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166 MANITOBA LAW JOURNAL |VOLUME 35 NUMBER 1
occurred. The following is a detailed analysis of my proposal, addressing the crime
as well as the appropriate punishment.
The Code defines criminal negligence as follows:
219. (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,
shows wanton or reckless disregard for the lives or safety of other persons.
Definition of “duty”:
(2) For the purposes of this section, “duty” means a duty imposed by law. 86
This definition of criminal negligence is supplemented by the common law
and yields several requirements which must be met in order to prove a case of
criminal negligence. Of course, one is not charged with “criminal negligence”, but
rather criminal negligence causing bodily harm or death. The following sections
outline the essential elements of the offences and demonstrate how the reckless
failure to abate one’s mental disorder can satisfy those requirements.
A. Parts 1(a) and 1(b) Suggest the Offence May be Constituted by
Either an Action or Inaction.
Clearly, the wording of the provision in the Code leaves open the possibility
of failing to take one’s medication as constituting the actus reus of criminal
negligence, as an inaction. This requirement is therefore met, presumably without
much contention.
B. The Mens Rea Requirement of Criminal Negligence is
Objective
As the Code requires a “wanton or reckless disregard for the lives or safety of
others” in order to establish criminal negligence, it is necessary to determine what
standard of conduct and mens rea is anticipated by these words in order to see if
neglecting to take anti-psychotic pills would fall under the offence.
As there is no mental state involved in criminal negligence per se, the
standard of conduct is objective. While the mens rea of criminal negligence has
always been a contested subject in Canadian jurisprudence, the Supreme Court of
Canada began to set the standard in R v Tutton, 87 however, the Court was divided
on the question of whether criminal negligence is a purely objective offence, or a
mixed subjective/objective offence. Three justices held the standard to be purely
objective, while three concluded that there is a subjective component to consider,
holding that “…‘reckless disregard for the lives or safety of other persons’…read in
the context of Canadian criminal law jurisprudence, requires the Crown to prove
86
87
Ibid s 219.
(1989), 48 CCC (3d) 129.