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Alan D. Gold (Contributor)

Halsbury's Laws of Canada - Criminal Offences and Defences (2012 Reissue)
IX. CRIMINAL NEGLIGENCE AND RECKLESSNESS

1. Criminal Negligence Generally

HCR-322 Criminal negligence.
HCR-322 Criminal negligence. It is an indictable offence to cause either death or bodily harm to another
person by criminal negligence.1 A person is criminally negligent when he or she shows wanton or reckless
disregard for the lives or safety of other persons while doing anything, or while not doing anything that it is
that person's duty to do. "Duty" in this context means a duty imposed by law.2 The conduct must constitute a
marked and substantial departure from what a reasonably prudent person would do under the
circumstances.3 The extent of criminal liability depends on the consequences of the negligent act or failure to
act.
"Criminal negligence" has been the subject of intense and somewhat opaque consideration by the courts.4
Criminal negligence does not require proof of intention or deliberation; indifference is sufficient.5 The offence
was more recently described in the context of failing to provide proper care to a child as requiring proof that
the same omission represented a marked and substantial departure from the conduct of a reasonably
prudent parent in circumstances where the accused either recognized and ran an obvious and serious risk to
the victim's life or gave no thought to that risk.6 It is an error to charge a jury that the offence requires
deliberateness or wilfulness.7 Such criminal negligence liability does not violate the Charter.8 On the other
hand, an honest though mistaken belief, for example, that a child does not need medical assistance,
negatives criminal negligence even though the child does in fact need assistance and the accused's belief
was not one a reasonable parent would have held.9
Commission and omission. There appears to be no distinction, as regards the requisite mens rea,
between criminal negligence founded upon acts of commission or omission.10 However, it has been
suggested there may be situations where a failure to act where there is a duty to do so will not fall below the
legal standard for criminal negligence, whereas actions that actually create a risk will do so.11
Legal duty. The requisite "duty imposed by law" may be a duty arising from statute or common law.12 A
parent is under a common law duty to protect a child from violence by the other parent and breach of that
duty can found liability for criminal negligence.13 The mere breach of a duty imposed by provincial statute
does not per se constitute criminal negligence.14 The legislation that governs the particular activity in which
the accused is engaged is relevant to consider.15
Causing death. Foreseeability of the risk of death is not required.16 Causation in the homicide context
requires that the accused's acts be a significant contributing cause to the death.17 The accused can be
convicted even though there was no physical contact between his vehicle and the deceased's, where he
raced with another car which in fact collided with the deceased's vehicle.18 "Person" should be interpreted to
mean the same as "human being" for the homicide provisions and does not include an unborn baby not yet
born alive and completely extruded from the mother.19 The culpability of the surviving driver for the death of
his opponent in a drag race poses issues of causation.20 Criminal negligence causing death is also a form of
culpable homicide.21
Bodily harm. This means any hurt or injury to a person that interferes with the health or comfort of the
person and that is more than merely transient or trifling in nature.22 Bruises have been held not to constitute
bodily harm;23 however, facial bruises and a laceration on the back of the complainant's head that required
10 days to heal were considered bodily harm.24 There is no necessary connection between the duration of
the injury and the question whether it is trifling. A life-threatening injury is often resolved in a short time.25

