• M. Myschyshyn (Law Student)

Tremors- An Elevated Standard of Care in Cases of Criminal Negligence (A Student’s Perspective)

Homicide, the killing of another person, is an unfortunate tragedy which the law must deal with. In Canadian law, culpable homicide, or death caused by a legally blameworthy action, is categorized into murder, manslaughter and infanticide. Manslaughter is defined as homicide without intention to kill and includes two predominant categories, namely: unlawful act and criminal negligence. Non-culpable homicide also exists, which includes, for example, homicide by a non-negligent accident or by self defence.

Unlawful acts causing death may be considered manslaughter under section 222 (5) (a) under the Criminal Code.[if !supportFootnotes][1][endif] For example, in R v Creighton, the accused was charged with unlawful act manslaughter. In that case, the accused assisted in the delivery of an illicit drug by intravenous injection into the deceased, an unlawful and objectively dangerous act.[if !supportFootnotes][2][endif] An unfavourable reaction followed soon after the delivery of the drug, including convulsions, to which the accused reacted by fleeing the scene and actively abstained from calling for help. The court noted that the test for manslaughter by unlawful act is “objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act”.[if !supportFootnotes][3][endif] This test does not require foreseeability of the risk of death and was deemed by the court to not infringe section 7 of the Charter.

The other major category of manslaughter falls within criminal negligence causing death.[if !supportFootnotes][4][endif] Much like an action in negligence in tort law, an action in criminal negligence relies on an objective legal test to determine culpability.[if !supportFootnotes][5][endif] However, unlike the civil action in negligence which only requires the plaintiff to prove that, on a balance of probabilities, the defendant departed from the standard of care, an action in criminal negligence requires that the Crown prove, beyond a reasonable doubt, that the action or inaction of the accused was a marked and substantial departure from the standard of care. Notably, depending on the context of the negligence action, the Crown may need to prove that the behaviour of the accused fell slightly more or less from the “marked departure” standard, along with other elements.[if !supportFootnotes][6][endif]

The mens rea requirement for dangerous operation of motor vehicle leading to death is based on a modified objective test of the civil test for the objective interpretation for negligence, highlighted in R v Beatty.[if !supportFootnotes][7][endif] The modified objective test requires that the accused drive in a manner considered to be a marked departure from how a reasonable person would have or would not have driven and requires the court to consider the context of events surrounding the incident.[if !supportFootnotes][8][endif] Part of the reason that an objective test is applied in cases of criminal negligence and dangerous driving stems from the fact that drivers are expected to hold a valid license, which puts offenders at a minimum mental standard (assuming uniform licensing requirements).[if !supportFootnotes][9][endif]

In considering the conduct of the accused in R v JF, a case of death resulting from neglect of a child, the court noted that the behaviour of the accused should be assessed as compared to a reasonably prudent parent and not just any individual with no experience with children; the standard on a charge of criminal negligence causing death is a marked and substantial departure from this reasonableness standard.[if !supportFootnotes][10][endif]

In both R v JF and R v Beatty, the court applies objective mens rea standards in their legal analysis, however, somewhat elusively, the knowledge of the accused, which is knowledge of parenting and of operating a vehicle, respectively, is built into the “reasonable person” to which the accused are compared to. The higher standard of care imposed by the courts in these cases of criminal negligence seems to mirror the higher standard of care imposed in civil actions of negligence when professionals are under scrutiny.[if !supportFootnotes][11][endif] However, a discussion of criminal negligence in R v Creighton divided the court on whether “human frailties” or “special experience or knowledge relating to the conduct in question” should decrease or increase, respectively, the standard of care in criminal negligence cases. Recent cases (JF and Beatty) clarify that the court is more comfortable ascribing higher standards of care when the accused is clearly expected to harbour a higher level of knowledge. Indeed, for some situations, a higher standard of care is codified as a legal duty, for example, for medical professionals and professionals handling explosives or firearms.[if !supportFootnotes][12][endif]

The above discussion is a primer for how Canadian courts may have handled the Italian cases surrounding the 2009 L'Aquila earthquake.

