R. v. Tutton

R. v. Tutton
Collection
Supreme Court Judgments
Date
1989-06-08
Report
[1989] 1 SCR 1392
Case number
19284
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.; L'Heureux-Dubé, Claire
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 19284
Decision Content
R. v. Tutton, [1989] 1 S.C.R. 1392
Her Majesty The Queen Appellant
v.
Arthur Thomas Tutton Respondent
and
Carol Anne Tutton Respondent
indexed as: r. v. tutton
File No.: 19284.
1987: November 10; 1989: June 8.
Present: Dickson C.J. and Beetz*, Estey*, McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for ontario
Criminal law -- Criminal negligence -- Necessaries of life ‑‑ Manslaughter -- Diabetic child dying after insulin withdrawn by parents ‑‑ Parents' action motivated by belief that son cured by Divine intervention ‑‑ Belief in faith healing part of parents' religious convictions -- Whether or not parents guilty of causing death through criminal negligence -- Whether or not objective standard or subjective standard to be used in determining if wanton or reckless disregard for life or safety of others -- Criminal Code, R.S.C. 1970, c. C-34, ss. 197(1), (2), 202(1), 205(1), (2), (3), (4), (5), 219.
Respondents were parents of a five‑year‑old diabetic. They believed in faith healing but their religious convictions did not prevent them from seeking and acting on medical advice or from taking medicines. As the result of the intentional withholding of prescribed insulin upon the belief that the child had been miraculously cured, the child died.
Respondents were charged with causing their son's death by criminal negligence in that they denied him the necessaries of life without lawful excuse and thereby committed manslaughter. They raised the defence of an honest although mistaken belief in the existence of a circumstance which would render their conduct non‑culpable. Respondents were convicted of manslaughter and appealed to the Court of Appeal which set aside the convictions and directed new trials. This appeal was taken by leave.
Held: The appeal should be dismissed.
Per Dickson C.J. and Wilson and La Forest JJ.: The imposition of criminal liability in the absence of proof of a blameworthy state of mind, either as an inference from the nature of the act committed or by other evidence, does not sit comfortably with the principles of penal liability and fundamental justice. A serious criminal offence, absent clear statutory language and purpose to the contrary, should not be interpreted as an absolute liability offence. Rather, the presumption should be in favour of some degree of mental blameworthiness if the text and purpose can support such an interpretation.
Section 202 of the Criminal Code is notorious in its ambiguity; its interpretation depends on which words are emphasized. Given its fundamental ambiguity, it should be given the interpretation most consonant not only with its text and purpose but also, where possible, with the broader concepts and principles of the criminal law.
The phrase "wanton or reckless disregard for the lives or safety of other persons" signifies more than gross negligence in the objective sense. It requires some degree of awareness or advertence to the threat to the lives or safety of others or alternatively a wilful blindness to that threat which is culpable in light of the gravity of the risk assumed.
Conduct that displays a wanton or reckless disregard for the lives or safety of others will constitute the actus reus of the offence under s. 202 and be prima facie evidence of the accused's blameworthy state of mind. A person functioning with normal faculties of awareness and engaging in a grave departure from the norm can be assumed to be either aware of the risk or wilfully blind to it. Proof of the conduct will cast an evidentiary burden on the accused to explain why the inference should not be drawn.
Malice or intent in the sense of a mind directed to a purpose is not an element of s. 202 . The fact that an accused may desire or calculate that his purpose can be achieved without the realization of the risk does not relieve the accused of liability under s. 202 if he either adverted to or became aware of the risk or closed his eyes to the reality of it.
This Court has established that the criminal negligence prohibited under s. 202 is advertent negligence. The case for the adoption of an objective standard of liability is not strong enough to justify a departure from established principles. Before overruling a previous decision, the Court should consider the introduction of the Charter, the alteration of a precedent in later authorities, the creation of uncertainty by the continued existence of the precedent and whether overturning the precedent will expand the range of criminal liability and work to the detriment of the accused. A departure from established principles is not justified in this case.
