Creighton, an experienced drug user, administered cocaine to a willing woman who subsequently died. He refused to contact the authorities when she stopped breathing after taking the drug, but his friend eventually did. He was charged with manslaughter and manslaughter by criminal negligence.
- Is the mens rea required for manslaughter subjective or objective?
- If it is objective, how much weight should be given to the personal characteristics of the accused?
- Is the objective standard contrary to s. 7 of the Charter?
Appeal dismissed. he did not dismiss
Lamer gives the minority (5-4) decision. He states that there is no general constitutional principle that states that crimes need subjective mens rea. He says that only specific heinous crimes that carry with them a certain stigma require subjective mens rea. Although manslaughter involves the killing of a person, it does not involve intentional killing and therefore is not as stigmatic as murder. He says that the Charter requires a minimum of objective mens rea. He also goes on to say that the test for manslaughter is an objective test; however, a mere objective test would violate s. 7 – therefore it needs to be a modified objective test that takes the specific circumstances of the individual into considerable note. He says that you must consider the capacities of the individual in determining whether they ere able to live up to the objective reasonable standard, and then alter the standard accordingly if they were not.
La Forest states that he prefers a subjective test for mens rea in manslaughter, but realizes that this is not going to be accepted and sides with McLachlin over Lamer.
McLachlin agrees that the test is objective, and that only objective mens rea is required for manslaughter. However, she disagrees with the alterations to the objective standard that Lamer attempts to make. She finds that the common law requirement of "objective foreseeability of the risk of bodily harm" is constitutional. Lamer disagreed and stated that you needed to have objective foreseeability of harm causing death – for him foreseeability of simply bodily harm is unconstitutional. According to McLachlin, to do this would require the courts to abandon the thin skull test and require the Crown too prove to much in order to get a conviction for manslaughter. She states that manslaughter is treated to be much less blameworthy than murder, and that this must be considered.
McLachlin completely disagrees with Lamer's additions to the objective test, and states that they essentially make it a subjective test. She says that the reasonable standard should not be concerned with "frailties" of the accused's character, and that public policy demands a single, uniform legal standard to be identified. The standard is what a reasonable prudent person would have understood in the circumstances – therefore situations of greater danger will require a greater expertise in the standard of care. In the end she sets out a three-part test that must be satisfied for a conviction in manslaughter:
- Establish actus reus – the activity must constitute a marked departure of the care of a reasonable person in the circumstances.
- Establish mens rea – the activity must have been done while there was objective foresight of harm (not death) that can be inferred from the facts. The standard is of the reasonable person in the circumstances of the accused.
- Establish capacity – given the personal characteristics of the accused, were they capable of appreciating the risk of harm flowing from their conduct?
- Objective mens rea is in line with the Charter, and is all that is required for a conviction in manslaughter.
- The objective standard is whether a reasonable person in the circumstances would have foreseen the risk of harm from their actions. If this is satisfied, then the necessary mens rea has been proven. You should not incorporate personal characteristics into the reasonable standard, as it has to be an unchanging standard that is easy to understand. Only if an accused lacked the capacity to understand the risk flowing from their actions can they be excused.