It has been applied in innumerable cases around the world.  And it has been honed and refined over the centuries.  Because of its residual nature, it may lack the logical symmetry of more modern statutory offences, but it has stood the practical test of time.  Could all this be the case, one asks, if the law violates our fundamental notions of justice, themselves grounded in the history of the common law?  Perhaps.  Nevertheless, it must be with considerable caution that a twentieth century court approaches the invitation which has been put before us: to strike out, or alternatively, rewrite, the offence of manslaughter on the ground that this is necessary to bring the law into conformity with the principles of fundamental justice.

 

As I read the reasons of the Chief Justice, his conclusion that the offence of manslaughter as it stands is unconstitutional rests on two main concerns.  First, it is his view that the gravity or seriousness of the offence of manslaughter, and in particular the stigma that attaches to it, requires a minimum mens rea of foreseeability of death.  Second, considerations of symmetry between the element of mental fault and the consequences of the offence mandate this conclusion.  I will deal with each concern in turn.

 

(a)   Gravity of the Offence


A number of concepts fall under this head.  Three of them figure among the four factors relevant to determining the constitutionality of a mens rea requirement, as set out by this Court in R. v. Martineau, [1990] 2 S.C.R. 633:

 

1.  The stigma attached to the offence, and the available penalties requiring a mens rea reflecting the particular nature of the crime;

 

2.  Whether the punishment is proportionate to the moral blameworthiness of the offender; and

 

3.  The idea that those causing harm intentionally must be punished more severely than those causing harm unintentionally.

 

The Chief Justice in his reasons places considerable emphasis on the first factor of stigma. He argues that "there may well be no difference between the actus reus of manslaughter and that of murder; arguably both give rise to the stigma of being labelled by the state and the community as responsible for the wrongful death of another" (p. 000).  But later in his reasons (at p. 000) he concedes that  "the stigma which attaches to a conviction for unlawful act manslaughter", while "significant... does not approach the opprobrium reserved in our society for those who knowingly or intentionally take the life of another" (emphasis is original).  The Chief Justice goes on to observe that "[i]t is for this reason that manslaughter developed as a separate offence from murder at common law."  Nevertheless, in the end the Chief Justice concludes that the "constitutional imperative", taken with other factors, requires a minimum mens rea of foreseeability of the risk of death, suggesting that stigma may remain an important factor in his reasoning.


To the extent that stigma is relied on as requiring foreseeability of the risk of death in the offence of manslaughter, I find it unconvincing.  The most important feature of the stigma of manslaughter is the stigma which is not attached to it.  The  Criminal Code confines manslaughter to non-intentional homicide.  A person convicted of manslaughter is not a murderer.  He or she did not intend to kill someone.  A person has been killed through the fault of another, and that is always serious.  But by the very act of calling the killing manslaughter the law indicates that the killing is less blameworthy than murder.  It may arise from negligence,  or it may arise as the unintended result of a lesser unlawful act.  The conduct is blameworthy and must be punished, but its stigma does not approach that of murder.

 

To put it another way, the stigma attached to manslaughter is an appropriate stigma.  Manslaughter is not like constructive murder, where one could say that a person who did not in fact commit murder might be inappropriately branded with the stigma of murder.  The stigma associated with manslaughter is arguably exactly what it should be for an unintentional killing in circumstances where risk of bodily harm was foreseeable.  There is much common sense in the following observation:

 

The offender has killed, and it does not seem wrong in principle that, when he is far from blameless, he should be convicted of an offence of homicide.  To some extent it must be an intuitive conclusion, but it does not seem too difficult to argue that those who kill, and who are going to be convicted of something, should be convicted of homicide.  That, after all, is what they have done.

 

(Adrian Briggs, "In Defence of Manslaughter", [1983] Crim. L.R. 764, at p. 765). 

 


It would shock the public's conscience to think that a person could be convicted of manslaughter absent any moral fault based on foreseeability of harm.  Conversely, it might well shock the public's conscience to convict a person who has killed another only of aggravated assault  -- the result of requiring foreseeability of death -- on the sole basis that the risk of death was not reasonably foreseeable.  The terrible consequence of death demands more.  In short, the mens rea requirement which the common law has adopted -- foreseeability of harm -- is entirely appropriate to the stigma associated with the offence of manslaughter.  To change the mens rea requirement would be to risk the very disparity between mens rea and stigma of which the appellant complains.

 

I come then to the second factor mentioned in Martineau, the relationship between the punishment for the offence and the mens rea requirement.  Here again, the offence of manslaughter stands in sharp contrast to the offence of murder.  Murder entails a mandatory life sentence; manslaughter carries with it no minimum sentence.  This is appropriate.  Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible.   An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder.  The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender.  This Court acknowledged this in Martineau, at p. 647:

 

The more flexible sentencing scheme under a conviction for manslaughter is in accord with the principle that punishment be meted out with regard to the level of moral blameworthiness of the offender. 

 

 


It follows that the sentence attached to manslaughter does not require elevation of the degree of mens rea for the offence.

 

This brings me to the third factor relating to the gravity of the offence set out in Martineau,  the principle that those causing harm intentionally must be punished more severely than those causing harm unintentionally.  As noted, this principle is strictly observed in the case of manslaughter.  It is by definition an unintentional crime.  Accordingly, the penalties imposed are typically less than for its intentional counterpart, murder.

 

I conclude that the standard of mens rea required for manslaughter is appropriately tailored to the seriousness of the offence. 