Proof of the mental element of advertence to the risk or wilful blindness to the risk will not undermine the policy objectives of s. 202 . The subjective test would at most offer protection for those who due to some peculiarity or unexpected accident commit conduct which, although wanton or reckless with respect to the lives and safety of others, can be explained as inconsistent with any degree of awareness of or wilful blindness to such a risk.
A subjective interpretation of s. 202 does not render superfluous the role of manslaughter within the scheme of the Code's homicide provisions. The murder provisions will in general be available only if a higher degree of intent is proven than awareness of or wilful disregard of a risk to the lives and safety of others.
Constitutional issues did not arise in this case, and constitutional considerations would not be precluded if a case involving constitutionality were to arise.
Per McIntyre and L'Heureux‑Dubé JJ.: An objective test must be used in determining criminal negligence. It is the conduct of the accused, not his intention or mental state, which is examined. No distinction should be made between any acts of commission or omission. Section 202 clearly applies to a person who is negligent in doing anything or in omitting to do anything that is his duty and shows a wanton or reckless disregard for the lives or safety of others.
Negligence is a factor that may lead to criminal liability. It connotes the opposite of thought‑directed action and precludes the element of positive intent to achieve a given result. Section 202 , therefore, restrains conduct and its results; it punishes the consequence of mindless action and not the state of mind.
The application of the objective test under s. 202 may not be made in a vacuum. The surrounding circumstances and the accused's perception of those facts must be considered in order to determine whether or not his conduct was reasonable. Where an offence rests on the concept of negligence, honestly held belief in circumstances which would afford a defence must, to be effective, be reasonably held.
Here, the jury should consider respondents' belief that their son had been cured by Divine intervention in light of the whole background of the case in order to determine if it was honest and reasonable. The jury would then have to determine if their conduct represented a marked and significant departure from the standard to be observed by reasonably prudent parents.
Per Lamer J.: The reasons of McIntyre J. were agreed with, subject to certain considerations. Firstly, the application of the objective norm in s. 202 of the Criminal Code must make generous allowance for factors particular to the accused such as youth, mental development and education. Further, Parliament did not determine the nature of the negligence required to ground criminal liability when enacting s. 202 but merely defined the expression "criminal negligence" wherever used in the Code. Finally, the constitutionality of s. 205(5) (b) was not in issue in this case. Assuming without now deciding that it is a principle of fundamental justice that knowledge of a likely risk or deliberate ignorance thereof (foresight or wilful blindness) is an essential element of the offence of manslaughter, the issue as to whether proof of the substituted element of "criminal negligence" as defined by Parliament and interpreted by this Court satisfies the test set out in R. v. Vaillancourt, [1987] 2 S.C.R. 636, does not arise. This constitutional consideration is not to be precluded by concurrence in McIntyre J.'s decision.
Cases Cited
By Wilson J.
Considered: R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299; O'Grady v. Sparling, [1960] S.C.R. 804; Arthurs v. The Queen, [1974] S.C.R. 287; referred to: Beaver v. The Queen, [1957] S.C.R. 531; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; Sansregret v. The Queen, [1985] 1 S.C.R. 570; R. v. Robertson, [1987] 1 S.C.R. 918; R. v. Paré, [1987] 2 S.C.R. 618; Mann v. The Queen, [1966] S.C.R. 238; Binus v. The Queen, [1967] S.C.R. 594; Peda v. The Queen, [1969] S.C.R. 905; Commissioner of Police of the Metropolis v. Caldwell, [1982] A.C. 341; R. v. Lawrence, [1982] A.C. 510; Leblanc v. The Queen, [1977] 1 S.C.R. 339; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Sharp (1984), 12 C.C.C. (3d) 428; R. v. Vasil, [1981] 1 S.C.R. 469; R. v. Hill, [1986] 1 S.C.R. 313; R. v. Quin, [1988] 2 S.C.R. 825; R. v. Stevens, [1988] 1 S.C.R. 1153.
By McIntyre J.
