Abolishing Criminal Negligence

In assessing the Canadian system of Criminal Negligence, one considers a comparison to its American counterpart of Tort Law, in which negligence liability is not classified as criminal in nature. The reason for this state of affairs provides perhaps a foundation for discussion toward rectification of the Canadian System: while it is generally acknowledged that an objective liability standard would allow for more administrative convenience, the fault principle so fundamental to negligence regimes of any kind demands that subjective excuses for negligent conduct be available, including capacity-based justifications. As such, Canadian law seems mired in a contradiction in terms: if criminal negligence is to be established according to an objective standard, then there is no room for any form of capacity-based defense if genuine justice is to be done.

Of all the formative players in the evolution of American Tort Law, the great American Jurist Oliver Wendell Holmes was likely the most significant. In evaluating the difficulties of formulating such a body of law, Holmes wrote the following in 1881:

“[If] a man is born hasty and awkward, is always having accidents and hurting…his neighbors…his congenital defects will be allowed for in the courts of Heaven, but his slips are no less troublesome to his neighbors than if they sprang from guilty neglect…The courts…decline to take his personal equation into account.”

In so writing, Holmes spoke to the very same difficulties with which the Criminal Negligence regime endeavors to deal; namely, that allowing for capacity-based excuses for negligent conduct is often to ignore the relational component inherent in negligence. In other words, if a capacity-based rationale can excuse the performance of one’s duty to another or justify the omission of that performance, then the rights of the breaching party are privileged over those of the party who has been harmed by that breach. As presently constituted, the manner in which Canadian Law treats criminal negligence liability runs the risk of subjugating the rights of the harmed party to what is an inherently subjective standard that merely masquerades as an objective one.

Justice Lamer’s concurrence suggests that s. 219 is susceptible to an objective norm test. However, Justice Lamer further suggests that within the context of administering this test, “generous allowance” must be made for all manner of capacity-based traits that may or may not have served to alter the manner in which the defendant may or may not have dealt with the given scenario. In other words, Justice Lamer’s “generous allowance” caveat is no caveat at all in that it obviates whatever “objective” standard he seeks to impose. Indeed, this position runs far closer to that of the dissenting justices in R. v. Tutton, arguing that some degree of knowledge must necessarily be established in order to properly satisfy the mens rea requirement for negligence offenses--after all, if considerations such as age and mental state are relevant to an “objective” standard according to Justice Lamer, then whether the actor subjectively possessed some degree of guilty knowledge and how much of that knowledge can be forgiven is central to an objective inquiry of the kind proposed by Justice Lamer.

Viewed so, the objective standard proposed by the majority in R. v. Tutton, and which primarily governs criminal negligence assessments today, does not account for the considerations it purports to. In American Tort Law, a proven incapacity for the appreciation of a given risk in acting or omitting is sufficient to exculpate one from negligence liability, especially where the accused is either a child or physically disabled. If Justice Lamer’s caveat essentially creates an opportunity for “generous allowance” of consideration of traits such as these in evaluating criminal negligence liability, then he is advocating for the same quasi-subjective standard employed in American Tort Law, which recognizes that the objectivity of a “reasonable person” is subject to all manner of capacity-based fluctuation.

Ultimately, it is true that if “recklessness” in s. 219 is interpreted according to a more subjective standard, it will blur the line between the mens rea requirement of criminal law offenses and that of negligent criminal offenses. However, as discussed above, this line is already blurred beyond distinction by virtue of the Canadian Supreme Court having refused to draw it firmly in determining whether an entirely or objective, entirely subjective or blended test is required in assessing criminal negligence liability. Establishment of some threshold that accounts for some degree of guilty knowledge in inquiring into an actor’s mental state seems required by the statute, but to impose such a standard is to create a perhaps even more complicated task of distinguishing recklessness in a purely criminal context from recklessness in an intentional tortious context. Indeed, this distinction is perhaps so difficult to delineate as to render the exercise an impossibility. To this end, the time has perhaps come to abolish all forms of criminal negligence in favor of adopting a regime that better allows for the kind of pseudo-objective or modified objective inquiry preferred by the Canadian Supreme Court in cases where “gross negligence” simply does not account for the gravity of the duty breached to the injured party. In other words, a strict liability regime with statutorily enumerated capacity-based exceptions would seem to be what the Canadian Criminal Negligence regime wishes to be.