Criminal Law Notebook

Recklessness

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General Principles

In criminal law, all prohibited acts, at minimum, must be done "intentionally or recklessly, with full knowledge of the facts constituting the offence or with willful blindness towards them".[1]

Reckless requires a subjective standard such that the accused is "aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk."[2] That is, it is where the accused "sees the risk and ... takes the chance."[3]

It has been said to mean "careless" as to the consequences, heedless, or lacking in "prudence" or "caution".[4]

It is also greater than forgetfulness or absentmindedness.[5]

Thus, there are two elements, there must be (1) a consciousness of a risk or danger and (2) a choice to persist in the conduct that causes the risk. [6]

Recklessness assumes a knowledge of a likelihood of a prohibited consequences.[7]

Compared to Wilful Blindness
Recklessness is "something less than" wilful blindness.[8] Thus, reckless cannot satisfy an offence which requires knowledge as an essential element.[9]

In contrast to recklessness, wilful blindness requires that the accused become aware of a need for inquiry and deliberately declines to do so.[10]

Compared to Negligence
Recklessness should not be confused with negligence which is a purely objective standard.[11] Recklessness "must have an element of the subjective".[12]

  1. ↑ R v Sault Ste. Marie, [1978] 2 SCR 1299, 1978 CanLII 11 (SCC), per Dickson J
    UK: DPP v Morgan, [1976] AC 182, 61 Cr. App. R. 136, [1975] 2 All E.R. 347
  2. ↑ R v Sansregret 1985 CanLII 79 (SCC), (1985), 18 CCC (3d) 223 (SCC), per McIntyre J at pp. 233 and 235
  3. ↑ Sansregret at p. 235, 502
    R v Cooper, 1993 CanLII 147 (SCC), [1993] 1 SCR 146, per Cory J, at p. 155
  4. ↑ R v Dickson, 2006 BCCA 490 (CanLII), per Rowles JA, at para. 41
  5. ↑ Tatton, ibid. at para 20
  6. ↑ R v Vinokurov, 2001 ABCA 113 (CanLII), per Berger JA (2:1) at para 17
  7. ↑ Vinokurov, ibid. at para 18
  8. ↑ R v Sandhu, (1989), 50 CCC (3d) 492 (Ont. C.A.), 1989 CanLII 7102 (ON CA), per Finlayson JA at p. 497
  9. ↑ Sandhu, ibid. ("In my opinion, it is now clear on the authority of Sansregret ... and R v Zundel ... that where an offence requires knowledge on the part of the accused, it is improper to instruct the jury that a finding of recklessness satisfies that requirement.")
    see comparison described in Knowledge and Wilful Blindness
  10. ↑ Vinokurov, supra
  11. ↑ Sansregret, supra at pp. 233 and 235
    R v Tatton, 2014 ONCA 273 (CanLII), per Pardu JA, at para 20
  12. ↑ Sansregret, supra

In Reference to Requirements of Offences Being "Wilful"

In many instances in the Code, the language may require that the prohibited act be "wilful". In some circumstances that will connote a standard of recklessness.[1]

The Code addresses the meaning of "willful" in s. 429 as it applies Part XI [Wilful and Forbidden Acts in Respect of Certain Property] of the Code:

Wilfully causing event to occur
429 (1) Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, wilfully to have caused the occurrence of the event.

...
R.S., c. C-34, s. 386.


– CCC

  1. ↑ R v Berhe, 2011 ONSC 6815 (CanLII), per Code J at para 31

Offences with Identified Reckless Standards

Offences with a explicit reckless component of proof include:

Offences interpreted as including a standard of proof include:

See Also

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