 

(b)   Symmetry Between the Element of Fault and the Consequences of the Offence

 

The Chief Justice correctly observes that the criminal law has traditionally aimed at  symmetry between the mens rea and the prohibited consequences of the offence.  The actus reus generally consists of an act bringing about a prohibited consequence, e.g. death.  Criminal law theory suggests that the accompanying mens rea must go to the prohibited consequence.  The moral fault of the accused lies in the act of bringing about that consequence.  The Chief Justice reasons from this proposition that since manslaughter is an offence involving the prohibited act of killing another, a mens rea of foreseeability of harm is insufficient; what is required is foreseeability of death.

 


The conclusion that the offence of manslaughter is unconstitutional because it does not require appreciation of the consequential risk of death rests on two propositions: (1) that risk of bodily harm is appreciably different from risk of death in the context of manslaughter; and (2) that the principle of absolute symmetry between mens rea and each consequence of a criminal offence is not only a general rule of criminal law, but a principle of fundamental justice which sets a constitutional minimum.  In my view, neither of these propositions is free from doubt.

 

I turn first to the distinction between appreciation of the risk of bodily harm and the risk of death in the context of manslaughter.  In my view, when the risk of bodily harm is combined with the established rule that a wrongdoer must take his victim as he finds him and the fact that death did in fact occur, the distinction disappears.  The accused who asserts that the risk of death was not foreseeable is in effect asserting that a normal person would not have died in these circumstances, and that he could not foresee the peculiar vulnerability of the victim.  Therefore, he says, he should be convicted only of assault causing bodily harm or some lesser offence.  This is to abrogate the thin-skull rule that requires that the wrong-doer take his victim as he finds him.  Conversely, to combine the test of reasonable foreseeability of bodily harm with the thin-skull rule is to mandate that in some cases, foreseeability of the risk of bodily harm alone will properly result in a conviction for manslaughter.

 


What the appellant asks us to do, then, is to abandon the "thin-skull" rule.  It is this rule which, on analysis, is alleged to be unjust.  Such a conclusion I cannot accept.  The law has consistently set its face against such a policy. It decrees that the aggressor must take his victim as he finds him.  Lord Ellenborough C.J. discussed the principle nearly two centuries ago:

 

He who deals in a perilous article must be wary how he deals, otherwise, if he observe not proper caution, he will be responsible... [I]t [is] an universal principle, that when a man is charged with doing an act, of which the probable consequence may be highly injurious, the intention is an inference of law resulting from the doing the act....

 

(R. v. Dixon (1814), 3 M. & S. 11, 105 E.R. 516, at p. 517; approved, per Blackburn J., R. v. Hicklin (1868), L.R. 3 Q.B. 360, at p. 375, and per Amphlett J.A., R. v. Aspinall (1876), 2 Q.B.D. 48, at p. 65).

 

Stephen J. illustrated the principle in similar fashion in R. v. Serné (1887), 16 Cox 311, at p. 313:

 

. . . when a person began doing wicked acts for his own base purposes, he risked his own life as well as that of others.  That kind of crime does not differ in any serious degree from one committed by using a deadly weapon, such as a bludgeon, a pistol, or a knife.  If a man once begins attacking the human body in such a way, he must take the consequences if he goes further than he intended when he began.

 


The principle that if one engages in criminal behaviour, one is responsible for any unforeseen actions stemming from the unlawful act, has been a well-established tenet for most of this century in Canada, the U.S. and the U.K.:  G. A. Martin, "Case Comment on R. v. Larkin" (1943), 21 Can. Bar Rev. 503, at pp. 504-5; Smithers v. The Queen, [1978] 1 S.C.R. 506; R. v. Cole (1981), 64 C.C.C. (2d) 119, at p. 127 (Ont. C.A.) (Lacourcière J.A.); R. v. Tennant, supra, at pp. 96-97;  R. v. Lelievre, [1962] O.R. 522, at p. 529 (C.A.) (Laidlaw J.A.);  R. v. Adkins, supra, at pp. 349-56; R. v. Cato (1975), 62 Cr. App. R. 41 (C.A.); Director of Public Prosecutions v. Newbury (1976), 62 Cr. App. R. 291 (H.L.);  see also R. v. Fraser (1984), 16 C.C.C. (3d) 250, at pp. 256-57 (N.S.C.A.) (Jones J.A.); W. R. LaFave and A. W. Scott, Substantive Criminal Law, vol. 2 (1986), at pp. 286-99.  For the American position, see United States v. Robertson, 19 C.M.R. 102 (1955) (C.M.A.);  Tucker v. Commonwealth, 303 Ky. 864 (1947); Nelson v. State, 58 Ga. App. 243 (1938); Rutledge v. State, 41 Ariz. 48 (1932).

 

In Smithers v. The Queen, supra, at pp. 521-22, Dickson J., writing for a unanimous Court, confirmed this principle:

 

It is a well-recognized principle that one who assaults another must take his victim as he finds him....

 

Although causation in civil cases differs from that in a criminal case, the "thin skulled man" may appear in the criminal law as in the civil law....  Even if the unlawful act, alone, would not have caused the death, it was still a legal cause so long as it contributed in some way to the death.

 

The thin-skull rule is a good and useful principle.  It requires aggressors, once embarked on their dangerous course of conduct which may foreseeably injure others, to take responsibility for all the consequences that ensue, even to death.  That is not, in my view, contrary to fundamental justice.  Yet the consequence of adopting the amendment proposed by the Chief Justice would be to abrogate this principle in cases of manslaughter.

 


In fact, when manslaughter is viewed in the context of the thin-skull principle, the disparity diminishes between the mens rea of the offence and its consequence.  The law does not posit the average victim.  It says the aggressor must take the victim as he finds him.  Wherever there is a risk of harm, there is also a practical risk that some victims may die as a result of the harm.  At this point, the test of harm and death merge.

