IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Brown 2012 NSPC 64
Date: 20120709
Docket: 2354894
Registry: Amherst
Between:
Her Majesty the Queen
v.
Patrick Ronald David Brown
Judge: The Honourable Judge Paul B. Scovil
Heard: 5 April 2012 in Amherst, Nova Scotia
Written decision: 9 July 2012
Charge: THAT HE on or about the 26th day of August A.D. 2011 at, or near 501 Main Street, Parrsboro, Nova Scotia, did being at large on his recognizance entered into before a judge and being bound to comply with a condition of that recognizance, report in person every Friday between 9:00 a.m. and 4:00 p.m., starting on July 29, 2011, to the Parrsboro RCMP, without lawful excuse failed to comply with that condition by failing to report in person as required, contrary to section 145(3) of the Criminal Code.
Counsel: Mr. Bruce Baxter, for the crown
Mr. Jim O’Neil, for the defence
By the Court:
[1] Sometimes it is the most simple fact situation which causes the most difficult decision making for a court. This is one of those situations. Here the accused forgot to report in to a police office as required to do so by a recognizance. One would think that this scenario would have been long ago dealt with by the courts in a simple and direct manner. Anyone thinking this would be wrong. This matter requires us to enter the murky and confusing world of mens rea in hopes to arrive on the other side trying to understand how I make the determination that while the accused forgot to make a required call, he did not have the lack of mens rea to exonerate him from the charge before me.
[2] The facts in this matter as indicated above are very straightforward. Brown was charged that on the 26th day of August, 2011 he failed, without lawful excuse, to report in person to the Parrsboro detachment of the Royal Canadian Mounted Police each Friday between 9:00 a.m. and 4:00 p.m. as required by his release conditions on a recognizance. The accused testified that he had worked a twelve hour night shift at the blueberry processing plant, getting home at 7:00 a.m. He went straight to bed and did not wake up until 6:00 p.m. His evidence was he forgot all about having to check in at the Parrsboro detachment. Under cross examination, the accused was not sure who else was home that day, but he was living at his grandfather’s. He had no cell phone, and while he had access to phones at the plant where he worked, he simply forgot about checking in with the police. He therefore made no attempt to phone in. Nothing in the evidence showed that this non-reporting was as a result of anything but pure forgetfulness by the accused.
[3] The issue in this matter is very narrow. Can a court determine that this accused had the required mens rea to convict when the accused did not intentionally fail to appear when required, given that he failed to turn his mind to his obligations under his recognizance?
[4] Any first year law student is familiar with the simple explanation of mens rea in that a guilty act must be accompanied by a guilty mind in order for an accused to be convicted. This makes sense, and when attached to the fact scenario sometimes given to law students, we can see why. Say I place my ordinary black umbrella on top of the lockers in the student lounge and then a fellow student comes in later and places an identical umbrella beside it. I come back later and take the second umbrella thinking it was mine. I am physically guilty of taking my fellow student’s umbrella, but as I did not intend to take someone else’s property, I have no guilty mind. To convict you must have both a guilty act coupled with a guilty mind.
[5] A review of the law will show that the courts have spun mens rea into a web that includes full mens rea offences, strict liability offences where no proof of intent is needed to convict but allows an accused the defence of due diligence, and offences of absolute liability where guilt follows proof of the act itself. Add to that crimes of subjective, objective mens rea and objective foreseeability and you have an area of law that a battalion of lawyers would love to enter into complete with the accompanying billable hours.
[6] This area of law still remains unsettled with two distinct lines of cases existing which deal with the “I forgot” defence. One group holds that where a trial judge accepts that an accused honestly forgot either to appear as directed or some other aspect of a court order he must be acquitted. As the accused had no intention to disobey the order he therefore has provided the court with a lawful excuse. The other line of cases hold that simply forgetting a duty to the court does not provide a defence unless the accused can show honest and reasonable efforts made to recall the duty. An example would be where the court provided a paper with a return date that contained an administrative error of an incorrect date.
[7] The first line of authorities that provide for forgetfulness as defence include R. v. Bremmer [2006] A.J. No. 392 (Alta Prov. Ct.); R. v. Bender, 30 C.C.C. (2d) 496 (B.C.S.C.); R. v. Stuart, 58 C.C.C. (2d) 203 (B.C.S.C.); R. v. Neal, 67 C.C.C.(2d) 92 (Ont. Co. Ct.); R. v. Daoud (1988), 65 Sask. R. 308 (Sask Q.B.); R. v. Hutchinson [1994] A.J. No. 731 (Alta. Prov. Ct.); R. v. Legere. 95 C.C.C. (3d) 555(Ont. C.A.); R. v. Blazevic [1997] O.J. No. 1356 (Ont. S.C.); R. v. Hurlbert [2003] A.J. No. 624 (Alta. Prov. Ct.) and recently R. v. Eby [2007] A.J. No. 306 (Alta. Prov. Ct.). In Eby (supra), Judge Allen provides a thorough review of the jurisprudence of this matter. While the destination of the travels in this case differs from that decided by Judge Allen, the path is the same. I must add that Judge Allen included in this line of cases R. v. Manuel [2000] N.S.J. No. 27 (N.S.S.C.). Were I to hold that Manuel in fact follows this line of cases, I would be bound by that decision as a matter of stare decises. For reasons I will state later, I do not find that Manuel stands for the proposition that “I forgot” is a valid defence.
