Duty of Care: Difference between revisions
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[[Fr:Obligation_de_diligence]] | |||
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==General Principles== | ==General Principles== | ||
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# duty to safeguard excavation sites (263(2)) | # duty to safeguard excavation sites (263(2)) | ||
Further, there are special duties of care. Persons who take care or control "inherently dangerous materials" that may cause serious injury or death have a "special duty of care" | Further, there are special duties of care. Persons who take care or control "inherently dangerous materials" that may cause serious injury or death have a "special duty of care."<ref> | ||
{{CanLIIRP|Gosset|1fs0c|1993 CanLII 62 (SCC)|[1993] 3 SCR 76}}{{perSCC|McLachlin J}} | {{CanLIIRP|Gosset|1fs0c|1993 CanLII 62 (SCC)|[1993] 3 SCR 76}}{{perSCC-H|McLachlin J}} | ||
</ref> | </ref> | ||
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==Standard of Care== | ==Standard of Care== | ||
Any criminal duty of care requires a standard of care that includes, at a minimum, a "modified objective test" for ''mens rea''.<ref>see {{CanLIIRP|Hundal|1fs58|1993 CanLII 120 (SCC)|[1993] 1 SCR 867 | Any criminal duty of care requires a standard of care that includes, at a minimum, a "modified objective test" for ''mens rea''.<ref>see {{CanLIIRP|Hundal|1fs58|1993 CanLII 120 (SCC)|[1993] 1 SCR 867}}{{perSCC|Cory J}}{{atp|887}} (SCR)</ref> | ||
For any offence where the standard of care involves objectively dangerous conduct, the conduct must be shown to be a "marked departure" from 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" | For any offence where the standard of care involves objectively dangerous conduct, the conduct must be shown to be a "marked departure" from 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."<ref> | ||
{{ | {{CanLIIRP|Beatty|1vrp5|2008 SCC 5 (CanLII)|[2008] 1 SCR 49}}{{perSCC|Charron J}} </ref> | ||
The assessment, then, is of a "reasonably prudent person in the circumstances" the accused found himself when the events occurred.<ref> | The assessment, then, is of a "reasonably prudent person in the circumstances" the accused found himself when the events occurred.<ref> | ||
{{ibid1|Beatty}}{{atL|1vrp5|40}}</ref> | {{ibid1|Beatty}}{{atL|1vrp5|40}}</ref> | ||
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Thus, if the accused's 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.<ref> | Thus, if the accused's 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.<ref> | ||
{{CanLIIRP|Tayfel (M)|273wk|2009 MBCA 124 (CanLII)|250 CCC (3d) 219}}{{perMBCA|Hamilton JA}}{{atL|273wk|51}}</ref> | {{CanLIIRP|Tayfel (M)|273wk|2009 MBCA 124 (CanLII)|250 CCC (3d) 219}}{{perMBCA|Hamilton JA}}{{atL|273wk|51}}</ref> | ||
Proof of a marked departure does not require proof of what the accused actually had in their mind. Only that there was as failure to direct his mind to the risk that a reasonably prudent person would have appreciated.<Ref> | |||
{{CanLIIRP|Canhoto|1f9zj|1999 CanLII 3819 (ON CA)|140 CCC (3d) 321}}{{perONCA-H|Doherty JA}}<Br> | |||
{{CanLIIR|Fredericks|fw6h7|2013 NSPC 11 (CanLII)}}{{perNSPC|Tufts J}}{{AtL|fw6h7|70}} | |||
</ref> | |||
{{reflist|2}} | {{reflist|2}} | ||
Latest revision as of 07:06, 23 July 2024
| This page was last substantively updated or reviewed January 2014. (Rev. # 95735) |
- < Criminal Law
- < Proof of Elements
General Principles
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:
- breach of duty towards explosives (80)
- unsafe storage of a firearm (86)
- criminal negligence (219)
- dangerous operation of a motor vehicle (249)
- failing to provide necessities of life (215)
- duty to safeguard opening in ice (263(1))
- duty to safeguard excavation sites (263(2))
Further, there are special duties of care. Persons who take care or control "inherently dangerous materials" that may cause serious injury or death have a "special duty of care."[1]
See also s. 430(5.1) concerning breach of duty causing danger to life or mischief to property.
- ↑ R v Gosset, 1993 CanLII 62 (SCC), [1993] 3 SCR 76, per McLachlin J
Standard of Care
Any criminal duty of care requires a standard of care that includes, at a minimum, a "modified objective test" for mens rea.[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 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's 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]
Proof of a marked departure does not require proof of what the accused actually had in their mind. Only that there was as failure to direct his mind to the risk that a reasonably prudent person would have appreciated.[5]
- ↑ see R v Hundal, 1993 CanLII 120 (SCC), [1993] 1 SCR 867, per Cory J, at p. 887 (SCR)
- ↑ R v Beatty, 2008 SCC 5 (CanLII), [2008] 1 SCR 49, per Charron J
- ↑ Beatty, ibid., at para 40
- ↑ R v Tayfel (M), 2009 MBCA 124 (CanLII), 250 CCC (3d) 219, per Hamilton JA, at para 51
- ↑
R v Canhoto, 1999 CanLII 3819 (ON CA), 140 CCC (3d) 321, per Doherty JA
R v Fredericks, 2013 NSPC 11 (CanLII), per Tufts J, at para 70