CRM 200 Lecture Notes - Lecture 5: Willful Blindness, Mens Rea, Murder
3 May 2018
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Lecture 5: Mens Rea II
Review of Last Week: Principles
• Relation of the Fault Element to the Prohibited Act: R. v. Creighton (1993)
• Subjective and Objective Fault Elements:
o Draw inferences: R. v. Buzzanga (1979)
o Merely evidence vs. The basis of liability: R. v. Tennant (1975)
• Common Law Presumptions vs. Constitutional Requirements of Mens Rea:
o Subjective mens rea presumed in the absence of a clear legislative design to the contrary: R. v. Beaver (1957); R. v. Sault. Ste.
Marie (City) (1978)
o Subjective mens rea required by Charter only in relation to special stigma crimes of murder, attempted murder, war crimes (remember
their cases)
• Mistake of Fact and Intoxication: Section 33.1 of the CCC
o Dictates that intoxication cannot be used as a defence for general intent crimes
o Are not full defences but rather they’re conditioned towards circumstances that make the fault element difficult to prove for the
prosecution
Review of Last Week: Subjective Elements
• Intent, purpose and willfulness the highest standard.
• Willfully = intent, as per R. v. Buzzanga (1979) and R. v. Docherty (1989)
• Knowledge a lower form than intent, but still a high standard (high enough for murder: R. v. Martineau).
o Knowledge of the likelihood of death
• Willful blindness: R. v. Sansregret (1985); R. v. Jorgensen (1995); R. v. Briscoe (2010)
o Willful blindness as deliberate ignorance
• Willful blindness and knowledge on the same level
• Recklessness is the lowest form of subjective mens rea.
o A person who sees a risk and proceeds to take that risk anyways
• Transferred Subjective Mens Rea: R. v. Droste (1984); D. v. Deakin (1974)
o The idea that a fault element for a crime can be transferred to the actus reus of another crime that happened as a result of the first
crime
o Section 229(b)
• Section 229 - Culpable homicide is murder (ON MIDTERM)
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o (a) Where the person who causes the death of a human being
▪ (I) Means to cause his death, or
▪ (II) Means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;
o (b) Where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause
his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being,
notwithstanding that he does not mean to cause death or bodily harm to that human being; or
o (c) Where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes
death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.
Objective Standards: Defining the Reasonable Person
Some judges have tried
unsuccessfully to make the
reasonable person resemble
the accused (Lamer J in R.
v. Tutton 1989 and R. v.
Creighton 1993)
• The reasonable person should be able to be computed with characteristics such
• Youth or age
• Mental development
• Level of knowledge.
Majority in Creighton: only
relevant personal
characteristics are those that
establish incapacity to
appreciate the nature and
quality of the prohibited
circumstances
• Reasonable person will only be given the characteristic of the accused in very specific and limited cases, where
the accuses characteristic directly links the the nature of the offence
• The reasonale person shouldn’t e this perfet ideology of soiety but rather a close identity to the defendant
R. v. Beatty (2008):
• Personal attributes such as age, experience and education are not relevant
• What the accused thought but what the accused person in that circumstance should have thought
• The reasonable person should have the same characteristic as the accused. = proven unsuccessful. Proven in the
cases above = Personal attributes such as age, experience and education are not relevant.
o Because this meant to be an objective test.
o If you put in all those characteristic then the test will become a subjective test.
• Charged for mishandling a marked container, Accused's illiteracy would be given to the reasonable person.
Objective Standards: Degrees of Negligence
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SECTION 231.5 (ALSO
ON MIDTERM)
• Negligence in the criminal context needs to be distinguished from negligence in the civil context (simple
negligence- lowest level in tort cases)
Not only unreasonable
conduct or simple
negligence, but a marked
departure
from the standard of care
that could be expected of a
reasonable person:
R. v.
Hundal (1993);
R. v. Beatty (2008)
• Hundal & Beatty: both cases covering dangerous driving, fall into 2nd degree of negligence,
o Hundal:
▪ an accused who is involved in a fatal accident in heavy traffic in downtown Vancouver,
▪ the accused testified that the though that he wouldn’t be able to stop in time for a yellow light and
as such drove through the light.
▪ Several witnesses testified that they saw Hundal pass the intersection after the light turned red,
including police testimony that also supported this fact.
▪ Another witness, that was driving behind him for some time that he had seen Hundal drive
through another light in the same fashion.
▪ As a result of his second time running through the light, he killed a person.
▪ His actions were a marked departure of what a reasonable person would have done.
▪ A reasonable person wouldn’t have run through several lights.
▪ As such the objective fault element was proved and he was found guilty
o Beatty:
▪ found no marked departure. Beatty’s truck had momentarily crossed the yellow line and killed 3
people.
▪ Witnesses said that Beatty had been driving perfectly before the accident and intoxication was
not an issue.
▪ Beatty said it was a momentary lapse of consciousness leading him to swerve onto oncoming
traffic.
▪ Court found that Beatty’s actions did not constitute a marked departure from reasonable
behaviour.
• Difference between marked departure and no marked departure in these two cases
R. v. J.F. (2008);
R. v. Tutton (1989):
Basic negligence standards
vs. criminal negligence:
marked and substantial
departure
• JF
o the court said that dangerous driving cases will usually fall under marked departure.
o JF was a foster father to a child named M, this child died due to multiple blunt traumas caused by the
foster mother, and she pleaded guilty to manslaughter.
o JF was charged with manslaughter by criminal negligence and failing to provide the necessaries of life.
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Document Summary
Constitutional requirements of mens rea: subjective mens rea presumed in the absence of a clear legislative design to the contrary : r. v. beaver (1957); r. v. sault. Some judges have tried unsuccessfully to make the reasonable person resemble the accused (lamer j in r: tutton 1989 and r. v. Not only unreasonable conduct or simple negligence, but a marked departure from the standard of care that could be expected of a reasonable person: v. Jf: v. j. f. (2008), v. tutton (1989): Doesn"t matter that you believe that because the fault element is objective. Its about what a reasonable person would believe: not charged with murder but with criminal negligence under section 219. Section 219 ccc (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,