 

The second assumption inherent in the argument based on symmetry between mens rea and each consequence of the offence is that this is not only a general rule of criminal law, but a principle of fundamental justice -- a basic constitutional requirement.  I agree that as a general rule the mens rea of an offence relates to the consequences prohibited by the offence.  As I stated in R. v. Théroux, [1993] 2 S.C.R. 5, at p. 17, "[t]ypically, mens rea is concerned with the consequences of the prohibited actus reus."  Yet our criminal law contains important exceptions to this ideal of perfect symmetry.  The presence of these exceptions suggests that the rule of symmetry is just that -- a rule -- to which there are exceptions.  If this is so, then the rule cannot be elevated to the status of a principle of fundamental justice which must, by definition, have universal application.

 

It is important to distinguish between criminal law theory, which seeks the ideal of absolute symmetry between actus reus and mens rea, and the constitutional requirements of the Charter.  As the Chief Justice has stated several times, "the Constitution does not always guarantee the `ideal'" (R. v. Lippé, [1991] 2 S.C.R. 114, at p. 142; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, at p. 186; R. v. Finlay, [1993] 3 S.C.R. 000, released concurrently, at p. 000).

 


I know of no authority for the proposition that the mens rea of an offence must always attach to the precise consequence which is prohibited as a matter of constitutional necessity.  The relevant constitutional principles have been cast more broadly.  No person can be sent to prison without mens rea, or a guilty mind, and the seriousness of the offence must not be disproportionate to the degree of moral fault.  Provided an element of mental fault or moral culpability is present, and provided that it is proportionate to the seriousness and consequences of the offence charged, the principles of fundamental justice are satisfied. 

 

The principles of fundamental justice, viewed thus, empower Parliament to recognize that, notwithstanding the same level of moral fault, some offences may be more or less serious, depending on the consequences of the culpable act.  As Macdonald J.A. put it in R. v. Brooks (1988), 41 C.C.C. (3d) 157 (B.C.C.A.), at p. 161 :

 

Our criminal law has always recognized that the consequences of an unlawful act may affect the degree of culpability.  The most noteworthy examples are attempts.  They are always regarded less seriously than commission of the full offence.  But the moral blameworthiness is identical.

 

Thus it cannot be said that the law in all circumstances insists on absolute symmetry between the mens rea and the consequences of the offence.  Sometimes it does not insist on the consequences at all, as in crimes of attempts.  Sometimes, as in unlawful act manslaughter, it elevates the crime by reason of its serious consequences while leaving the mental element the same.

 


Just as it would offend fundamental justice to punish a person who did not intend to kill for murder, so it would equally offend common notions of justice to acquit a person who has killed another of manslaughter and find him guilty instead of aggravated assault on the ground that death, as opposed to harm, was not foreseeable.  Consequences can be important.  As Sopinka J. put it in R. v. DeSousa (at pp. 966-67):

 

No principle of fundamental justice prevents Parliament from treating crimes with certain consequences as more serious than crimes which lack those consequences. 

 

                                                                    ...

 

Conduct may fortuitously result in more or less serious consequences depending on the circumstances in which the consequences arise.  The same act of assault may injure one person but not another.  The implicit rationale of the law in this area is that it is acceptable to distinguish between criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused.  This is reflected in the creation of higher maximum penalties for offences with more serious consequences.  Courts and legislators acknowledge the harm actually caused by concluding that in otherwise equal cases a more serious consequence will dictate a more serious response.

 

Thus when considering the constitutionality of the requirement of foreseeability of bodily harm, the question is not whether the general rule of symmetry between mens rea and the consequences prohibited by the offence is met, but rather whether the fundamental principle of justice is satisfied that the gravity and blameworthiness of an offence must be commensurate with the moral fault engaged by that offence.  Fundamental justice does not require absolute symmetry between moral fault and the prohibited consequences.  Consequences, or the absence of consequences, can properly affect the seriousness with which Parliament treats specified conduct.

 

3.                Policy Considerations

 


I have suggested that jurisprudential and historic considerations confirm a test for the mens rea of manslaughter based on foreseeability of the risk of bodily injury, rather than death.  I have also argued that the considerations of the gravity of the offence and symmetry between the mens rea of the offence and its consequences do not entail the conclusion that the offence of manslaughter as it has been historically defined in terms of foreseeability of the risk of bodily harm is unconstitutional. It is my view that policy considerations support the same conclusion.  In looking at whether a long-standing offence violates the principles of fundamental justice it is not amiss, in my view, to look at such considerations.

 

First, the need to deter dangerous conduct which may injure others and in fact may kill the peculiarly vulnerable supports the view that death need not be objectively foreseeable, only bodily injury.  To tell people that if they embark on dangerous conduct which foreseeably may cause bodily harm which is neither trivial or transient, and which in fact results in death, they will not be held responsible for the death but only for aggravated assault, is less likely to deter such conduct than a message that they will be held responsible for the death, albeit under manslaughter not murder.  Given the finality of death and the absolute unacceptability of killing another human being, it is not amiss to preserve the test which promises the greatest measure of deterrence, provided the penal consequences of the offence are not disproportionate.  This is achieved by retaining the test of foreseeability of bodily harm in the offence of manslaughter.