Distinguished: Sansregret v. The Queen, [1985] 1 S.C.R. 570; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; referred to: R. v. Waite (1986), 28 C.C.C. (3d) 326, aff'd [1989] 1 S.C.R. 000.
By Lamer J.
Referred to: R. v. Vaillancourt, [1987] 2 S.C.R. 636.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, ss. 197(1)(a), (2)(a), 202(1), (2), 203, 204, 205(1), (2), (3), (4), (5), 212(a), (b), (c), 213, 219, 233.
Authors Cited
Colvin, Eric. "Recklessness and Criminal Negligence" (1982), 32 U. of T. L.J. 345.
Colvin, Eric. Principles of Criminal Law. Toronto: Carswells, 1986.
Fletcher, George P. "The Theory of Criminal Negligence: A Comparative Analysis," 119 U. Pa. L.R. 401 (1971).
Fletcher, George P. Rethinking Criminal Law. Boston: Little, Brown, 1978.
Hart, H. L. A. "Negligence, Mens Rea and Criminal Responsibility," in Oxford Essays in Jurisprudence. Edited by A. G. Guest. London: Oxford University Press, 1961.
O'Hearn, P. J. T. "Criminal Negligence: An Analysis in Depth" (1964‑65), 7 Crim. L.Q. 27.
Pickard, Toni. "Culpable Mistakes and Rape: Relating Mens Rea to the Crime" (1980), 30 U. of T. L.J. 75.
Stalker, Anne. "Can George Fletcher Help Solve The Problem of Criminal Negligence" (1982), 7 Queens L.J. 274.
Stuart, Don. Canadian Criminal Law: A Treatise, 2nd ed. Toronto: Carswells, 1987.
Williams, Glanville. Criminal Law: The General Part, 2nd ed. London: Stevens & Sons, 1961.
APPEAL from a judgment of the Ontario Court of Appeal (1985), 18 C.C.C. (3d) 328, setting aside convictions by Salhany Co. Ct. J. sitting with jury and ordering a new trial. Appeal dismissed.
W. J. Blacklock and Kenneth L. Campbell, for the appellant.
Andrew Kerekes, for the respondent Arthur Thomas Tutton.
Irwin Koziebrocki, for the respondent Carol Anne Tutton.
//Wilson J.//
The judgment of Dickson C.J. and Wilson and La Forest JJ. was delivered by
WILSON J. -- I have had the benefit of the reasons of my colleagues Justices McIntyre and Lamer and I agree with them that the appeal should be dismissed and a new trial ordered because the trial judge's charge failed to make clear to the jury that the Crown had the burden to prove all the elements of the offence of manslaughter by criminal negligence. I do not, however, agree with my colleagues' conclusion that criminal negligence under s. 202 of the Criminal Code, R.S.C. 1970, c. C-34, consists only of conduct in breach of an objective standard and does not require the Crown to prove that the accused had any degree of guilty knowledge. I also have reservations concerning the approach my colleagues suggest is available in order to relieve against the harshness of the objective standard of liability which they find in s. 202 and to ensure that the morally innocent are not punished for the commission of serious criminal offences committed through criminal negligence.
The facts and the judgments below are fully set out in the judgment of my colleague McIntyre J. I wish only to emphasize two points. The respondents' defence in this case centred around their claim of honest but mistaken belief as to the nature of their son's condition. Although the respondents were aware that their son was a diabetic who needed regular insulin injections, they claimed that because of their religious convictions they sincerely believed that he had been cured by divine intervention and were unaware of the serious nature of his illness following the withdrawal of insulin. For example, in a statement provided to the police shortly after her son's death from the complications of diabetic hyperglycemia the respondent Carol Anne Tutton stated:
Complete faith in Jesus and obedience to the word of God is the reason for our decision to cease giving Chris insulin. Since I have accepted Jesus as my personal Saviour and Lord. He has revealed himself to me in vision and spoke in words of his own that Christopher is healed and further that complete faith in Him not man's doctrine or shall I say the world's teachings will bring forth the manifestation of this healing. Standing on the promises of God and His holy Word 100%, Wednesday, October 14, 1981 I did not administer Christopher insulin. Thursday and Wednesday Christopher ate, played normally although Thursday evening he became sick to his stomach. Friday I kept him home from school and he kept liquids in his stomach. Saturday morning until approximately 1:00 PM he was resting comfortably. I left him to make myself a sandwich about five perhaps ten minutes, rechecked him and found him to be not breathing. My husband administered mouth to mouth resuscitation until the police department arrived about five minutes later.
