The reasonable person in substantive Canadian Criminal Law

• Main Author: Mikus, Rudolf Alexander
• Language: English
• Published: 2009
• Online Access: http://hdl.handle.net/2429/3900

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.