Criminal Negligence (Offence)

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Criminal Negligence
s. 219, 220, 221, 249.2 and 249.3 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Judicial Release Only
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))*
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum 4 years incarceration
Maximum 10 years incarceration or Life
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to criminal negligence are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Although criminal negligence is a broadly defined offence, in practice, most charges of criminal negligence relate to the accused's operation of a motor vehicle.

Pleadings
Offences under s. 219, 220, 221, 249.2 and 249.3 are straight indictable. There is a Defence election of Court under s. 536(2).

Release

Offence(s) Attendance Notice
Without Arrest

s. 496
Summons
Without Arrest
s. 497
Release By
Arresting Officer
On Attendance Notice
s. 497
Release By
Officer-in-Charge
On a Promise to Appear
Undertaking or Recognizance
s. 498
Release By
a Judge or Justice
on a PTA, Undertaking or Recog.

s. 515
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 219, 220, 221, 249.2 and 249.3 X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 219, 220, 221, 249.2 and 249.3, the accused cannot be released by police under s. 497 or 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by an order of a judge or justice pursuant to s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an attendance notice or a summons without a s. 496 arrest, and if arrested, can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The youth can also be released by an order of a judge or justice under s. 515.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

A peace officer who charges a person under s. 219, 220, 221, 249.2 and 249.3 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Ban
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Criminal negligence
219. (1) Every one is criminally negligent who

(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.
Definition of “duty”
(2) For the purposes of this section, “duty” means a duty imposed by law.
R.S., c. C-34, s. 202.


CCC

Causing death by criminal negligence
220. Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.

R.S., 1985, c. C-46, s. 220; 1995, c. 39, s. 141.


CCC

Causing bodily harm by criminal negligence
221. Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
R.S., c. C-34, s. 204.


CCC

Causing death by criminal negligence (street racing)
249.2 Everyone who by criminal negligence causes death to another person while street racing is guilty of an indictable offence and liable to imprisonment for life.
2006, c. 14, s. 2.
Causing bodily harm by criminal negligence (street racing)
249.3 Everyone who by criminal negligence causes bodily harm to another person while street racing is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
2006, c. 14, s. 2.


CCC

Proof of the Offence

Proving criminal negligence under s. 219 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit had a legal duty;
  5. the conduct showed "wanton or reckless disregard for the lives or safety of others"
    1. the conduct showed a "marked and substantial departure" form the conduct of a reasonably prudent

Proving criminal negligence causing death under s. 220 should include:

  1. elements of s. 219; and
  2. the alleged act caused the death of another person.

Proving criminal negligence causing bodily harm under s. 221 should include:

  1. elements of s. 219;
  2. another person suffered bodily harm
  3. the alleged act caused the harm
  1. R v Wudrich, 2013 SKQB 35 (CanLII) at para 11, 16

Interpretation of the Offence

A person who signals the start of a race by dropping a “flag” is a party to the race and can be found guilty of criminal negligence.[1]

  1. R v M.R., 2011 ONCA 190 (CanLII)

Legal Duties

For the purpose of s. 219, a "duty" refers to "a duty imposed by law."[1]

Legal duties exist in common law and statute.[2]

  1. S. 219(2)
  2. R v Coyne (1958), 124 CCC 176, 31 C.R. 335(*no link) at pp. 179-80 CCC per Ritchie JA
    see also R v Thornton (C.A.), 1991 CanLII 7212 (ON CA)

Parental Duties

Under s. 215 every person has a duty:

Duty of persons to provide necessaries
215. (1) Every one is under a legal duty

(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;
(b) to provide necessaries of life to their spouse or common-law partner; and
(c) to provide necessaries of life to a person under his charge if that person
(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and
(ii) is unable to provide himself with necessaries of life.


...
R.S., 1985, c. C-46, s. 215; 1991, c. 43, s. 9; 2000, c. 12, ss. 93, 95; 2005, c. 32, s. 11.


CCC

There is further a common law duty "to take reasonable steps to protect his or her child from illegal violence used by the other parent or by a third person towards the child which the parent foresees or ought to foresee".[1]

For more details see Failing to Provide the Necessities of Life (Offence).

Legal duties include the duty of foster parents to provide children in their car with the necessities of life.[2]

  1. R. v Popen (1981), 60 CCC (2d) 232(*no link) at p. 240 (CCC) per Martin JA
    R v Thornton (C.A.), 1991 CanLII 7212 (ON CA)
  2. R v J.F., 2007 ONCA 500 (CanLII), 222 CCC (3d) 474, at paras 50‑51, aff’d on appeal

Other Duties

Duty of persons undertaking acts dangerous to life
216. Every one who undertakes to administer surgical or medical treatment to another person or to do any other lawful act that may endanger the life of another person is, except in cases of necessity, under a legal duty to have and to use reasonable knowledge, skill and care in so doing.
R.S., c. C-34, s. 198.
Duty of persons undertaking acts
217. Every one who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life.
R.S., c. C-34, s. 199.
Duty of persons directing work
217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.
2003, c. 21, s. 3.


CCC

Similar to s. 216 to 217.1, s. 45 also provides exemption for liability for surgical procedures. [1]

Mens Rea

The mens rea can be proven with evidence of the accused subjective state of mind or by showing that the prohibited conduct "constituted a marked and substantial departure from the conduct of a reasonably prudent person".[1]

  1. R v Kerr, 2013 BCCA 506 (CanLII) at para 25

Alternate Charges

662
...
Conviction for dangerous driving where manslaughter charged
(5) For greater certainty, where a count charges an offence under section 220, 221 or 236 arising out of the operation of a motor vehicle or the navigation or operation of a vessel or aircraft, and the evidence does not prove such offence but does prove an offence under section 249 or subsection 249.1(3), the accused may be convicted of an offence under section 249 or subsection 249.1(3), as the case may be.
...
R.S., 1985, c. C-46, s. 662; R.S., 1985, c. 27 (1st Supp.), s. 134; 2000, c. 2, s. 3; 2008, c. 6, s. 38.


Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
s. 221 N/A 10 years custody
s. 249.3 N/A 14 years custody
s. 220(a) or (b) and 249.2 N/A life in custody

Offences under s. 220(a) or (b), 221, 249.2 and 249.3 are straight indictable. The maximum penalty is 10 years incarceration under s. 221, 14 years incarceration under s. 249.3, or life under s. 220(a), (b) and 249.2.

Minimum Penalties
For offences under s. 220(a) there is a mandatory minimum penalty of 4 years incarceration.

These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 220(a) N/A X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 221 N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 220(b), 249.2 and 249.3 N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 220(a) have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

For offences under s. 221, all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

If convicted under s. 220(b), 249.2 and 249.3 a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".

Offences under s. 220(b), 249.2 and 249.3 are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Criminal Negligence (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 220(a), (b) or 221
Delayed Parole Order s. 220 or 221
  • Periods of imprisonment of 2 years or more for convictions under s. 220 or 221 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

See Also