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2010 Canliidocs 305 Decisions BEATTY, J.F., AND THE LAW OF MANSLAUGHTER 651 BEATTY, J.F., AND THE LAW OF MANSLAUGHTER LARRY C. WILSON* In this article, the author argues that the recent Dans cet article, l’auteur fait valoir que les récentes Supreme Court of Canada decisions in R. v. Beatty décisions de la Cour suprême du Canada, notamment and R. v. J.F. have clarified several of the issues that R. c. Beatty et R. c. J.F., ont clarifié plusieurs have plagued the increasingly complicated offence of questions qui tourmentent l’homicide involontaire manslaughter. In particular, the decisions address the coupable, infraction de plus en plus compliquée. Les redundancy among the many manslaughter provisions décisions abordent tout spécialement la redondance in the Criminal Code, the need to define a clear des nombreuses dispositions relatives à l’homicide separation between actus reus and mens rea, and the involontaire coupable du Code criminel, le besoin de need to establish distinct categories of objective fault préciser une séparation claire entre actus reus et mens for different types of manslaughter offences. The rea, et le besoin d’établir des catégories distinctes de author examines the legal background of these faute objective pour différents types d’homicides decisions as well as the current state of the law. He involontaires coupables. L’auteur examine le contexte concludes by identifying emerging issues relating to juridique de ces décisions ainsi que l’état actuel de la the offence of manslaughter, arguing that the law loi. Il termine en identifiant les enjeux émergents remains convoluted and in need of urgent reform relatifs à ce crime en faisant valoir que la loi demeure despite the progress made in the Beatty and J.F. alambiquée et qu’une réforme urgente s’impose 2010 CanLIIDocs 305 decisions. malgré les progrès faits dans Beatty et J.F. TABLE OF CONTENTS I. INTRODUCTION ............................................. 651 II. THE DEFINITION OF MANSLAUGHTER ........................... 652 III. THE ACTUS REUS OF MANSLAUGHTER ........................... 653 IV. THE MENS REA OF MANSLAUGHTER ............................. 663 V. CONCLUSION .............................................. 672 I. INTRODUCTION Two recent decisions of the Supreme Court of Canada have resolved a number of important issues regarding the offence of manslaughter. In Beatty,1 the Court examined the distinction between civil and penal negligence in the context of a charge of dangerous driving causing death. The majority of the Court, relying on its earlier decision in Hundal,2 determined that the fault element for this offence should be based on a modified objective test, namely that the conduct amounted to a “marked departure from the standard of care that a reasonable person would observe in … the circumstances” of the accused.3 In this case a “momentary lapse of attention,” while amounting to civil negligence, was insufficient to support a finding of a marked departure from the standard of care of a prudent driver.4 In J.F.,5 the focus was on different levels of fault for objective crimes within the Criminal Code.6 The accused was charged with manslaughter by criminal negligence and with manslaughter by failing to provide the necessaries of life in the death of his son. A jury * Professor, Faculty of Law, University of Windsor. 1 R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49 [Beatty]. 2 R. v. Hundal, [1993] 1 S.C.R. 867 [Hundal]. 3 Beatty, supra note 1 at para. 36 [emphasis in original]. 4 Ibid. at para. 51. 5 R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215 [J.F.]. 6 R.S.C. 1985, c. C-46. 652 ALBERTA LAW REVIEW (2010) 47:3 convicted the accused on the first count but acquitted on the second. The Court held that these verdicts were inconsistent in that the accused had been convicted and acquitted of what amounted to essentially the same offence. In their analysis, the majority indicated that the fault element for manslaughter by failure to provide necessaries was a “marked departure,” while the fault element for manslaughter by criminal negligence, described as a “more serious” offence, was a “marked and substantial” departure.7 Thus, the verdicts were incomprehensible as they signified “that a lesser degree of fault was not established, while a greater degree of fault was proven beyond a reasonable doubt.”8 In this article I will examine the background leading to these important decisions, provide a synopsis of the current state of the law of manslaughter in Canada, and identify some of the emerging issues that have yet to be resolved. I will also use this opportunity to join the chorus of those who argue that there is an urgent need for comprehensive reform of Canadian criminal law, particularly the law of homicide. II. THE DEFINITION OF MANSLAUGHTER Our Criminal Code provides