[8] The line of cases that reject the “I forgot” situation as a defence includes R. v. Preshaw, Lutz, LeBlanc, and Ball, 31 C.C.C. (2d) 456 (Ont. Prov. Ct.); R. v. Ludlow, 136 C.C.C. (3d) 460 (B.C.C.A.); R. v. Osmond [2006] N.S.J. No. 424 (N.S. Prov. Ct.) and R. v. Potts [2012] A.J. No. 331 (Alta. Prov. Ct.).
[9] Section 145(3) states:
Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance, and every person who is bound to comply with a direction under subsection 515(12) or 522(2.1) or an order under subsection 516(2), and who fails, without lawful excuse, the proof of which lies on them, to comply with the condition, direction or order is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
To convict the crown must prove that the accused failed to comply with a condition imposed upon him by a recognizance. The accused may then show a lawful excuse.
[10] Let me first begin by dealing with R. v. Manuel (supra). There Justice Goodfellow dealt with the issue of whether the term “without lawful excuse” amounts to a reverse onus provision that was constitutionally invalid. Justice Goodfellow of the Nova Scotia Supreme Court found that there were no constitutional difficulties with an offence carrying such language. The Court sent the matter back to trial to determine the issue as to whether such a “lawful excuse” existed such as to provide the accused a defence. It did not explicitly deal with the defence in these situations of “I forgot”. In this finding I am in company with the late Judge Embree in Osmond (supra).
[11] The question of forgetting as being such a lawful excuse lies in an examination of objective and subjective mens rea. This area was analysed in Eby (supra) at paragraphs 59 and 60:
Subjective mens rea relies upon what was in the mind of the accused at the time of the offence. In Canadian Criminal Law (2nd ed.), at pp. 123-24 Professor Stuart explained “subjective mens rea” the term in this fashion:
“What is vital is that this accused given his personality, situation and circumstances, actually intended, knew or foresaw the consequences and/or circumstance as the case may be. Whether he “could”, “ought” or “should” have foreseen or whether a reasonable person would have foreseen is not the relevant criterion of liability.
In trying to ascertain what was going on in the accused’s mind, as the subjective approach demands, the trier of fact may draw reasonable inferences from the accused’s actions or words at the time of his act or in the witness box. The accused may or may not be believed. To conclude that, considering all the evidence, the crown has proved beyond a reasonable doubt that the accused “must” have thought in the penalized way is no departure from the subjective substantive standard. Resort to an objective substantive standard would only occur if the reasoning became that the accused “must have realized it if he had thought about it”.
Objective mens rea is concerned with proof of what the accused should or ought to have known.
[12] The question has also been dealt with by description of objective foreseeability. In R. v. Vaillancourt [1987] 2 S.C.R. 636, a matter dealing with a murder charge, Justice Lamer commented on the concepts of mens rea set out in R. v. Sault Ste. Marie [1978] 2 S.C.R. 1299. He stated:
It may well be that, as a general rule, the principles of fundamental justice require proof of a subjective mens rea with respect to the prohibited act, in order to avoid punishing the “morally innocent”. It must be remembered, however, that Dickson J. was dealing with the mens rea to be presumed in the absence of an express legislative disposition, and not the mens rea to be required in all legislation providing for a restriction on the accused’s life, liberty or security of the person. In any event, this case involves criminal liability for the result of an intentional criminal act, and it is arguable that different considerations should apply to the mental element required with respect to that result. As I would prefer not to cast doubt on the validity of such provisions in this case, I will assume, but only for the purposes of this appeal, that something less than subjective foresight of the result may, sometimes, suffice for the imposition of criminal liability for causing that result through intentional criminal conduct.
We now know that subjective foreseeability is when a court must determine if a set of facts would be those in which an individual subjectively would realize the criminality of an event. On the other hand, objective foreseeability would exist where any individual should realize the foreseeability of an event. Such a situation would be dangerous driving causing death. In such a case it is not open to a person to say I never intended to go off the road and kill someone, when any objective observer would say if you drove in the manner that you did you are going to kill someone.
[13] The fact situation of dangerous driving was just the type of background in the matter of R. v. Hundal [1993] 1 S.C.R. 867 (S.C.C.). There Justice Cory, for the Supreme Court of Canada, held that a criminal conviction could occur in situations where there is negligence based on a marked departure from the standard of care of a reasonable person. Justice Cory wrote at page 882 as follows:
Depending on the provisions of the particular section and the context in which it appears, the constitutional requirement of mens rea may be satisfied in different ways. The offence can require proof of a positive state of mind such as intent, recklessness or wilful blindness. Alternatively, the mens rea or element of fault can be satisfied by proof of negligence whereby the conduct of the accused is measured on the basis of an objective standard without establishing the subjective mental state of the particular accused. In the appropriate context, negligence can be an acceptable basis of liability which meets the fault requirement of s. 7 of the Charter. See R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154. Thus, the intent required for a particular offence may be either subjective or objective.
