Recklessness
| This page was last substantively updated or reviewed January 2019. (Rev. # 95593) |
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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]
- ↑
R v Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 SCR 1299, per Dickson J
DPP v Morgan , [1976] AC 182, 61 Cr. App. R. 136, [1975] 2 All E.R. 347 (UK)
- ↑ R v Sansregret, 1985 CanLII 79 (SCC), 18 CCC (3d) 223, per McIntyre J at pp. 233 and 235
- ↑
Sansregret, ibid., at pp. 235, 502
R v Cooper, 1993 CanLII 147 (SCC), 78 CCC (3d) 289, per Cory J, at p. 155 - ↑
R v Dickson, 2006 BCCA 490 (CanLII), 213 CCC (3d) 474, per Rowles JA, at para 41
- ↑
R v Tatton, 2014 ONCA 273 (CanLII), 10 CR (7th) 108, per Pardu JA, at para 20
- ↑ R v Vinokurov, 2001 ABCA 113 (CanLII), 156 CCC (3d) 300, per Berger JA (2:1) , at para 17
- ↑ Vinokurov, ibid., at para 18
- ↑ R v Sandhu, 1989 CanLII 7102 (ON CA), 50 CCC (3d) 492, per Finlayson JA, at p. 497
- ↑
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 - ↑ Vinokurov, supra
- ↑
Sansregret, supra at pp. 233 and 235
Tatton, supra, at para 20
- ↑ 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 [Pt. XI – Wilful and Forbidden Acts in Respect of Certain Property (ss. 428 to 447.1)], wilfully to have caused the occurrence of the event.
[omitted (2) and (3)]
R.S., c. C-34, s. 386; 2018, c. 29, s. 51.
[annotation(s) added]
- ↑
R v Berhe, 2011 ONSC 6815 (CanLII), OJ No 5142, per Code J, at para 31
Offences with Identified Reckless Standards
Offences with a explicit reckless component of proof include:
- Criminal Negligence (s. 219):
- Second degree murder (s. 229): in relation to consequence of prohibited act
- Failure to Stop or Remain at Scene of Accident Where there is Bodily Harm (s. 252(1.3))
- recklessly discharging a firearm (244.2)
- Criminal Harassment (Offence) (s. 264)
- Break and Enter (Offence) (s. 348.1): only in relation aggravating sentencing factors regarding knowledge of occupancy
- Use, trafficking or possession of forged document (s. 368)
- trafficking in identity information (s. 402.2)
- Arson with Disregard for Life (s. 433)
- Arson, damage to property (s. 434)
Offences interpreted as including a standard of proof include:
- Mischief (Offence) (s. 430): inferred from word "wilful"
- Indecent Act (Offence) (173(1)): in relation to the age of the victim, inferred from word "wilful"
- Conspiracy (Offence): in limited circumstances
- Breach of Undertaking, Recognizance, or Probation (Offence)
- Impaired Driving, Over 80 and Refusal (Offence)
- Sexual Exploitation (Offence)
- Fraud (Offence) (s. 380)
- Assault with a Weapon or Causing Bodily Harm (Offence)
- Possession of a Restricted or Prohibited Firearm (Offence)
- Use of Firearm in Commission of an Offence (Offence)
- Failure to Attend Court or Appear (Offence)
- Sexual Exploitation (Offence)