that a person commits homicide when, “directly or indirectly, 2010 CanLIIDocs 305 by any means, he causes the death of a human being.”9 Of course this does not mean that there is criminal responsibility every time someone causes the death of another. Homicides are classified as “culpable or not culpable” and a “[h]omicide that is not culpable is not an offence.”10 There will only be criminal responsibility for culpable homicides. Many deaths, although caused by another, may be the result of accident or occur in circumstances where there is an absence of fault or the operation of an excuse or justification such as self-defence. The legislation further provides that “[c]ulpable homicide is murder or manslaughter or infanticide.”11 Thus, where an accused has “directly or indirectly … cause[d] the death of a human being,” and that death is found to be culpable, the offence must be “murder or manslaughter or infanticide.”12 If a culpable homicide does not fit the definition of murder or infanticide, it must be manslaughter: the Criminal Code specifically provides that “[c]ulpable homicide that is not murder or infanticide is manslaughter.”13 Murder is distinguished from manslaughter primarily on the basis of the required fault element: murder requires subjective foresight of death, while manslaughter does not.14 On a charge of murder, the Crown must prove that the accused intended to cause death, or intended to “cause … bodily harm that he [knew was] likely to cause … death.”15 Infanticide also requires proof of subjective fault, and is further distinguished from manslaughter by the precise requirements of the actus reus.16 On a charge of infanticide, the accused must be female and the victim must be a “newly-born child.”17 7 J.F., supra note 5 at paras. 4, 8-9. 8 Ibid. at para. 17. 9 Criminal Code, supra note 6, s. 222(1) [emphasis added]. 10 Ibid., ss. 222(2)-(3) [emphasis added]. 11 Ibid., s. 222(4) [emphasis added]. 12 Ibid., ss. 222(1), (4) [emphasis added]. 13 Ibid., s. 234. 14 R. v. Martineau, [1990] 2 S.C.R. 633. 15 Criminal Code, supra note 6, s. 229(a). 16 Ibid., s. 233. 17 Ibid. BEATTY, J.F., AND THE LAW OF MANSLAUGHTER 653 Section 222(5) of the Criminal Code states that a homicide will be a culpable homicide when an accused has caused “the death of a human being, (a) by means of an unlawful act; (b) by criminal negligence; (c) … by threats or fear of violence or by deception,” which causes the victim to bring about her own death; or “(d) by wilfully frightening [the victim], in the case of a child or sick person.”18 Thus, if an accused caused the death of a person through any of these alternate routes, and the conduct did not satisfy the actus reus or mens rea requirements of either murder or infanticide, in the absence of any other defences the conviction would be for manslaughter. Section 222(5) is found in the “Homicide” section of the Criminal Code. However, there are a large number of other offences not found in that section that hold an accused criminally responsible for causing the death of another human being. Arguably, these offences also fit the definition of manslaughter: they are homicides (defined as “directly or indirectly, by any means, … caus[ing] the death of a human being”), they are culpable, and they are neither murder nor infanticide.19 In this discussion I will include these offences in the definition of manslaughter. The best known example is the offence of causing death by criminal negligence (s. 220).20 The list also includes offences such as dangerous driving causing death (s. 294(4)) and impaired driving causing death (s. 255(3)).21 Some lesser known offences that 2010 CanLIIDocs 305 fit the definition include causing death through a breach of the duty to properly handle explosives (s. 80), neglecting to obtain assistance in childbirth leading to death (s. 242), using traps causing death (s. 247(5)), causing death while operating a motor vehicle in a dangerous manner and fleeing a police officer (s. 249.1(3)), causing death by criminal negligence (street racing) (s. 249.2), dangerous operation of a motor vehicle causing death while street racing (s. 249.4(4)), and failing to guard an opening in ice or excavation on land causing death (s. 263).22 In addition, a person can be convicted of manslaughter as a party (s. 21), and there is a specific offence of counselling or aiding suicide (s. 241), which would appear to be included in the phrase that defines manslaughter: “directly or indirectly, by any means … caus[ing] the death of a human being.”23 Where an accused is initially charged with murder, the operation of certain defences (intoxication, provocation, and mental disorder short of insanity) may entitle the accused to a conviction for manslaughter.24 Finally, an organization such as a corporation can be convicted of manslaughter.25 III.
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