R. v. DeSousa
Encyclopedia
R. v. DeSousa [1992] 2 S.C.R. 944, is the Supreme Court of Canada
case where the Court determined the Constitutionally required level for mens rea
for the charge of "unlawfully causing bodily harm". The case is one of a series of cases including R. v. Hundal
and R. v. Creighton
where the Court reduced the requirement for culpability for a number of crimes.
on December 31, 1987, a fight broke out. Several people started throwing bottles including Joao DeSousa who threw a bottle that ricocheted off the wall and hit Teresa Santos in the forearm causing serious harm.
DeSousa was charged with unlawfully causing bodily harm contrary to s.269 of the Criminal Code of Canada
.
The issue before the Court was whether s.269 of the Criminal Code violated the s.7 of the Charter
as it potentially allowed for prison sentences for "Absolute Liability" offences (which was deemed unconstitutional in Re B.C. Motor Vehicle Act
).
The charge itself is broken down into two separate requirements. First, there must be an underlying offence (the "unlawful act") with a valid mens rea
requirement. This includes provincial and federal offences, criminal or otherwise, but precludes any absolute liability
offences. Secondly, the "unlawful act" must be at least "objectively dangerous" so that a reasonable person
would realize that the act created a risk of bodily harm. Due to the lack of stigma or any sort of significant prison sentence attached to the offence it did not warrant a higher "subjective fault" requirement (R. v. Martineau
).
The Court dismissed the argument that the offence would punish the morally innocent by not requiring proof of intention to bring about the consequences. Instead the offence aims to prevent objectively dangerous acts (this justification was elaborated on in R. v. Creighton).
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
case where the Court determined the Constitutionally required level for mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
for the charge of "unlawfully causing bodily harm". The case is one of a series of cases including R. v. Hundal
R. v. Hundal
R. v. Hundal [1993] 1 S.C.R. 867, is one of several landmark Supreme Court of Canada cases where the court showed its first signs of moving away from the strict requirement for subjectively proven mens rea in criminal offences.- Background :...
and R. v. Creighton
R. v. Creighton
R. v. Creighton, [1993] 3 S.C.R. 3 is a landmark case from the Supreme Court of Canada where the Court found that the standard for criminal liability for some offences can be lowered and not offend the Charter. This case marked the last in series of cases, beginning with R. v...
where the Court reduced the requirement for culpability for a number of crimes.
Background
Shortly before midnight, during a New Year party in TorontoToronto
Toronto is the provincial capital of Ontario and the largest city in Canada. It is located in Southern Ontario on the northwestern shore of Lake Ontario. A relatively modern city, Toronto's history dates back to the late-18th century, when its land was first purchased by the British monarchy from...
on December 31, 1987, a fight broke out. Several people started throwing bottles including Joao DeSousa who threw a bottle that ricocheted off the wall and hit Teresa Santos in the forearm causing serious harm.
DeSousa was charged with unlawfully causing bodily harm contrary to s.269 of the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
.
The issue before the Court was whether s.269 of the Criminal Code violated the s.7 of the Charter
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
as it potentially allowed for prison sentences for "Absolute Liability" offences (which was deemed unconstitutional in Re B.C. Motor Vehicle Act
Re B.C. Motor Vehicle Act
Reference re Section 94 of the Motor Vehicle Act, [1985] 2 S.C.R. 486 was a landmark reference submitted to the Supreme Court of Canada regarding the constitutionality of the British Columbia Motor Vehicle Act...
).
Ruling
Justice Sopinka, writing for the Court, held that s.269 did not violate s.7.The charge itself is broken down into two separate requirements. First, there must be an underlying offence (the "unlawful act") with a valid mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
requirement. This includes provincial and federal offences, criminal or otherwise, but precludes any absolute liability
Absolute liability
Absolute liability is a standard of legal liability found in tort and criminal law of various legal jurisdictions.To be convicted of an ordinary crime, in certain jurisdictions, a person must not only have committed a criminal action, but also have had a deliberate intention or guilty mind...
offences. Secondly, the "unlawful act" must be at least "objectively dangerous" so that a reasonable person
Reasonable person
The reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...
would realize that the act created a risk of bodily harm. Due to the lack of stigma or any sort of significant prison sentence attached to the offence it did not warrant a higher "subjective fault" requirement (R. v. Martineau
R. v. Martineau
R. v. Martineau [1990] 2 S.C.R. 633 is a leading Supreme Court of Canada case on the mens rea requirement for murder.- Background :One evening in February 1985, Patrick Tremblay and 15 year-old Mr. Martineau set out to rob a trailer owned by the McLean family in Valleyview, Alberta. Martineau was...
).
The Court dismissed the argument that the offence would punish the morally innocent by not requiring proof of intention to bring about the consequences. Instead the offence aims to prevent objectively dangerous acts (this justification was elaborated on in R. v. Creighton).