The second point which I wish to emphasize is that the Ontario Court of Appeal ((1985), 18 C.C.C. (3d) 328) would not have applied an objective standard of liability in this case. Dubin J.A. stated at p. 345:
I do not think, however, that a loving and caring parent who omits to seek medical assistance because of the honest but mistaken belief that his or her child was not in need of such assistance should be found to have shown a wanton or reckless disregard for its life or safety merely because it can be said that reasonable parents would have responded otherwise, or even that in omitting to seek medical assistance, there was a marked and substantial departure from the standard of care of reasonable parents. In such a case, I think a distinction should be made between acts of commission and acts of omission and, in the latter case, a subjective test should be used.
The Court of Appeal concluded that the trial judge erred in instructing the jury that no mens rea was required for the crime of manslaughter by means of criminal negligence. Dubin J.A. stated at pp. 349-50:
In this case, from the portion of the judge's charge which I have reproduced above, the jury could not have helped but be under the impression that a departure from the standard of care of reasonable parents constituted a wanton or reckless disregard for the life or safety of Christopher. Throughout, the test given was purely an objective one. In the portion of the charge that I have reproduced, no other definition of wanton or reckless was provided to the jury.
In my opinion, for a conviction of manslaughter in this case, the jury had to be satisfied that the appellants, in failing to administer insulin and/or to seek timely medical assistance, knew that there was a risk to the life or safety of Christopher and unjustifiably took that risk, or closed their minds to any such risk out of a disregard for his life or safety. It would have been open to the jury in this case to conclude, notwithstanding the protestations of the parents, that they knew that Christopher had not been cured, particularly having regard to what had transpired the year before, and that they knew that there was a risk of harm in their failure to continue the administration of insulin.
It would also have been open to the jury to reject the parents' testimony as to the child's condition following the withdrawal of insulin, and to conclude that it was apparent to them that he needed medical assistance at that time.
Thus, in considering the state of mind of the appellants, the jury were entitled to take into consideration all the evidence. What reasonable parents might have done under the circumstances is only relevant in determining the state of mind of the appellants. But unless they were satisfied that the parents actually knew of the risk of harm, or that they completely closed their minds to it out of a disregard for the life or safety of Christopher, the jury could not convict of manslaughter.
For convenience, I reproduce here the relevant sections of the Criminal Code :
197. (1) Every one is under a legal duty
(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;
. . .
(2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies upon him, to perform that duty, if
(a) with respect to a duty imposed by paragraph (1)(a) or (b),
(i) the person to whom the duty is owed is in destitute or necessitous circumstances, or
(ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently; or
. . .
202. (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
205. (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
(2) Homicide is culpable or not culpable.
(3) Homicide that is not culpable is not an offence.
(4) Culpable homicide is murder or manslaughter or infanticide.
(5) A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act,
(b) by criminal negligence,
(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death, or
(d) by wilfully frightening that human being, in the case of a child or sick person.
. . .
219. Every one who commits manslaughter is guilty of an indictable offence and is liable to imprisonment for life.
I wish to deal first with the implications of my colleagues' approach in this case. By concluding that s. 202 of the Criminal Code prohibits conduct and the consequences of mindless action absent any blameworthy state of mind, they have, in effect, held that the crime of criminal negligence is an absolute liability offence. Conviction follows upon proof of conduct which reveals a marked and substantial departure from the standard expected of a reasonably prudent person in the circumstances regardless of what was actually in the accused's mind at the time the act was committed.