 


Second, retention of the test based on foreseeability of bodily harm accords best with our sense of justice.  I have earlier alluded to the view, attested to by the history of the offence of manslaughter, that causing the death of another through negligence or a dangerous unlawful act should be met by a special sanction reflecting the fact that a death occurred, even though death was not objectively foreseeable.  This is supported by the sentiment that a person who engages in dangerous conduct that breaches the bodily integrity of another and puts that person at risk may properly be held responsible for an unforeseen death attributable to that person's peculiar vulnerability; the aggressor takes the victim as he finds him.  The criminal law must reflect not only the concerns of the accused, but the concerns of the victim and, where the victim is killed, the concerns of society for the victim's fate.  Both go into the equation of justice.

 

Finally, the traditional test founded on foreseeability of the risk of bodily harm provides, in my belief, a workable test which avoids troubling judges and juries about the fine distinction between foreseeability of the risk of bodily injury and foreseeability of the risk of death -- a distinction which, as argued earlier, reduces to a formalistic technicality when put in the context of the thin-skull rule and the fact that death has in fact been inflicted by the accused's dangerous act.  The traditional common law test permits a principled approach to the offence which meets the concerns of society, provides fairness to the accused, and facilitates a just and workable trial process.

 

4.                Summary on the Constitutionality of the Test of Foresight of Bodily Harm for Manslaughter

 


The foregoing considerations lead me to conclude that the fact that the mens rea of manslaughter requires foreseeable risk of harm rather than foreseeable risk of death does not violate the principles of fundamental justice.  In the final analysis, the moral fault required for manslaughter is commensurate with the gravity of the offence and the penalties which it entails, and offends no principle of fundamental justice.  The next issue is the nature of the objective test establishing foresight of bodily harm, to which I now turn.

 

B.                The Nature of the Objective Test

 

I respectfully differ from the Chief Justice on the nature of the objective test used to determine the mens rea for crimes of negligence.  In my view, the approach advocated by the Chief Justice personalizes the objective test to the point where it devolves into a subjective test, thus eroding the minimum standard of care which Parliament has laid down by the enactment of offences of manslaughter and penal negligence. 

 

By way of background, it may be useful to restate what I understand the jurisprudence to date to have established regarding crimes of negligence and the objective test.  The mens rea of a criminal offence may be either subjective or objective, subject to the principle of fundamental justice that the moral fault of the offence must be proportionate to its gravity and penalty.   Subjective mens rea requires that the accused have intended the consequences of his or her acts, or that knowing of the probable consequences of those acts, the accused have proceeded recklessly in the face of the risk.  The requisite intent or knowledge may be inferred directly from what the accused said or says about his or her mental state, or indirectly from the act and its circumstances.  Even in the latter case, however, it is concerned with "what was actually going on in the mind of this particular accused at the time in question": L'Heureux-Dubé J. in  R. v. Martineau, supra, at p. 655, quoting Stuart, Canadian Criminal Law (2nd ed. 1987), at p. 121.

 


Objective mens rea, on the other hand, is not concerned with what the accused intended or knew.   Rather, the mental fault lies in failure to direct the mind to a risk which the reasonable person would have appreciated.  Objective mens rea is not concerned with what was actually in the accused's mind, but with what should have been there, had the accused proceeded reasonably. 

 

It is now established that a person may be held criminally responsible for negligent conduct on the objective test, and that this alone does not violate the principle of fundamental justice that the moral fault of the accused must be commensurate with the gravity of the offence and its penalty: R. v. Hundal, [1993] 1 S.C.R. 867.

 

However, as stated in Martineau, it is appropriate that those who cause harm intentionally should be punished more severely than those who cause harm inadvertently.  Moreover, the constitutionality of crimes of negligence is also subject to the caveat that acts of ordinary negligence may not suffice to justify imprisonment:  R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; R. v. Sansregret, [1985] 1 S.C.R. 570.  To put it in the terms used in Hundal, the negligence must constitute a "marked departure" from the standard of the reasonable person.  The law does not lightly brand a person as a criminal.  For this reason, I am in agreement with the Chief Justice in R. v. Finlay, supra, that the word "careless" in an underlying firearms offence must be read as requiring a marked departure from the constitutional norm.

 


It follows from this requirement, affirmed in Hundal, that in an offence based on unlawful conduct, a predicate offence involving carelessness or negligence must also be read as requiring a "marked departure" from the standard of the reasonable person.  As pointed out in DeSousa, the underlying offence must be constitutionally sound. 

 

To this point, the Chief Justice and I are not, as I perceive it, in disagreement.  The difference between our approaches turns on the extent to which personal characteristics of the accused may affect liability under the objective test.  Here we enter territory in large part uncharted.   To date, debate has focused on whether an objective test for mens rea is ever available in the criminal law; little has been said about how, assuming it is applicable, it is to be applied.  In R. v. Hundal, supra, it was said that the mens rea of dangerous driving should be assessed objectively in the context of all the events surrounding the incident.  But the extent to which those circumstances include personal mental or psychological frailties of the accused was not explored in depth.  In these circumstances, we must begin with the fundamental principles of criminal law.

 

Underlying Principles

 

The debate about the degree to which personal characteristics should be reflected in the objective test for fault in offences of penal negligence engages two fundamental concepts of criminal law. 

 


The first concept is the notion that the criminal law may properly hold people who engage in risky activities to a minimum standard of care, judged by what a reasonable person in all the circumstances would have done.  This notion posits a uniform standard for all persons engaging in the activity, regardless of their background, education or psychological disposition.

