Canadian Criminal Law/Duty of Care

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Much of the foundation of criminal law lies in the premise that the accused had a requisite "mens rea" (or guilty state of mind) when committing the offence. In principle a person should only be convicted of an offence for which they had some degree of awareness or intention when committing the criminal act. This is closely tied to the theory of moral culpability which is what criminal law is attempting to address and as such is constitutionally required under s. 7 of the Charter.

The criminal law generally does not include offences for which the accused was not subjectively aware to some degree of the offence. Further, there is no duty of precaution upon an individual to ensure that they do not perform the illegal act without their intent or knowledge. This is in contrast to regulatory offences and other forms of civil liability which generally require only an objective standard of responsibility. This is known as a "duty of care" and "standard of care". The duty of care is the legal obligation to maintain a certain standard. The standard of care is the specific standard of conduct that is imposed by law upon an individual which, if violated, could result in liability of some sort or another.

Duty of Care[edit]

Certain criminal offences create a duty of care, where, if the standard of care is violated, will result in a criminal act. The offences that impose a duty of care include:

  1. unsafe storage of a firearm (86)
  2. Criminal negligence (219)
  3. dangerous operation of a motor vehicle 249

Standard of Care[edit]

The modern foundation of duty of care in criminal law originated from the case of R v Hundal 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867. The case stated that to determine whether an act violated a standard of care requires a "modified objective test"[1]

For any offence where the standard of care involves objectively dangerous conduct, the conduct must be shown to be a "marked departure" from the the norm. Wherein a "reasonable person in the position of the accused would have been aware of the risk" and "would not have undertaken the activity".[2] The assessment, then, is of a "reasonably prudent person in the circumstances" the accused found himself when the events occurred.[3]

Thus, if the accused actions' show a marked departure from the standard of care described in the offence provision, he still cannot be convicted if a reasonably prudent person in the position of the accused would not have been aware of the risk or would not have been able to avoid the creating the risk.[4]

This standard was determined to be constitutionally acceptable.[5]

  1. see R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867, at page 887
  2. R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49
  3. R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49 at 40
  4. R. v. Tayfel (M.), 2009 MBCA 124 (CanLII), <> at 51
  5. Trilogy cases on Duty of care: R. v. Hundal 1993 CanLII 120, [1993] 1 S.C.R. 867
    R. v. DeSousa 1992 CanLII 80, [1992] 2 S.C.R. 944, 1992 SCC 77
    R. v. Tutton and Tutton, 1989 CanLII 103, [1989] 1 S.C.R. 1392