I take as the point of commencement the following statement of Justice Dickson (as he then was) in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, at pp. 1309-10:
Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Mere negligence is excluded from the concept of the mental element required for conviction. Within the context of a criminal prosecution a person who fails to make such enquiries as a reasonable and prudent person would make, or who fails to know facts he should have known, is innocent in the eyes of the law.
In sharp contrast, "absolute liability" entails conviction on proof merely that the defendant committed the prohibited act constituting the actus reus of the offence. There is no relevant mental element. It is no defence that the accused was entirely without fault. He may be morally innocent in every sense, yet be branded as a malefactor and punished as such.
This Court made clear in Sault Ste. Marie and other cases that the imposition of criminal liability in the absence of proof of a blameworthy state of mind, either as an inference from the nature of the act committed or by other evidence, is an anomaly which does not sit comfortably with the principles of penal liability and fundamental justice: see also Beaver v. The Queen, [1957] S.C.R. 531, Pappajohn v. The Queen, [1980] 2 S.C.R. 120, Sansregret v. The Queen, [1985] 1 S.C.R. 570, and R. v. Robertson, [1987] 1 S.C.R. 918. This is particularly so in the case of offences carrying a substantial term of imprisonment which by their nature, severity and attendant stigma are true criminal offences aimed at punishing culpable behaviour as opposed to securing the public welfare. In the absence of clear statutory language and purpose to the contrary, this Court should, in my view, be most reluctant to interpret a serious criminal offence as an absolute liability offence. As Dickson J. stated in Sault Ste. Marie at p. 1326:
Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.
In this case there can be no doubt that we are dealing with a serious criminal offence. The appellants are charged with committing manslaughter by criminal negligence. Under s. 219 of the Criminal Code then in force they are liable to imprisonment for life. Other offences committed by means of criminal negligence are also serious. For example, causing death by criminal negligence is an indictable offence under s. 203 of the Code carrying with it a liability to life imprisonment. Causing bodily harm by criminal negligence is an indictable offence under s. 204 of the Code carrying a liability to ten years' imprisonment. Criminal negligence in the operation of a motor vehicle could be prosecuted under s. 233 of the Code then in force as an indictable offence with a liability to five years' imprisonment. Taking the above considerations into account, can it be said that s. 202 of the Code creates an absolute liability offence for which conviction will follow on proof of the proscribed act without reference to the accused's state of mind?
My colleague McIntyre J. has concluded that upon the wording of s. 202 it is an inescapable conclusion that Parliament intended liability to follow upon proof of the act or conduct described in the section. In particular, he stresses the reference to conduct which shows wanton or reckless disregard for the lives and safety of others and the fact that what is prohibited is criminal negligence. McIntyre J. states at p. 000:
In choosing the test to be applied in assessing conduct under s. 202 of the Criminal Code , it must be observed at once that what is made criminal is negligence. Negligence connotes the opposite of thought-directed action. In other words, its existence precludes the element of positive intent to achieve a given result. This leads to the conclusion that what is sought to be restrained by punishment under s. 202 of the Code is conduct, and its results. What is punished, in other words, is not the state of mind but the consequences of mindless action. This is apparent, I suggest, from the words of the section, which makes criminal, conduct which shows wanton or reckless disregard. It may be observed as well that the words "wanton or reckless" support this construction, denying as they do the existence of a directing mental state. Nor can it be said that criminal negligence, as defined in s. 202 , imports in its terms some element of malice or intention.
Section 202 of the Code is, in my view, notorious in its ambiguity. Since its enactment in its present form in the 1955 Amendments to the Criminal Code it has bedevilled both courts and commentators who have sought out its meaning. The interpretation put upon it usually depends upon which words are emphasized. On the one hand, my colleague's judgment demonstrates that emphasizing the use of the words "shows" and "negligence" can lead to the conclusion that an objective standard of liability was intended and that proof of unreasonable conduct alone will suffice. On the other hand, if the words "wanton or reckless disregard for the lives or safety of other persons" are stressed along with the fact that what is prohibited is not negligence simpliciter but "criminal" negligence, one might conclude that Parliament intended some degree of advertence to the risk to the lives or safety of others to be an essential element of the offence. When faced with such fundamental ambiguity, it would be my view that the court should give the provision the interpretation most consonant, not only with the text and purpose of the provision, but also, where possible, with the broader concepts and principles of the law: see also R. v. Paré, [1987] 2 S.C.R. 618.
