C (experienced drug user) got cocaine. With consent injected X. X died from injection
Does the common law definition of unlawful act manslaughter contravene s.7 of the Charter?
The Standard for manslaughter is: Objective foresight of non-trivial bodily harm – use a modified objective standard, where you place reasonable person in the circumstance of the accused (not taking into account personal characteristics, but do take into account capacity issues).
**The offence of unlawful act manslaughter requires objective foreseeability of bodily harm which is neither trivial nor transitory, arising from a dangerous act
CC defines 3 general types of culpably homicide:
**Murder – the intentional killing of another human being
**Infanticide – the intentional killing of a child
**All other – manslaughter falls into this category
The test for MR of unlawful act manslaughter is objective foreseeability of risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act – foreseeability of the risk of death is not required.
**The fact that the MR of manslaughter requires foreseeable risk of harm rather than foreseeable risk of death does not violate the principles of fundamental justice.
The appropriate test for MR is an objective test, with only one exception, incapacity to appreciate the nature of the risk
**Personal characteristics should not be admissible
**Beyond the exception the test should not be individualized
*Murder is distinguished from manslaughter only by the mental elements with respect to the death
*The Objective test
**Trier of fact must pay attention to any human frailties which might have rendered the accused incapable of having foreseen what the reasonable person would have foreseen
**Would a reasonable person in the same circumstances have been aware that the likely consequences of his or her unlawful conduct would create the risk of death?
***If No – accused acquitted, if Yes then ask:
****Were there unaware bc they were willfully blind or lacked capacity?
Murder = subjective
Manslaughter = objective
Test for Manslaughter
1. Is AR established? – negligence (as ex) must constitute a marked departure from the standards of a reasonable person
2. Is the MR established? – inferred from facts – is objective foresight
**a. Standard is that of a reasonable person in the circumstance of the accused
***i. May be negated by evidence as to lack of capacity
****1.If have the capacity and 1 and 2 are yes = conviction