Criminal Negligence in Canada: Charges, Penalties, and Defences

Criminal Negligence Causing Bodily Harm

Criminal negligence causing bodily harm occurs when the accused’s conduct results in injury to another person. Section 221 of the Criminal Code defines criminal negligence as a marked and substantial departure from the standard of care expected of a reasonable person in the same circumstances.  A failure to fulfil this duty in a manner that demonstrates a reckless disregard for human safety can lead to charges of criminal negligence causing bodily harm.

Criminal Negligence Causing Death

Criminal negligence causing death is a grave offence described in Section 220 of the Criminal Code. If an individual’s criminally negligent actions result in the death of another person, they may face an indictable offence charge. Under Section 222(5) of the Criminal Code, causing the death of another human being is classified as a homicide, which is further divided into:

• Culpable Homicide: A criminal offence that includes murder, manslaughter, or criminal negligence causing death.
• Non-Culpable Homicide: Deaths that are not considered criminal, such as those resulting from accidents.

To secure a conviction for culpable homicide caused by criminal negligence, the Crown must establish that the accused’s conduct was a significant contributing cause of the death.

Criminal Negligence and Driving Offences

Driving offences are a common context for criminal negligence charges. However,  it’s important to distinguish between distinct offences. Section 320.13 of the Criminal Code defines dangerous driving as operating a vehicle in a manner that is dangerous to the public, considering all the circumstances. This can include acts like excessive speeding, impaired driving, or other reckless behaviors.

However, criminal negligence in driving, covered under Sections 220 and 221, goes beyond simply driving dangerously. It requires proof that the driver’s conduct represented a marked departure from the standard of care expected of a reasonable person and showed wanton or reckless disregard for the lives and safety of others. This means they were aware of the risks but persisted in their actions anyway.

Driving offences resulting in serious injury or death due to negligence carry severe penalties.

The severity of these charges makes it crucial for accused individuals to seek experienced legal guidance to navigate the complexities of such cases effectively.

The Guilty Act

The actus reus refers to the physical act or omission that caused the victim’s death. The Crown must demonstrate three critical components:

1. Legal Duty: The accused had a legal duty of care, imposed by law. Such duties can arise in various situations, such as the duty of parents to provide the necessaries of life to their children (s. 215), the duty to drive safely (s. 249), or the duty to take precautions when undertaking acts that may endanger life (s. 216).
2. Failure to Fulfill Duty: The accused did not meet the required standard of care.
3. Causation: The failure to fulfil the duty directly caused the victim’s death.

Both factual causation (but for the accused’s actions, the death would not have occurred) and legal causation (the actions significantly contributed to the death) must be proven.

Mens Rea or the Guilty Mind

The mens rea involves the mental element of the offence, requiring a marked and substantial departure from the behaviour of a reasonable person under similar circumstances. The Crown must establish:

• Wanton or Reckless Disregard: As defined in Section 219 of the Criminal Code, the accused acted in a way that a reasonable person would recognize as creating a significant risk of harm or death. This includes situations where the accused deliberately ignores obvious safety warnings, disregards a known danger, or acts with extreme indifference to the potential consequences of their actions.
• Objective Assessment: The court uses the “reasonable person standard” to assess whether the accused’s actions departed significantly from what would be expected of a prudent individual. This means that the court will not consider the accused’s subjective intentions or beliefs, but rather what a reasonable person would have done in the same situation.

For criminal negligence causing death, the Crown must show that the accused’s conduct created an unacceptable level of risk, leading directly to the victim’s death.

Punishment for Criminal Negligence Causing Bodily Harm

Criminal negligence causing bodily harm is a straight indictable offence, meaning the Crown cannot proceed summarily. The maximum sentence for this offence is 10 years of imprisonment in a penitentiary.

Punishment for Criminal Negligence Causing Death

Criminal negligence causing death is among the most serious offences under the Criminal Code. It is punishable by a maximum sentence of life imprisonment. Unlike some other offences, individuals convicted of criminal negligence causing death are not eligible for conditional sentence orders, which allow a sentence to be served in the community nor discharges, which prevent a criminal record post-conviction.

Punishment for Criminal Negligence Caused by Dangerous Driving

Criminal negligence caused by dangerous driving carries specific penalties based on the harm caused and whether the Crown proceeds with the charge as a summary or indictable offence:

Causing Bodily Harm:

• Minimum penalties:
  • $1,000 fine for a first offence.
  • 30 days imprisonment for a second offence.
  • 120 days imprisonment for subsequent offences.
• Maximum penalties:
  • 2 years less a day for summary convictions.
  • 14 years imprisonment for indictable offences.

Causing Death:
Dangerous driving causing death is always treated as an indictable offence, carrying a maximum penalty of life imprisonment.

Factual Innocence

A defence based on factual innocence argues that the accused did not commit the alleged offence. This can include demonstrating that the accused was not present at the scene, that their actions or omissions did not amount to criminal negligence, or that the Crown has not proven the basic elements of the offence beyond a reasonable doubt. For example, the accused may present evidence such as alibi witnesses, surveillance footage, or expert testimony to support their claim of innocence. If the Crown cannot establish these elements, a conviction cannot be secured.

Foreseeability of Risk

A core component of criminal negligence is the foreseeability of risk. The defence may argue that a reasonable person in the accused’s position could not have foreseen their actions leading to death. If the risk was unforeseeable, the mens rea (guilty mind) cannot be established.

Marked and Substantial Departure

The Crown must show that the accused’s actions represented a marked and substantial departure from what a reasonable person would have done. The defence can challenge this by demonstrating that the accused’s conduct was consistent with reasonable behaviour under the circumstances and that the alleged actions do not meet the elevated threshold required to establish criminal negligence.

Factual and Legal Causation

The defence may contest causation by arguing that the victim’s death would have occurred regardless of the accused’s actions (factual causation) or that the accused’s actions were not a significant contributing factor to the death (legal causation). For instance, the defence may argue that a pre-existing medical condition caused the victim’s death, or that intervening events, such as the actions of another person, were the primary cause of death. If either form of causation cannot be proven beyond a reasonable doubt, the actus reus (guilty act) is not satisfied.

Charter Rights Defence

If the accused’s Charter rights were violated during the investigation or prosecution, the defence can seek to exclude evidence under Section 24(2) of the Charter of Rights and Freedoms. Common violations include unlawful searches or seizures and failures to inform the accused of their right to legal counsel. By excluding evidence obtained in breach of Charter rights, the defence can weaken the Crown’s case and potentially secure an acquittal.

Successfully defending against criminal negligence causing death charges requires experienced legal representation to assess the evidence, identify weaknesses in the Crown’s case, and advocate for a favourable outcome.