It is obviously important to give meaning and effect to each word employed in s. 202 . Under that section every one is criminally negligent who in doing or in omitting to do anything that it is his duty to do shows wanton or reckless disregard for the lives or safety of other persons. As I have stated, the presumption when we are dealing with a serious criminal offence should be in favour of a requirement of some degree of mental blameworthiness if the text and purpose of the section are susceptible of such an interpretation. This Court, in its previous consideration of s. 202 , concluded that it was intended to prohibit advertent negligence in the sense that the accused must be fixed with an awareness of the risk that is being prohibited. In O'Grady v. Sparling, [1960] S.C.R. 804, Judson J., in comparing what is now s. 202 with a provincial prohibition against driving "without due care or without reasonable consideration for other persons using the highway" stated at p. 808:
There is a fundamental difference between the subject-matter of these two pieces of legislation which the appellant's argument does not recognize. It is a difference in kind and not merely one of degree. This difference has been recognized and emphasized in the recent writings of Glanville Williams on Criminal Law, para. 28, p. 82, and by J. W. C. Turner in the 17th edition of Kenny's Outlines of Criminal Law. I adopt as part of my reasons Turner's statement of the difference to be found at p. 34 of Kenny:
But it should now be recognized that at common law there is no criminal liability for harm thus caused by inadvertence. This has been laid down authoritatively for manslaughter again and again. There are only two states of mind which constitute mens rea, and they are intention and recklessness. The difference between recklessness and negligence is the difference between advertence and inadvertence; they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence. The common habit of lawyers to qualify the word "negligence" with some moral epithet such as "wicked", "gross", or "culpable" has been most unfortunate since it has inevitably led to great confusion of thought and of principle. It is equally misleading to speak of criminal negligence since this is merely to use an expression to explain itself.
Despite the sometimes confusing characterization of the distinct crime of dangerous driving (which I note is not in issue on this appeal), the O'Grady v. Sparling view of criminal negligence was affirmed by various members of the Court in obiter comments in Mann v. The Queen, [1966] S.C.R. 238, at p. 243, Binus v. The Queen, [1967] S.C.R. 594, at pp. 598 and 600, and Peda v. The Queen, [1969] S.C.R. 905, at pp. 911-12, 917-18 and 919-20. These cases are, in my respectful view, very relevant to the question that the Court faces on this appeal. They indicate that on previous occasions the Court considered s. 202 susceptible of an interpretation in keeping with the general principle that some degree of guilty knowledge is an element of all serious criminal offences. It is true that the offence of criminal negligence was not directly in issue in these cases, but at no time did any member of the Court suggest that the subjective approach to the interpretation of the offence of criminal negligence in O'Grady v. Sparling was incorrect or inconsistent with the statutory language or purpose.
In Peda v. The Queen Pigeon J., delivering a concurring judgment for himself and Justice Ritchie, elaborated on the Court's interpretation of s. 202(1) (then s. 191(1)) in O'Grady v. Sparling as follows at pp. 919-20:
Therefore the essential basis on which subsection 1 was held to be aimed at a kind of negligence different from the negligence contemplated in the enactments of regulatory authorities is that "criminal negligence" requires mens rea. It follows, of course, that inadvertent negligence is not criminal. Because negligence in the usual language includes both advertent and inadvertent negligence, it is obvious that in charging a jury on an indictment for "criminal negligence" a judge must in some way explain adequately the kind of negligence that is criminal and make it clear, but not necessarily in those words, that inadvertent negligence is not criminal. It may well be that he can do it by using the language of s. 191(1), seeing that "wanton or reckless" undoubtedly exclude mere inadvertence.