A truly subjective test seeks to determine what was actually in the mind of the particular accused at the moment the offence is alleged to have been committed. In his very useful text, Professor Stuart puts it in this way in Canadian Criminal Law (2nd ed.), at pp. 123-24 and at p. 125:
What is vital is that this accused given his personality, situation and circumstances, actually intended, knew or foresaw the consequences and or/circumstance as the [page 883] case may be. Whether he “could”, “ought” or “should” have foreseen or whether a reasonable person would have foreseen is not the relevant criterion of liability.
...
In trying to ascertain what was going on in the accused’s mind, as the subjective approach demands, the trier of fact may draw reasonable inferences from the accused’s actions or words at the time of his act or in the witness box. The accused may or may not be believed. To conclude that, considering all the evidence, the crown has proved beyond a reasonable doubt that the accused “must” have thought in the penalized way is no departure from the subjective substantive standard. Resort to an objective substantive standard would only occur if the reasoning became that the accused “must have realized it if he had thought about it”. [Emphasis in original.]
On the other hand, the test for negligence is an objective one requiring a marked departure from the standard of care of a reasonable person. There is no need to establish the intention of the particular accused. The question to be answered under the objective test concerns what the accused “should” have known. The potential harshness of the objective standard may be lessened by the consideration of certain personal factors as well as the consideration of a defence of mistake of fact. See McIntyre J. and Lamer J., as he then was, in R. v. Tutton, [1989] 1 S.C.R. 1392, and R. v. Waite, [1989] 1 S.C.R. 1436. Nevertheless, there should be a clear distinction in the law between one who was aware (pure subjective intent) and one who should have taken care irrespective of awareness (pure objective intent).
[14] The objective nature of mens rea was again described by the Supreme Court of Canada in R. v. Creighton [1993] 3 S.C.R. 3 (S.C.C.), where Justice McLachlin wrote at paragraph 110:
By way of background, it may be useful to restate what I understand the jurisprudence to date to have established regarding crimes of negligence and the objective test. The mens rea of a criminal offence may be either subjective or objective, subject to the principle of fundamental justice that the moral fault of the offence must be proportionate to its gravity and penalty. Subjective mens rea requires that the accused have intended the consequences of his or her acts, or that knowing of the probable consequences of those acts, the accused have proceeded recklessly in the face of the risk. The requisite intent or knowledge may be inferred directly from what the accused said or says about his or her mental state, or indirectly from the act and its circumstances. Even in the latter case, however, it is concerned with “what was actually going on in the mind of this particular accused at the time in question”: L’Heureux-Dubé J. in R. v. Martineau, supra, at p. 655, quoting Stuart, Canadian Criminal Law (2nd ed. 1987), at p. 121.
Objective mens rea, on the other hand, is not concerned with what the accused intended or knew. Rather, the mental fault lies in failure to direct the mind to a risk which the reasonable person would have appreciated. Objective mens rea is not concerned with what was actually in the accused’s mind, but with what should have been there, had the accused proceeded reasonably.
[15] She went on to illuminate this with the following words:
This is not to say that the question of guilt is determined in a factual vacuum. While the legal duty of the accused is not particularized by his or her personal characteristics short of incapacity, it is particularized in application by the nature of the activity and the circumstances surrounding the accused’s failure to take the requisite care. As McIntyre J. pointed out in R. v. Tutton, [1989] 1 S.C.R. 1392, the answer to the question of whether the accused took reasonable care must be founded on a consideration of all the circumstances of the case. The question is what the reasonably prudent person would have done in all the circumstances. Thus a welder who lights a torch causing an explosion may be excused if he has made an enquiry and been given advice upon which he was reasonably entitled to rely, that there was no explosive gas in the area. The necessity of taking into account all of the circumstances in applying the objective test in offences of penal negligence was affirmed in R. v. Hundal, supra.
The matter may be looked at in this way. The legal standard of care is always the same – what a reasonable person would have done in all the circumstances. The de facto or applied standard of care, however, may vary with the activity in question and the circumstances in the particular case.
[16] It is a principle of fundamental justice that those who are morally innocent should not be found guilty of criminal offences. The courts, in applying an objective assessment of fault, must make allowances for the existence of reasonable doubt as to both the sufficiency of the accused to take precautions to avoid the creation of risk and the capacity of an accused to meet the standard of care of a reasonably prudent person in the circumstances. (see R. v. Finlay [1993] 3 S.C.R. 103 (S.C.C.))
[17] Here the accused was quite aware of his responsibility to report in to the police when required. He had obviously managed to do so at other points in time while he was under this obligation. While he may have slept through when he was to have reported in, he took no efforts to prevent this. People use alarm clocks daily to get up to make it to work on time. They have friends and family remind them of appointments and tasks. The market place is awash with cell phones and other electronic devices that have applications devoted to reminding us of daily obligations. None of that was attempted to be utilized by the accused. Any reasonable person would have had the foresight to take steps to insure that such a responsibility that the accused had would have been met. Given the above I therefore find the accused guilty of this offence.
PCJ