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A Tough Pill to Swallow 167
advertence or awareness of the risk that the prohibited consequences will come to
pass.” 88 The standard has been expanded upon in subsequent cases. In R v
Gingrich, 89 the Ontario Court of Appeal held that
The crime of criminal negligence is negligence. There is no need to import the concept of a
subjective intent in order to obtain a conviction. The crime is the well-recognized tort of
civil negligence; the sins of omission and commission that cause injury to one's neighbour,
elevated to a crime by their magnitude of wanton and reckless disregard for the lives and
safety of others. 90
An interesting analogy emerges from this case. Gingrich was charged and
convicted of criminal negligence involving deaths caused by a motor vehicle
accident. Gingrich was a truck driver and was scheduled to head home after a
delivery out of province. He was aware of the fact that his tractor-trailer’s brakes
were not working before he set out, and despite the ability for him to wait and
obtain a replacement part, and his knowledge of what might happen if he was to
lose control of his vehicle without his brakes, he set out on his return voyage. At
some point he lost control of the truck, the brakes did not work, and two people
died in the ensuing crash. If one can be convicted of criminal negligence for not
ensuring that one’s brakes were working while fully aware of the risk that it
entailed, perhaps one should also be so guilty of failing to ensure that one’s own
“mental brakes” are in working order, where one has the ability to do so It is not
so specious an analogy to think of anti-psychotic medicine as “brakes” which help
control an otherwise potentially unstable and dangerous person, in those cases
where the person has been informed that his instability is of a dangerous nature.
The Supreme Court of Canada more conclusively set the standard for
criminal negligence in R v Creighton. 91 The crown must prove that a reasonable
person in the context of the offence would have foreseen the risk of death (or
injury) created by his conduct. 92 The matter of what constitutes a “reasonable
person” is a significant concern here. What standard shall the person who
recklessly discontinues his medication be judged by The “reasonable ordinary
person with no underlying mental disorder”, or the “reasonable person with a
serious but successfully medicated mental disorder who suffers some side effects
of the medication” One could argue that the standard would be much lower in
the latter instance because it would take into account the frailties of the accused
suffering from his disorder. In actuality, the latter standard is not lower than the
former, as will be explained, so it really makes no difference which
characterization of a reasonable person is used, be it the “average mentally healthy
person” or the “average mentally disordered but medicated person”.
88
89
90
91
92
Ibid at para 12.
(1991), 65 CCC (3d) 188 (Ont CA).
Ibid at para 39.
[1993] 3 SCR 3 [Creighton].
Ibid at para 37.