 

The second concept is the principle that the morally innocent not be punished (Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 513; R. v. Gosset, [1993] 3 S.C.R. 000, reasons of Lamer C.J. at p. 000).  This principle is the foundation of the requirement of criminal law that the accused must have a guilty mind, or mens rea

 

I agree with the Chief Justice that the rule that the morally innocent not be punished in the context of the objective test requires that the law refrain from holding a person criminally responsible if he or she is not capable of appreciating the risk.  Where I differ from the Chief Justice is in his designation of the sort of educational, experiential and so-called "habitual" factors personal to the accused which can be taken into account.   The Chief Justice, while in principle advocating a uniform standard of care for all, in the result seems to contemplate a standard of care which varies with the background and predisposition of each accused.  Thus an inexperienced, uneducated, young person, like the accused in R. v. Naglik, [1993] 3 S.C.R. 122*, could be acquitted, even though she does not meet the standard of the reasonable person (reasons of the Lamer C.J., at p. 000).  On the other hand, a person with special experience, like Mr. Creighton in this case, or the appellant police officer in R. v. Gosset, supra, will be held to a higher standard than the ordinary reasonable person.

 


I must respectfully dissent from this extension of the objective test for criminal fault.  In my view, considerations of principle and policy dictate the maintenance of a single, uniform legal standard of care for such offences, subject to one exception:  incapacity to appreciate the nature of the risk which the activity in question entails.     

 

  This principle that the criminal law will not convict the morally innocent does not, in my view, require consideration of personal factors short of incapacity.  The criminal law, while requiring mental fault as an element of a conviction, has steadfastly rejected the idea that a person's personal characteristics can (short of incapacity) excuse the person from meeting the standard of conduct imposed by the law.

 

Wilson J. made this point in Perka v. The Queen, [1984] 2 S.C.R. 232.  In response to the argument posited by Professor George P. Fletcher ("The Individualization of Excusing Conditions" (1974),  47 S. Cal. L. Rev. 1269) that some accused should be acquitted on the basis that "I couldn't help myself", she wrote at pp. 270-71:

 


The underlying principle here is the universality of rights, that all individuals whose actions are subjected to legal evaluation must be considered equal in standing.  Indeed, it may be said that this concept of equal assessment of every actor, regardless of his particular motives or the particular pressures operating upon his will, is so fundamental to the criminal law as rarely to receive explicit articulation.  However, the entire premise expressed by such thinkers as Kant and Hegel that man is by nature a rational being, and that this rationality finds expression both in the human capacity to overcome the impulses of one's own will and in the universal right to be free from the imposition of the impulses and will of others (see Hegel, Philosophy of Right (trans. Knox, 1952), at pp. 26-27) supports the view that an individualized assessment of offensive conduct is simply not possible.  If the obligation to refrain from criminal behaviour is perceived as a reflection of the fundamental duty to be rationally cognizant of the equal freedom of all individuals, then the focus of an analysis of culpability must be on the act itself (including its physical and mental elements) and not on the actor.  The universality of such obligations precludes the relevance of what Fletcher refers to as "an individualized excusing condition". [Emphasis in original.]

 

The Chief Justice relies on Professor H. L. A. Hart in support of importing what Wilson J. calls "individualized excusing conditions" into the objective test for offences of manslaughter and penal negligence.  In fact, Professor Hart sees the principle of preventing the punishment of the morally innocent as dictating only that people should not be punished when they lacked the capacity to appreciate the consequences of their conduct. He reasons that no one should be held blameworthy and punished for criminal conduct if he or she acted without free will (Punishment and Responsibility (1968), at pp. 35-40).  He states that "the need to inquire into the `inner facts' is dictated ... by the moral principle that no one should be punished who could not help doing what he did" (p. 39) (emphasis added).

 

In summary, I can find no support in criminal theory for the conclusion that protection of the morally innocent requires a general consideration of individual excusing conditions.  The principle comes into play only at the point where the person is shown to lack the capacity to appreciate the nature and quality or the consequences of his or her acts.  Apart from this, we are all, rich and poor, wise and naive, held to the minimum standards of conduct prescribed by the criminal law.  This conclusion is dictated by a fundamental proposition of social organization.  As Justice Oliver Wendell Holmes wrote in The Common Law (1881), at p. 108:  "when men live in society, a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare."

 


The ambit of the principle that the morally innocent shall not be convicted has developed in large part in the context of crimes of subjective fault ‑- crimes where the accused must be shown to have actually intended or foreseen the consequences of his or her conduct.  In crimes of this type, personal characteristics of the accused have been held to be relevant only to the extent that they tend to prove or disprove an element of the offence.  Since intention or knowledge of the risk is an element of such offences, personal factors can come into play.  But beyond this, personal characteristics going to lack of capacity are considered under the introductory sections of the Code defining the conditions of criminal responsibility and have generally been regarded as irrelevant.

 

What then is the situation for crimes of inadvertence?  Here actual intention or knowledge is not a factor; hence personal characteristics are not admissible on that ground. Nor, in my view, can a case be made for considering them on any other basis, except in so far as they may show that the accused lacked the capacity to appreciate the risk.  This appears to be the settled policy of the law, applied for centuries to offences involving manslaughter or penal negligence based on objectively assessed fault.  Here, as in crimes of subjective intent, the courts have rejected the contention that the standard prescribed by the law should take into account the individual peculiarities of the accused, short of incapacity.  Thus Dickson C.J. wrote in R. v. Hill, [1986] 1 S.C.R. 313, at pp. 324-25:

 

In considering the precise meaning and application of the ordinary person standard or objective test, it is important to identify its underlying rationale.  Lord Simon of Glaisdale has perhaps stated it most succinctly when he suggested in Camplin, at p. 726, that "the reason for importing into this branch of the law the concept of the reasonable man [was] ... to avoid the injustice of a man being entitled to rely on his exceptional excitability or pugnacity or ill-temper or on his drunkenness".

