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Criminal - Criminal Negligence. R. v. Tabanao
In R. v. Tabanao (Ont CA, 2023) the Court of Appeal considers basics of criminal negligence, both 'causing death' and 'bodily harm':[26] The actus reus for criminal negligence causing death or bodily harm requires the accused to have done or omitted to do anything that it was their legal duty to do, and that the act or omission caused someone’s death or bodily harm: Criminal Code, R.S.C. 1985, c. C-46, ss. 219(1), 220, and 221; R. v. Javanmardi, 2019 SCC 54, [2019] 4 S.C.R. 3, at paras. 19-21. The fault element requires that the criminal act or omission represented a marked and substantial departure from the conduct of a reasonably prudent person in circumstances where they either recognized and ran an obvious and serious risk to the public, or, alternatively, gave no thought to that risk: R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215, at para. 9; and Beatty, at para. 7.
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[42] The fault element of criminal negligence is assessed by the degree to which the accused’s conduct departed from that of a reasonable person in the circumstances. For some negligence-based offences, such as dangerous driving, a “marked” departure satisfies the fault element: J.F., at para. 10; Beatty, at para. 33; R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 30. For criminal negligence causing death, however, the requisite degree of fault is elevated to a “marked and substantial” departure: Javanmardi, at paras. 19-21.
[43] Both fault requirements ask whether the accused’s actions created a risk to others, and whether “a reasonable person would have foreseen the risk and taken steps to avoid it if possible”: Javanmardi, at para. 22; Roy, at para. 36. The distinction between the two standards is a matter of assessing the degree to which the conduct departs from that of a reasonable person: Javanmardi, at para. 21.
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