Penal Negligence Case

Punishing the morally innocent is something our justice system usually refrains from doing. In order to be considered criminally responsible for a crime, mens rea and actus reus must coincide at a specific point in time. In the case of R v. A.D.H, the accused was charged with unlawfully abandoning a child under the age of ten years, in accordance with section 218 of the Criminal Code. I agree with the decision to acquit the accused, as the Crown failed to prove the mens rea beyond a reasonable doubt. The decision to acquit is correct because firstly, the highest court in Canada, the Supreme Court, which also creates precedents and case laws at the top-level decided to acquit her. Secondly, there was a minority opinion amongst the judges which
However, our justice system requires that the actus reus and mens rea coincide at a point in time, but the latter was not proven beyond a reasonable doubt. The defence stated that, A.D.H truly believed her child to be dead upon birth. The Crown argued that section 218 of the Criminal Code should be based on objective fault and penal negligence rather than subjective fault. Penal Negligence requires that the Crown prove two aspects, the fact that a reasonable person would have identified the risks their behaviour imposed on a child. The second aspect is that the accused acted on marked departure from what a reasonable person’s behaviour would be in that circumstance. Penal Negligence is the fault requirement needed for section 215 of the Criminal Code, which is the offence of, failing to provide a child with the necessities of
A minority opinion is when judges reach the same conclusion, but through different reasoning. Justice Richards, believed that Section 218 of the Criminal Code requires subjective fault. Rather than just interpreting the legislation word for word, the Justices decided to look into Parliament’s intentions for this piece of legislation. Justice Richards concurred with the trial judge’s determination that the words “abandon”, “expose” and “wilful” all connote subjective fault. Abandon and expose were said to denote awareness of the risk involved and wilful involves a mere failure to act in accordance with a minimum level of behaviour. The text used in this provision outlines that a subjective fault requirement is necessary in this instance. In order for the accused to be guilty, she would have to “persist in a course of conduct, knowing of the risk which it created” (paragraph 16, case brief). The accused however, truly was unaware that the baby was alive upon birth and as a result, could not be aware of any risk she was undertaking. Justice Ottenbreit found that Section 218 requires an objective fault standard, in which we analyze whether a reasonable person would’ve acted in the same manner. Ottenbreit found that an honest and reasonable mistake of fact could be used as a defence. Dr. Simpson testified that “[u]nder these circumstances of an unknown