He then stated at p. 920:
By virtue of s. 191(1), a conviction for "criminal negligence" requires "wanton or reckless disregard for the lives or safety of other persons". As against that, subs. 4 contemplates danger to other persons only. There is, therefore, ample room for distinction between the two offences even excluding inadvertence from the lesser.
However, wantonness and recklessness of themselves clearly imply the exclusion of mere inadvertence while "dangerous driving" does not necessarily.
Pigeon J.'s interpretation of the criminal negligence provisions of the Code stresses the phrase "wanton or reckless disregard for the lives or safety of other persons" and the qualification of negligence by the word "criminal". I would respectfully agree that these elements in the section militate against a purely objective standard of liability.
It is my view that the phrase "reckless disregard for the lives or safety of other persons" found in s. 202 , when read in the context of Canadian criminal law jurisprudence, requires the Crown to prove advertence or awareness of the risk that the prohibited consequences will come to pass. This Court has adopted a subjective approach to recklessness in Pappajohn v. The Queen, supra, and has reaffirmed this in the recent case of Sansregret v. The Queen, supra. In doing so the Court has, I believe, implicitly rejected the view that failure to give any thought to whether or not there is a risk can be substituted for the mental state of recklessness as that view is articulated in the majority decisions in Commissioner of Police of the Metropolis v. Caldwell, [1982] A.C. 341 (H.L.), and R. v. Lawrence, [1982] A.C. 510 (H.L.)
The expression "wanton" disregard for the lives and safety of others is perhaps less clear. The word "wanton" taken in its acontextual sense could signal an element of randomness or arbitrariness more akin to an objective standard but, given the context in which it appears, coupled with the adjective reckless, and its clear use to accentuate and make more heinous the already serious matter of disregard for the lives or safety of others, I would think that the preferable interpretation is that the word wanton was intended to connote wilful blindness to the prohibited risk: see P. J. T. O'Hearn "Criminal Negligence: An Analysis in Depth" (1964-65), 7 Crim. L.Q. 27, at p. 411.
In short, the phrase "wanton or reckless disregard for the lives or safety of other persons" signifies more than gross negligence in the objective sense. It requires some degree of awareness or advertence to the threat to the lives or safety of others or alternatively a wilful blindness to that threat which is culpable in light of the gravity of the risk that is prohibited.
In recent years courts and commentators have sought to deal with those aspects of s. 202 which seem to be in tension with a subjective standard. In his valuable treatise Principles of Criminal Law (1986), Professor Colvin has written at p. 120:
The reference to showing wanton or reckless disregard in s. 202 can be used to support the objective test. It is submitted, however, that it is wrong to interpret s. 202 as a complete definition of criminal negligence which includes its mens rea. The better interpretation is that the section does no more than define the conduct which is involved in criminal negligence. Mens rea then remains to be implied in accordance with general principles and this is in effect what the Supreme Court did in O'Grady. This construction is supported by the statement in another Supreme Court case that "conduct disclosing wanton or reckless disregard for the lives or safety of others constitutes prima facie evidence of criminal negligence". [Emphasis in original.]
The other Supreme Court case to which Professor Colvin refers is Arthurs v. The Queen, [1974] S.C.R. 287, in which Ritchie J. after examining the wording of s. 202 stated, at p. 292:
. . . conduct disclosing wanton or reckless disregard for the lives or safety of others constitutes prima facie evidence of criminal negligence.
Ritchie J. then went on to elaborate on what this test means in the context of deciding whether the trial judge had erred in failing to outline a possible defence to the jury. He stated at p. 294
I think that the second question must be governed by the test which I indicated at the outset, and that question therefore is whether the learned trial judge failed to outline to the jury any theory of the defence which was consistent with the appellant having acted otherwise than with wanton or reckless disregard for the lives and safety of others.