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Subjective factors. Outside the motor vehicle context, the main unsettled issue is whether proof of some
subjective blameworthy state of mind, described as advertence to the risk, is required. Non-culpable factors
affecting capacity to perceive and assess risk, such as mental retardation, must be considered by the trier of
fact in assessing liability.26 Age and immaturity are also relevant to the assessment of criminal negligence. In
assessing the conduct of a 16-year-old accused who pushed his playmate downstairs, the standard for
assessment is that of a reasonable sane and sober 16-year-old.27
Punishment. The maximum punishment for criminal negligence causing death is imprisonment for life.
Where a firearm is used in the commission of the offence, the minimum punishment is imprisonment for a
term of four years.28 This four-year minimum sentence does not violate the guarantee against grossly
disproportionate sentences under s. 12 of the Charter of Rights,29 but may be reduced by pre-trial custody
credit30 to a sentence imposed of less than four years.31 The mandatory requirement is satisfied so long as
the sentence imposed plus any pre-trial custody credit totals a punishment of at least four years. The
sentence over and above the pre-trial custody credit commences when imposed.
The maximum punishment for criminal negligence causing bodily harm is imprisonment for a term not
exceeding ten years.32
Footnote(s)
1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, ss. 220, 221.
2 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 219.
3 R. v. F. (J.), [2007] O.J. No. 2632, 2007 ONCA 500 (Ont. C.A.), vard [2008] S.C.J. No. 62 (S.C.C.).
4 R. v. Waite, [1989] S.C.J. No. 61, 48 C.C.C. (3d) 1 (S.C.C.); R. v. Tutton, [1985] O.J. No. 44, 18 C.C.C. (3d) 328 (Ont.
C.A.), affd [1989] S.C.J. No. 60, 69 C.R. (3d) 289 (S.C.C.). See also R. v. Sharp, [1984] O.J. No. 46, 12 C.C.C. (3d) 428
(Ont. C.A.); R. v. Nelson, [1990] O.J. No. 139, 54 C.C.C. (3d) 285 (Ont. C.A.); R. v. Cabral, [1990] O.J. No. 138, 54 C.C.C.
(3d) 317 (Ont. C.A.); R. v. Anderson, [1990] S.C.J. No. 14, 53 C.C.C. (3d) 481 (S.C.C.).
5 R. v. Sharp, [1984] O.J. No. 46, 12 C.C.C. (3d) 428, 39 C.R. (3d) 367 (Ont. C.A.).
6 R. v. F. (J.), [2008] S.C.J. No. 62 (S.C.C.).
7 R. v. Waite, [1989] S.C.J. No. 61, 48 C.C.C. (3d) 1 (S.C.C.) and R. v. Tutton, [1985] O.J. No. 44, 18 C.C.C. (3d) 328 (Ont.
C.A.), affd [1989] S.C.J. No. 60, 69 C.R. (3d) 289 (S.C.C.).
8 R. v. Nelson, [1990] O.J. No. 139, 54 C.C.C. (3d) 285 (Ont. C.A.).
9 R. v. Tutton, [1985] O.J. No. 44, 18 C.C.C. (3d) 328 (Ont. C.A.), affd [1989] S.C.J. No. 60, 69 C.R. (3d) 289 (S.C.C.).
10 R. v. Waite, [1989] S.C.J. No. 61, 48 C.C.C. (3d) 1 (S.C.C.) and R. v. Tutton, [1985] O.J. No. 44, 18 C.C.C. (3d) 328 (Ont.
C.A.), affd [1989] S.C.J. No. 60, 69 C.R. (3d) 289 (S.C.C.).
11 R. v. Canhoto, [1999] O.J. No. 4601, 140 C.C.C. (3d) 321 (Ont. C.A.).
12 R. v. Coyne, [1958] N.B.J. No. 11, 124 C.C.C. 176 (N.B.C.A.).
13 R. v. Popen, [1981] O.J. No. 921, 60 C.C.C. (2d) 232 (Ont. C.A.).
14 R. v. Titchner, [1961] O.J. No. 571, 35 C.R. 111 (Ont. C.A.); R. v. Leblanc, [1991] A.Q. no 282, 4 C.R. (4th) 98 (Que.
C.A.).
15 R. v. Leblanc, [1991] A.Q. no 282, 4 C.R. (4th) 98 (Que. C.A.).
16 R. v. Pinske, [1988] B.C.J. No. 1392, 6 M.V.R. (2d) 19 (B.C.C.A.), affd [1989] S.C.J. No. 106, [1989] 2 S.C.R. 979
(S.C.C.) (7:0).
17 R. v. Nette, [2001] S.C.J. No. 75, [2001] 3 S.C.R. 488 (S.C.C.).
18 R. v. Rotundo, [1993] O.J. No. 1836, 47 M.V.R. (2d) 90 (Ont. C.A.); R. v. Olivier, [2002] J.Q. no 1019 (Que. C.A.).
19 R. v. Sullivan, [1991] S.C.J. No. 20, 63 C.C.C. (3d) 97 (S.C.C.).
20 R. v. Menezes, [2002] O.J. No. 551 (Ont. S.C.J.).

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21 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 222(5)(b).

22 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 2.
23 R. v. Dupperon, [1984] S.J. No. 939, 16 C.C.C. (3d) 453 (Sask. C.A.).
24 R. v. Dixon, [1988] B.C.J. No. 774, 42 C.C.C. (3d) 318 (B.C.C.A.).
25 R. v. Dixon, [1988] B.C.J. No. 774, 42 C.C.C. (3d) 318, per Esson J.A. (B.C.C.A.).
26 R. v. Ubhi, [1994] B.C.J. No. 255, 27 C.R. (4th) 332 (B.C.C.A.).
27 R. v. Barron, [1985] O.J. No. 231, 23 C.C.C. (3d) 544 (Ont. C.A.).
28 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 220.
29 R. v. Lapierre, [1998] A.Q. no 91, 123 C.C.C. (3d) 332 (Que. C.A.); R. v. Roberts, [1998] N.B.J. No. 160, 125 C.C.C. (3d)
471 (N.B.C.A.).
30 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 719(3).
31 R. v. Wust, [2000] S.C.J. No. 19, [2000] 1 S.C.R. 455 (S.C.C.); R. v. Arrance, [2000] S.C.J. No. 21, [2000] 1 S.C.R. 488
(S.C.C.); R. v. Arthurs, [2000] S.C.J. No. 20, [2000] 1 S.C.R. 481 (S.C.C.); R. v. Morrisey, [2000] S.C.J. No. 39, [2000] 2
S.C.R. 90, 148 C.C.C. (3d) 1 (S.C.C.); R. v. McDonald, [1998] O.J. No. 2990, 127 C.C.C. (3d) 57, 17 C.R. (5th) 1 (Ont. C.A.).
32 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 221.