Duty of Care

This page was last substantively updated or reviewed January 2014. (Rev. # 92488)

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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:

1. breach of duty towards explosives (80)
2. unsafe storage of a firearm (86)
3. criminal negligence (219)
4. dangerous operation of a motor vehicle (249)
5. failing to provide necessities of life (215)
6. duty to safeguard opening in ice (263(1))
7. 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."

See also s. 430(5.1) concerning breach of duty causing danger to life or mischief to property.

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.

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." The assessment, then, is of a "reasonably prudent person in the circumstances" the accused found himself when the events occurred.

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.

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.