 


It is society's concern that reasonable and non-violent behaviour be encouraged that prompts the law to endorse the objective standard.  The criminal law is concerned among other things with fixing standards for human behaviour.  We seek to encourage conduct that complies with certain societal standards of reasonableness and responsibility.  In doing this, the law quite logically employs the objective standard of the reasonable person.

 

Wilson J., writing in the same case at p. 352, added:

 

The underlying principles of equality and individual responsibility cannot be undermined by importing the accused's subjective level of self-control into the "ordinary person" test ...  

 

To the principle of a uniform minimum standard for crimes having an objective test there is but one exception -- incapacity to appreciate the risk. Justice Holmes, speaking of the failure to take reasonable care, put it this way (supra, at p. 109):

 

There are exceptions to the principle that every man is presumed to possess ordinary capacity to avoid harm to his neighbors, which illustrate the rule, and also the moral basis of liability in general.  When a man has a distinct defect of such a nature that all can recognize it as making certain precautions impossible, he will not be held answerable for not taking them.  [Emphasis added.]

 


Consistent with these principles, this Court has rejected experiential, educational and psychological defences falling short of incapacity.  Thus it has excluded personal characteristics short of incapacity in considering the characteristics of the "ordinary person" for the defence of provocation for the offence of murder:  Salamon v. The Queen, [1959] S.C.R. 404; R. v. Hill, supra, at pp. 335-36.  One commentator sums up the non-exculpatory characteristics as follows:  "Thus, the temperament, peculiar psychological make-up, unusual excitability or pugnaciousness of an accused person cannot be taken into account by the jury for the purpose of determining the level of self-control the accused should have shown.  The ordinary person is none of these things" (M. Naeem Rauf, "The Reasonable Man Test in the Defence of Provocation:  What are the Reasonable Man's Attributes and Should the Test be Abolished" (1987),  30 Crim. L. Q. 73, at p. 79).

 

To summarize, the fundamental premises upon which our criminal law rests mandate that personal characteristics not directly relevant to an element of the offence serve as excuses only at the point where they establish incapacity, whether the incapacity be the ability to appreciate the nature and quality of one's conduct in the context of intentional crimes, or the incapacity to appreciate the risk involved in one's conduct in the context of crimes of manslaughter or penal negligence.  The principle that we eschew conviction of the morally innocent requires no more.

 

This test I believe to flow from the fundamental premises of our system of criminal justice.  But drawing the line of criminal responsibility for negligent conduct at incapacity is also socially justifiable.  In a society which licenses people, expressly or impliedly, to engage in a wide range of dangerous activities posing risk to the safety of other, it is reasonable to require that those choosing to undertake such activities and possessing the basic capacity to understand their danger take the trouble to exercise that capacity (see R. v. Hundal, supra).  Not only does the absence of such care connote moral fault, but the sanction of the criminal law is justifiably invoked to deter others who choose to undertake such activities from proceeding without the requisite caution.  Even those who lack the advantages of age, experience and education may properly be held to this standard as a condition of choosing to engage in activities which may maim or kill other innocent people.


The criminal law, as noted, is concerned with setting minimum standards of behaviour in defined circumstances.  If this goal is to be achieved, the minimum cannot be lowered because of the frailties or inexperience of the accused, short of incapacity. The words of the Ontario Court of Appeal in McErlean v. Sarel (1987), 61 O.R. (2d) 396, a civil case, at p. 413, are equally apposite to the criminal context. The question was whether a teenager riding a bike should be held to the standard of care of a reasonable adult. The Court (Howland C.J.O, Houlden, Morden, Robins and Tarnopolsky JJ.A.) stated:  "it would be unfair and, indeed, dangerous to the public to permit [teenagers] in the operation of these power-driven vehicles to observe any lesser standard than that required of all other drivers of such vehicles.  The circumstances of contemporary life require a single standard of care with respect to such activities."  (See also Dellwo v. Pearson, 107 N.W.2d 859 (Minn. 1961); Binchy, "The Adult Activities Doctrine in Negligence Law" (1985), 11 Wm. Mitchell L. Rev. 733.)

 

But the social justification for a uniform standard of care stops at the point of incapacity.  Convicting and punishing a person who lacks the capacity to do what the law says he or she should have done serves no useful purpose.  As Wilson J. explains in Perka v. The Queen, supra, at p. 273, the criminal law makes distinctions in situations where "punishment cannot on any grounds be justified". Such situations mandate an acquittal, according to Wilson J., "because no purpose inherent to criminal liability and punishment -- i.e. the setting right of a wrongful act -- can be accomplished for an act which no rational person would avoid" (p. 273).  For these reasons the criminal law does not assign liability where the accused's culpable behaviour is caused by extrinsic factors beyond his or her control.

 


These considerations suggest that the practical as well as the theoretical concerns of the criminal law in the field of penal negligence are best served by insisting on a uniform standard of conduct for everyone, subject to cases where the accused was not capable of recognizing and avoiding the risk attendant on the activity in question.  Beyond this, the standard should not be individualized by reason of the peculiar personal characteristics of the accused. The purpose of Parliament in creating an offence of objective foresight, as in manslaughter, is to stipulate a minimum standard which people engaged in the activity in question are expected to meet.  If the standard is lowered by reason of the lack of experience, education, or the presence of some other "personal characteristic" of the accused, the minimum standard which the law imposes on those engaging in the activity in question will be eroded.  The objective test inevitably is transformed into a subjective test, violating the wise admonition in R. v. Hundal, supra, that there should be a clear distinction in the law between subjective and objective standards, and negating the legislative goal of a minimum standard of care for all those who choose to engage in criminally dangerous conduct (per Cory J. at p. 883; per McLachlin J. at p. 873).

