R. v. Creighton

R. v. Creighton
Collection
Supreme Court Judgments
Date
1993-09-09
Report
[1993] 3 SCR 3
Case number
22593
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 22593
Decision Content
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 e