In April 2009, following several small tremors, L’Aquila was hit with a devastating earthquake that killed over 300 people. In months following the deadly earthquake, six experts (three seismologists, a volcanologist, and two seismic engineers) informed a public official that the small tremors were unlikely, but still possible, to cause a dangerous quake. The public official then communicated to media that the small tremors were favourable, in that they assisted in the dispersion of energy, and that the situation was normal, an overstatement of the information received from scientists.[if !supportFootnotes][13][endif] The statement provided by the public official relieved public anxiety and convinced at least some of the individuals who were contemplating evacuation to remain.[if !supportFootnotes][14][endif] The deadly quake did hit and public uproar concerning the recommendations to stay followed. The six scientists and public official were sentenced to a six year prison sentence each and ordered to pay over €9 million in damages at trial in 2012 for involuntary manslaughter.[if !supportFootnotes][15][endif] The trial judge convicted the public official for his misleadingly reassuring statement and the scientist for failing to correct him on this point.[if !supportFootnotes][16][endif] At appeal, the scientists were acquitted but the conviction of the public official was maintained, albeit with a reduced two year sentence.[if !supportFootnotes][17][endif] The appellate decision was upheld at Italy's Supreme Court of Cassation.[if !supportFootnotes][18][endif]

The L’Aquila earthquake case brings up many interesting points to consider in criminal negligence. Canadian courts would have to decide whether the public official, in communicating inaccurate and misleading information to the public, and the scientists, in their failure to correct the statements, showed a wanton or reckless disregard for the lives or safety of the community at risk - a marked and substantial departure from professional standards.[if !supportFootnotes][19][endif] Ultimately, the courts would probably rely on the legal duties of the professionals to reach a verdict. Exactly what the legal duties are of each professional and how these duties would affect the standard of care in these criminal negligence cases is difficult to estimate. The west coast of Canada has been due for a large earthquake for some time now, perhaps prudent professional responses could avoid a case like the aftermath of L’Aquila earthquake - a tragedy like this would be bound to shake things up in Canadian criminal negligence jurisprudence.[if !supportFootnotes][20][endif]

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Endnotes

[if !supportFootnotes][1][endif] Criminal Code, RSC 1985 c C-46, s 222 (5) (a).

[if !supportFootnotes][2][endif] R v Creighton, [1993] 3 SCR 346 at para 8, 1993 CarswellOnt 115 [Creighton].

[if !supportFootnotes][3][endif] Creighton at para 12.

[if !supportFootnotes][4][endif] Criminal Code, RSC 1985 c C-46, s 222 (5) (b).

[if !supportFootnotes][5][endif] Philip H Osborne, The Law of Torts, 3rd ed (Toronto: Irwin Law, 2007) at 28.

[if !supportFootnotes][6][endif] Larry C Wilson, “Beatty, J F, and the Law of Manslaughter”, (2010) 47 Alta L Rev 65, see para 41.

[if !supportFootnotes][7][endif] R v Beatty, 2008 SCC 5 at para 8, [2008] 1 SCR 49 [Beatty].

[if !supportFootnotes][8][endif] Beatty at para 39.

[if !supportFootnotes][9][endif] Beatty at para 30

[if !supportFootnotes][10][endif] R v JF, 2008 SCC 60, 2008 CarswellOnt 6339.

[if !supportFootnotes][11][endif] Philip H Osborne, The Law of Torts, 3rd ed (Toronto: Irwin Law, 2007) at 49.

[if !supportFootnotes][12][endif] Criminal Code, RSC 1985 c C-46, ss 79, 86 (1), and 216.

[if !supportFootnotes][13][endif] https://www.lexology.com/library/detail.aspx?g=a6a32249-b49d-4e8f-8ddf-0375651118c3

[if !supportFootnotes][14][endif] http://www.nytimes.com/2012/10/23/world/europe/italy-convicts-7-for-failure-to-warn-of-quake.html ; http://www.dailymail.co.uk/news/article-2829107/Scientists-jailed-manslaughter-did-not-predict-deadly-earthquake-Italy-killed-309-people-cleared.html

[if !supportFootnotes][15][endif] http://www.dailymail.co.uk/news/article-2829107/Scientists-jailed-manslaughter-did-not-predict-deadly-earthquake-Italy-killed-309-people-cleared.html ; http://www.sciencemag.org/news/2013/01/judge-laquila-earthquake-trial-explains-his-verdict

[if !supportFootnotes][16][endif] http://www.dailymail.co.uk/news/article-2829107/Scientists-jailed-manslaughter-did-not-predict-deadly-earthquake-Italy-killed-309-people-cleared.html ; https://www.lexology.com/library/detail.aspx?g=a6a32249-b49d-4e8f-8ddf-0375651118c3

[if !supportFootnotes][17][endif] http://www.sciencemag.org/news/2015/02/why-italian-earthquake-scientists-were-exonerated

[if !supportFootnotes][18][endif] http://www.sciencemag.org/news/2015/11/italy-s-supreme-court-clears-l-aquila-earthquake-scientists-good

[if !supportFootnotes][19][endif] Criminal Code, RSC 1985 c C-46, s 219 (1).

[20] http://www.cbc.ca/news/canada/british-columbia/fault-lines-big-one-1.3795416[if !supportFootnotes]