What emerges from the test outlined by Ritchie J. in Arthurs v. The Queen is, in my view, a very workable test that is consistent with both the text and purpose of s. 202 and with the basic principles of penal liability. Conduct that displays a wanton or reckless disregard for the lives or safety of others will constitute the actus reus of the offence under s. 202 and be prima facie evidence of the accused's blameworthy state of mind. It can be assumed that a person functioning with normal faculties of awareness and engaging in conduct which represents such a grave departure from the norm is either aware of the risk or is wilfully blind to the risk. Proof of the conduct will, in other words, cast an evidential burden on the accused to explain why the normal inference of conscious awareness or wilful blindness should not be drawn. The inference will arise in most cases because the intent requirement under s. 202 is the minimal intent requirement of awareness or advertence or wilful blindness to the prohibited risk. As Ritchie J. noted in Arthurs v. The Queen at p. 298 the more expansive intent requirement of deliberation is not a necessary element of the offence set out in s. 202 .
I agree with my colleague McIntyre J. that malice or intent in the sense of a mind directed to a purpose is not an element of s. 202 . Moreover, the fact that the accused may desire or calculate that his purpose can be achieved without the realization of the risk does not relieve the accused of liability under s. 202 if he either adverted to or became aware of the risk to the lives or safety of others or wilfully closed his eyes to the reality of that risk.
The approach to criminal negligence set out in Arthurs v. The Queen also finds support in the subsequent case of Leblanc v. The Queen, [1977] 1 S.C.R. 339. In that case the issue was whether evidence of similar facts was admissible to prove the mens rea of an accused who was charged with causing death by criminal negligence when he fatally struck a person while making a low pass in a bush plane. De Grandpré J. observed at p. 356 that "in most cases, the fact itself proves the intent" but that it remained open to the Crown to prove the mens rea not only on the basis of an inference from the commission of the act itself but also by evidence such as the similar facts of previous low passes in order to prove that the accused must have been aware of the risk created by such dangerous methods of flying an airplane. Dickson J., in dissent, approved of the statement in Arthurs v. The Queen that conduct disclosing a wanton or reckless disregard for the lives or safety of others constitutes prima facie evidence of negligence but held at p. 346 that the evidence of similar facts was not admissible because the "mens rea of criminal negligence is determined by an objective standard". I find a certain ambiguity in this position because, in my respectful opinion, the mens rea of advertent negligence can in most cases be determined by reference to an objective standard without in the final analysis itself constituting an objective standard. Similarly, the dissent of Chief Justice Laskin in Arthurs v. The Queen can also perhaps be reconciled with the Court's holding in O'Grady v. Sparling that criminal negligence consists of advertent negligence in so far as the Chief Justice's dissent stands for the propositions that (1) the defence of accident designed to deny some necessary mental element should have been explained to the jury (pp. 308-312) and (2) the requirement of deliberation or in his words "subjective intent" was not a necessary element of the offence of criminal negligence as set out by the Court in O'Grady v. Sparling, Binus v. The Queen, and Peda v. The Queen (pp. 306-307). In any event, I would respectfully agree with Professor Colvin's comment on this Court's decision in Leblanc in "Recklessness and Criminal Negligence" (1982), 32 U. of T. L.J. 345, at p. 356.
The decision of the majority in Leblanc establishes that O'Grady v. Sparling remains good law on the mental element of criminal negligence. The test is subjective: the actor himself must have known of the risks of his conduct. Those provincial appellate courts which have espoused an objective test are in error. This is not meant to suggest, however, that the decisions in the particular cases were wrong. The results would perhaps have been the same even if a subjective test had been used.
It is my view that the jurisprudence of this Court to date establishes that the criminal negligence prohibited under s. 202 is advertent negligence. I would not hesitate to depart from these precedents for solid reasons but I cannot, with due respect to those who think otherwise, agree that the case for the adoption of an objective standard of liability has been made out to the extent required to justify a departure from this Court's previous decisions. On the standard required to justify a departure from the practice of stare decisis, I find the comments of the Chief Justice in his dissent in R. v. Bernard, [1988] 2 S.C.R. 833, at pp. 849-861, instructive. In R. v. Bernard the Chief Just