 


I digress at this point to consider in more detail the concept of incapacity to appreciate the risk attendant on one's conduct.  It may be that this is the real point of divergence between the Chief Justice's views and those which I have attempted to articulate.  The Chief Justice moves from the proposition that incapacity to appreciate the risk of the activity in question should serve as a defence, which I accept, to the conclusion that the standard of care applicable in a particular case should be moved up or down, according to the educational, experiential and  other `habitual' characteristics of the accused.  Some of the language employed suggests that all the accused's personal characteristics -- not only those related to incapacity to assess the risk --  should be considered in determining whether he or she is guilty.  The Chief Justice refers, for example to the test of "a reasonable person who possesses all of the accused's limitations" (p. 000), and to "the reasonable person with the accused's make-up" (p. 000).  These conclusions and statements, it seems to me, go far beyond incapacity to appreciate the risk entailed by particular conduct, to suggest a broader, actor-oriented approach to criminal liability which this Court has repeatedly disavowed.

 

As I see it, the recognition that those lacking the capacity to perceive the risk should be exempted from criminal conviction and punishment does not entail the conclusion that the standard of care must be adjusted to take into account the accused's experience and education.   The only actor-oriented question apposite to mens rea in these cases is whether the accused was capable of appreciating the risk, had he or she put her mind to it.  If the answer is yes, as I believe it to be in all four cases before us  -- Gosset, Creighton, Finlay and Naglik -- that is an end of the matter.

 


It may be that in some cases educational deficiencies, such as illiteracy on the part of a person handling a marked bottle of nitroglycerine in the Chief Justice's example, may preclude a person from being able to appreciate the risk entailed by his or her conduct. Problems of perception may have the same effect; regardless of the care taken, the person would have been incapable of assessing the risk, and hence been acquitted.   But, in practice, such cases will arise only exceptionally.  The question of mens rea will arise only where it has been shown that the accused's conduct (the actus reus) constitutes a dangerous and unlawful act (as in unlawful act manslaughter), or a marked departure from the standard of care of a reasonably prudent person (as in manslaughter by criminal negligence, or penal negligence offences).  This established, conflict with the prohibition against punishing the morally innocent will arise only rarely.  In unregulated activities, ordinary common sense is usually sufficient to permit anyone who directs his or her mind to the risk of the danger inherent in an activity to appreciate that risk and act accordingly -- be the activity bottle throwing (as in R. v. DeSousa) or a barroom brawl.  In many licensed activities, such as driving motor vehicles, there must be a basic amount of knowledge and experience before permission to engage in that activity will be granted (see R. v. Hundal).  Where individuals engage in activities for which they lack sufficient knowledge, experience, or physical ability, they may be properly found to be at fault, not so much for their inability to properly carry out the activity, but for their decision to attempt the activity without having accounted for their deficiencies.  The law expects people embarking on hazardous activities to ask questions or seek help before they venture beyond their depth.  Thus even the inexperienced defendant may be properly found to be morally blameworthy for having embarked on a dangerous venture without taking the trouble to properly inform himself or herself.  The criminal law imposes a single minimum standard which must be met by all people engaging in the activity in question, provided that they enjoy the requisite capacity to appreciate the danger, and judged in all the circumstances of the case, including unforeseen events and reasonably accepted misinformation.  Without a constant minimum standard, the duty imposed by the law would be eroded and the criminal sanction trivialized.

 


Mental disabilities short of incapacity generally do not suffice to negative criminal liability for criminal negligence.  The explanations for why a person fails to advert to the risk inherent in the activity he or she is undertaking are legion.  They range from simple absent-mindedness to attributes related to age, education and culture.  To permit such a subjective assessment would be "co-extensive with the judgment of each individual, which would be as variable as the length of the foot of each individual" leaving "so vague a line as to afford no rule at all, the degree of judgment belonging to each individual being infinitely various":  Vaughan v. Menlove (1837), 3 Bing. (N.C.) 468, 132 E.R. 490, at p. 475; see A. M. Linden, Canadian Tort Law (4th ed. 1988), at pp. 116-17.  Provided the capacity to appreciate the risk is present, lack of education and psychological predispositions serve as no excuse for criminal conduct, although they may be important factors to consider in sentencing.

 

This is not to say that the question of guilt is determined in a factual vacuum.  While the legal duty of the accused is not particularized by his or her personal characteristics short of incapacity, it is particularized in application by the nature of the activity and the circumstances surrounding the accused's failure to take the requisite care.  As McIntyre J. pointed out in R. v. Tutton, [1989] 1 S.C.R. 1392, the answer to the question of whether the accused took reasonable care must be founded on a consideration of all the circumstances of the case.  The question is what the reasonably prudent person would have done in all the circumstances.  Thus a welder who lights a torch causing an explosion may be excused if he has made an enquiry and been given advice upon which he was reasonably entitled to rely, that there was no explosive gas in the area.  The necessity of taking into account all of the circumstances in applying the objective test in offences of penal negligence was affirmed in R. v. Hundal, supra.

 


                   The matter may be looked at in this way.  The legal standard of care is always the same -- what a reasonable person would have done in all the circumstances.  The de facto or applied standard of care, however, may vary with the activity in question and the circumstances in the particular case.  The law of civil negligence is helpful in understanding this distinction.  In Salmond and Heuston on the Law of Torts (20th ed 1992), at pp. 227-28, the authors explain that the standard of care

 

will be different in different cases, for a reasonable person will not show the same anxious care when handling an umbrella as when handling a loaded gun. [Beckett v. Newalls Insulation Co. Ltd., [1953] 1 W.L.R. 8, at p. 17]... But this is a different thing from recognising different legal standards of care; the test of negligence is the same in all cases.  So a learner driver must comply with the same objective and impersonal standard as any other driver. [Nettleship v. Weston, [1971] 2 Q.B. 691]  So also must a driver who is old or infirm, as distinct from totally unconscious. [Roberts v. Ramsbottom, [1980] 1 W.L.R. 823]  [Emphasis added.]

