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Criminal Law

Criminal Law. January 29, 2010. Regina v. Creighton. Facts: Experienced drug user injects girlfriend with cocaine from which she died Charged with unlawful act manslaughter under Section 222(5)(a). Issues.

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Criminal Law

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Presentation Transcript

  1. Criminal Law January 29, 2010

  2. Regina v. Creighton • Facts: • Experienced drug user injects girlfriend with cocaine from which she died • Charged with unlawful act manslaughter under Section 222(5)(a)

  3. Issues • What are the elements of manslaughter, more particularly what is the level of fault for the consequence of causing death • Are the elements constitutionally adequate? • How to apply an objective test, more particularly, what about personal characteristics

  4. Lamer, C.J(minority)4 Fault requirement for causing death objective Ought to have foreseen death Personal characteristics in standard McLachlin J(maj)5 Fault requirement for causing death objective Ought to have foreseen bodily harm No personal characteristics in standard Two Judgments

  5. Principles Discussed • Symmetry • Stigma

  6. Lamer CJ on why objective foresight of death required • Stigma attached to conviction (not murder, not special stigma but serious enough to warrant objective foresight of actual consequence • Symmetry refers to elements analysis ie. if consequence of death (ar) foresight should be to it (mr)

  7. McLachlin J, Elements • Offence with a long history • Actus Reus: unlawful act and causing death • What is an unlawful act? Some level of fault • Only bodily harm need be foreseeable by reasonable person • Contrast with murder that requires subjective foresight of death

  8. McLachlin J. on Symmetry • Unlawful act manslaughter may lack the logical symmetry of modern offences but has stood the test of time • Rejects symmetry because a) not a POFJ just a rule of criminal law that has exceptions b) thin skull rule merges foreseeability of bodily harm and foreseeability of death

  9. McLachlin J on Seriousness • Stigma • Proportionality between punishment and moral blameworthiness • Need to punish intentional conduct more seriously than unintentional

  10. Stigma • “The most important feature of the stigma for manslaughter is the stigma which is not attached to it….A person convicted of manslaughter is not a murderer….”

  11. Relationship between Punishment and MR • Manslaughter has a much more flexible penalty, therefore can fit the circumstances ie no minimum, life as maximim

  12. Nature of Objective Test • Implications for more than manslaughter • All agree look at the circumstances of the offence • Majority: what a reasonable person in the circumstances ought to have foreseen • Minority: someone with the human frailities of the accused

  13. Majority • Personal characteristic erodes minimum standard of care, the point of objective standard • Parliament may hold people engaging in risky behaviour to a minimum standard of care • But morally innocent not to be punished, ie capacity

  14. If a crime is assessed on objective standard • Constitutional limits (Hundal), not simply a variation from the reasonable person but MARKED departure(Penal negligence) • Actus reus must meet standard of penal neg • Objective foreseeability of bh • Did the accused have the capacity to appreciate risk

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