| Summary: | Canadian Criminal Law uses the standard of the reasonable person as an open textured definition
for the threshold of criminality if conduct is, per se, useful for society but becomes undesirable
when done in certain circumstances, without proper precautions. Indicating that the agent did not
intentionally cause harm, 'unreasonableness' tends to be found in the situative patterns of
accidents and mistakes, which are represented in my research paradigmatically by the offence of
manslaughter (ss.220,222 of the Canadian Criminal Code) and the defence of self-defence (s.34).
My thesis inquires into the concept of reasonableness, approaching the topic in four different
ways.
First, in a case study of current Canadian law the focus is on the leading cases of R.v.Creighton
and R.v.Lavallee. The effects of s.7 of the Canadian Charter of Rights and Freedoms are
considered. It is submitted that there are different tests to determine reasonableness in either case,
and a new theoretical foundation is offered which justifies the difference.
Second, doctrinal analysis explores whether the common law principle of 'mens red requires
reasonableness to be assessed on the basis of certain criteria. The dispute between objectivist and
subjectivist views whether the notion of fault requires 'awareness of risk' on part of the accused
leads to an inquiry into moral theory. Pursuing the search for criteria this philosophical aspect is
examined as well as its utilitarian counterpart, economic analysis.
The third approach critically assesses critically the cultural norms which fill out the reasonable
person's appearance. Referring to critical race- and feminist legal theory, the focus is on a multicultural society's postulations regarding the standard. An analysis of how the concept of
reasonableness can acknowledge cultural norms which are different from the decisionmaker's is
undertaken.
Fourth, in a comparative effort the patterns of unreasonably caused accidents and mistakes are
presented in the context of both the German legal system and George Fletcher's writing
'Rethinking Criminal Law'. Taking advantage of system theory, especially the concept of
'wrongdoing' as opposed to 'attribution', it is argued that a different assessment of the
consequences of unreasonable behavior is not justified, i.e. honest but unreasonable self-defence
leading to homicide should be punished as negligence but not as murder.
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