 

The same reasoning applies in the criminal context.

 


We see then that the care required by some activities is greater than the care required by others.  For example, under s. 216 of the Criminal Code, it has been held that persons administering medical treatment will be held to the special standard appropriate to that activity (R. v. Rogers, [1968] 4 C.C.C. 278 (B.C.C.A.); R. v. Sullivan (1986), 31 C.C.C. (3d) 62 (B.C.S.C.).  Such a standard has long been recognized by the common law, which made no distinction on the basis of the actor, only on the basis of the activity:  "It is no crime for any one to administer medicine; but it is a crime to administer it so rashly and carelessly as to produce death; and in this respect there is no difference between the most regular practitioner and the greatest quack"  (R. v. Crick (1859), 1 F. & F. 519, 175 E.R. 835).  The standard flows from the circumstances of the activity.  It does not vary with the experience or ability of the actual accused.

 

A person may fail to meet an elevated de facto standard of care in either of two ways.  First, the person may undertake an activity requiring special care when he or she is not qualified to give that care.  Absent special excuses like necessity, this may constitute culpable negligence.  An untrained person undertaking brain surgery might violate the standard in this way.  Second, a person who is qualified may negligently fail to exercise the special care required by the activity.  A brain surgeon performing surgery in a grossly negligent way might violate the standard in this second way.  The standard is the same, although the means by which it is breached may differ.

 

Just as the adoption of a uniform standard of care which is blind to personal characteristics of the accused short of incapacity precludes lowering the standard for deficiencies of experience and temperament, so it precludes raising the standard for special experience or training.  Since the criminal law is concerned with setting minimum standards for human conduct, it would be inappropriate to hold accused persons to a higher standard of care by reason of the fact that they may be better informed or better qualified than the person of reasonable prudence.  Some activities may impose a higher de facto standard than others; brain surgery requires more care than applying an antiseptic.  But as discussed earlier, this flows from the circumstances of the activity, not from the expertise of the actor.

 


The foregoing analysis suggests the following line of inquiry in cases of penal negligence.  The first question is whether actus reus is established. This requires that the negligence constitute a marked departure from the standards of the reasonable person in all the circumstances of the case.  This may consist in carrying out the activity in a dangerous fashion, or in embarking on the activity when in all the circumstances it is dangerous to do so. 

 

The next question is whether the mens rea is established.  As is the case with crimes of subjective mens rea, the mens rea for objective foresight of risking harm is normally inferred from the facts.  The standard is that of the reasonable person in the circumstances of the accused.  If a person has committed a manifestly dangerous act, it is reasonable, absent indications to the contrary, to infer that he or she failed to direct his or her mind to the risk and the need to take care.  However, the normal inference may be negated by evidence raising a reasonable doubt as to lack of capacity to appreciate the risk.  Thus, if a prima facie case for actus reus and mens rea is made out,** it is necessary to ask a further question: did the accused possess the requisite capacity to appreciate the risk flowing from his conduct?  If this further question is answered in the affirmative, the necessary moral fault is established and the accused is properly convicted.  If not, the accused must be acquitted.

 

I believe the approach I have proposed to rest on sound principles of criminal law.  Properly applied, it will enable the conviction and punishment of those guilty of dangerous or unlawful acts which kill others.  It will permit Parliament to set a minimum standard of care which all those engaged in such activities must observe.  And it will uphold the fundamental principle of justice that criminal liability must not be imposed in the absence of moral fault. 


I conclude that the legal standard of care for all crimes of negligence is that of the reasonable person.  Personal factors are not relevant, except on the question of whether the accused possessed the necessary capacity to appreciate the risk.

 

C.                Application of the Law to This Appeal

 

The trial judge properly found that Mr. Creighton committed the unlawful act of trafficking in cocaine.  He also found that he was guilty of criminal negligence, using the standard which I view as correct, the standard of the reasonable person.  The only remaining question, on the view I take of the law, was whether the reasonable person in all the circumstances would have foreseen the risk of bodily harm.  I am satisfied that the answer to this question must be affirmative.  At the very least, a person administering a dangerous drug like cocaine to another has a duty to inform himself as to the precise risk the injection entails and to refrain from administering it unless reasonably satisfied that there was no risk of harm.  That was not the case here, as the trial judge found.  

 

The conviction was properly entered and should not be disturbed.  Like the Chief Justice, I find it unnecessary to consider the alternative ground of manslaughter by criminal negligence.

 

I would answer the constitutional question in the negative and dismiss the appeal.

 

Appeal dismissed.


 

Solicitors for the appellant:  Rosen, Fleming, Toronto.

 

Solicitor for the respondent:  The Attorney General for Ontario.

 

Solicitor for the intervener the Attorney General of Canada:  John C. Tait, Ottawa.

 

Solicitor for the intervener the Attorney General of Quebec:  François Huot, Québec.

 

Solicitor for the intervener the Attorney General of Manitoba:  Deborah Carlson, Winnipeg.

 

Solicitor for the intervener the Attorney General for Saskatchewan:  W. Brent Cotter, Regina.

 



     * See Erratum [2009] 1 S.C.R. iv.

     ** See Erratum [1993] 3 S.C.R. iv

     * See Erratum [1993] 3 S.C.R. iv

     ** See Erratum [2007] 3 S.C.R. iv.

 

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