The Case Of Esther Summerson And The Criminal Code Of Canada

When Esther Summerson ran over her husband Creakle, the accident occurred while driving. Accordingly, the issue at hand is whether her manner of driving was irresponsible making her culpable in the death of her husband. Therefore, a lack of mens rea if proven is the only defense that can show a lack of criminal culpability for Esther in the death of Creakle. Esther can be charged under S.249(4) “Dangerous operation causing death” of the Criminal Code of Canada (hereafter, the Criminal Code) if her manner of driving is considered dangerous to the public (Criminal Code, 1985). In Roy (2012), it was solidified that a charge under S.249(4) requires a marked departure from the expected standard of care (an error does not constitute a marked departure);

Keeping the facts of the case in mind the accused was aware of her husband’s tendencies towards acting angrily and impulsively, Creakle’s rage at Esther’s departure was further fueled by their prior argument. After she told him to “go away” the reasonable person would believe that if she could no longer see him he had taken heed to her advice. Knowing the nature of her husband Esther was cautious and double checked to confirm he had left, due to her restricted visibility she was unable to see him. In this situation, her actions did not fall below the expected standard of care as she was cautious towards the outcome and took steps to ensure Creakle’s safety. As was ruled in Beatty (2008) if a reasonable person holding the knowledge of the accused, could not have foreseen the consequences of their actions they are not morally blameworthy, and therefore lack the mens rea necessary for the criminal offence (Verdun-Jones, 2015, p.120) A lack of mens reas (moral blameworthiness) can also be proved due to a lack of intention and/or knowledge, recklessness, and willful blindness (Verdun-Jones, 2015, p.80) Esther did not intend to

She was also not reckless in her actions as stated in H. (A.D.) (2013) she did not “persist in the conduct despite knowing the risk” (Verdun-Jones, 2015, p.96). The second that Esther sensed that she had ran over something she stopped her car, in contrast, if she had continued moving her car she could have been held liable. Esther was also not willfully blind to the presence of Creakle; willful blindness is defined in Briscoe (2010) as being “deliberately ignorant” (Verdun-Jones, 2015, p.100). Esther’s caution before proceeding to move her truck implies that she was aware of the possibility that Creakle may have still been holding on, she only proceeded to move when she could no longer see him. A crime must also require an aspect of voluntariness for the act to be considered valid (Verdun-Jones, 2015, p. 48). In Martineau (1990) the Supreme Court ruled that S.7 of the Charter requires the “subjective foresight of the likelihood of death” as the minimum mens rea requirement for murder (Verdun-Jones, 2015, p.76). The case of Lucki (1955) solidified the fact that if a crime results from something that is outside of the hands of the accused they cannot be