The test of any mens rea element is always based on an assessment of whether the accused had foresight of the prohibited consequences and desired to cause those consequences to occur. The three types of test are:
The most culpable mens rea elements will have both foresight and desire on a subjective basis. Negligence arises when, on a subjective test, an accused has not actually foreseen the potentially adverse consequences to the planned actions, and has gone ahead, exposing a particular individual or unknown victim to the risk of suffering injury or loss. The accused is a social danger because he or she has endangered the safety of others in circumstances where the reasonable person would have foreseen the injury and taken preventive measures. Hence, the test is hybrid.
The more contentious debate has surrounded the issue of whether the reasonable person should be subjectively matched to the accused in cases involving children, and persons with a physical or mental disability. Young and inexperienced individuals may very well not foresee what an adult might foresee, a blind person cannot see at all, and an autistic person may not relate to the world as a "normal" person. Cases involving infancy and mental disorders potentially invoke excuses to criminal liability because the accused lack of full capacity, and criminal systems provide an overlapping set of provisions which can either deal with such individuals outside the criminal justice system, or if a criminal trial is unavoidable, mitigate the extent of liability through the sentencing system following conviction. But those who have ordinary intellectual capacities are expected to act reasonably given their physical condition. Thus, a court would ask whether a blind reasonable person would have set out to do what the particular blind defendant did. People with physical disabilities rightly wish to be active members of the community but, if certain types of activity would endanger others, appropriate precautions must be put in place to ensure that the risks are reasonable.
"In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as ‘culpable’, ‘criminal’, ‘gross’, ‘wicked’, ‘clear’, ‘complete’. But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment."For a murder, the mens rea is that of malice aforethought, a premeditated and deliberate killing. But the larger percentage of deaths result from situations where there is either no intention to injure another, or only an intention to inflict less serious injury. The need is therefore to be able to distinguish between those who happened to be present when another died accidentally or through misadventure, and those who have contributed to the death in a way that makes them criminally rather than merely morally responsible. For example, suppose that A, an expert in kayaking, organises an outing for local children who are learning the sport. They travel to a large lake but, after an hour of paddling, they are overtaken by a violent storm and some of the children drown despite the fact that all are wearing life-preservers. If all the kayaks, paddles and ancillary equipment are shown to have been in good condition, the storm had not been forecast by the meteorological services, and it was reasonable for these children to undertake this type of outing given their level of skill, A will not have liability. But if many of the children were too inexperienced and a storm had been forecast, A might well be found liable by a jury.
$750K Fine for "Extreme" Criminal Negligence: "More Serious" Than OHSA Offences, Says Appeal Court in Metron Construction Fatality Case
Sep 12, 2013; A $200,000.00 fine was "manifestly unfit", the Ontario Court of Appeal has ruled, in raising Metron Construction's fine to...
Criminal Negligence: The Court of Appeal of Ontario Increases to $750 000 the Fine Imposed on Metron Construction Corp
Sep 16, 2013; On September 4, 2013, the Ontario Court of Appeal ordered Metron Construction Corporation ("Metron") to pay a fine in the amount...