251:. The difference between recklessness and negligence is the difference between advertence and inadvertence; they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence. The common habit of lawyers to qualify the word "negligence" with some moral epithet such as "wicked", "gross", or "culpable" has been most unfortunate since it has inevitably led to great confusion of thought and of principle. It is equally misleading to speak of criminal negligence since this is merely to use an expression to explain itself.
29:
194:, which prohibited driving "on a highway without due care and attention or without reasonable consideration for other persons using the highway". The defendant challenged the law, claiming that it was beyond the power of the province because the federal government had "occupied the field" with a similar criminal provision in the
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In my opinion when
Parliament has expressed in an Act its decision that a certain kind or degree of negligence in the operation of a motor vehicle shall be punishable as a crime against the state it follows that it has decided that no less culpable kind or degree of negligence in such operation shall
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decision, on the constitutionality of overlapping federal and provincial laws. The Court held that there was no conflict between federal dangerous driving offences, which only prohibited "advertent" negligence and provincial careless driving offences, including "inadvertent" negligence. The analysis
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On the facts, Judson found that there was overlap between the laws however "there is no conflict between these provisions in the sense that they are repugnant". The provincial law extended to include "inadvertent negligence" as well as regular negligence. It was enough that "the two pieces of
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Judson held that "the power of a provincial legislature to enact legislation for the regulation of highway traffic is undoubted". He reaffirmed the principle that there exists a "general area" or "domain" of criminal law. Thus the two governments can make law on the same matter by creating a
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There is a fundamental difference between the subject-matter of these two pieces of legislation which the appellant's argument does not recognize. It is a difference in kind and not merely one of degree. This difference has been recognized and emphasized in the recent writings of
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A provincial enactment does not become a matter of criminal law merely because it consists of a prohibition and makes it an offence for failure to observe the prohibition. S. 55(1) of
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The issue before the Court was whether provincial laws relating to negligence with penal consequences would necessarily be a criminal law and thus encroach on federal jurisdiction.
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liability for harm thus caused by inadvertence. This has been laid down authoritatively for manslaughter again and again. There are only two states of mind which constitute
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be so punishable. By necessary implication the Act says not only what kinds or degrees of negligence shall be punishable but also what kinds or degrees shall not.
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Justices
Cartwright and Locke, in dissent, held that there is no possibility of overlapping domains. He stated that the leading case on the matter,
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The majority reasons were given by
Justice Judson, with Justices Kerwin, Taschereau, Fauteux, Abbott, Martland, and Ritchie concurring.
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on
Criminal Law, and by J.W.C. Turner. I adopt as part of my reasons Turner's statement of the difference to be found at p. 34 of
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has for its true object, purpose, nature or character the regulation of traffic on highways and is valid provincial legislation.
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APPEAL from a judgment of the Court of Appeal for
Manitoba, 30 WWR 156, dismissing an appeal from the judgment of Williams CJKB
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those within the federal government's powers are exclusive and comprehensive and do not allow for complementary law:
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legislation differed both in legislative purpose and legal and practical effect" to justify both of them.
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200:, which prohibited driving with "wanton or reckless disregard for the lives or safety of other persons."
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On the facts, he found that there was no difference between the provincial Act and the provision in the
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271:, cannot be read so broadly as to give the provinces unlimited powers over highways. Matters
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List of
Supreme Court of Canada cases (Richards Court through Fauteux Court)
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Judson J, joined by Kerwin CJ, Taschereau, Fauteux, Abbott, and
Martland JJ
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But it should now be recognized that at common law there is no
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which occupies a domain exclusive to the federal government.
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The defendant was charged under section 55(1) of
Manitoba's
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Provincial
Secretary of Prince Edward Island v. Egan
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Appeal dismissed, Locke and
Cartwright JJ dissenting
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353:. London: Stevens & Sons, Ltd. p. 82.
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220:distinction between the types of culpability:
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330:Criminal Code, SC 1953-54, c 51, s 221(1).
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375:Kenny's Outlines of criminal law
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178:used here is also known as the
164:Cartwright J, joined by Locke J
351:Criminal Law: The General Part
349:Glanville L. Williams (1953).
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412:Supreme Court of Canada cases
247:, and they are intention and
55:SCR 804, 1960 CanLII 70 (SCC)
407:Canadian federalism case law
16:Supreme Court of Canada case
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379:Cambridge University Press
373:J.W. Cecil Turner (1958).
417:1960 in Canadian case law
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45:Judgment: October 4, 1960
43:Hearing: May 16–17, 1960
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175:Supreme Court of Canada
83:The Highway Traffic Act
35:Supreme Court of Canada
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114:John Robert Cartwright
207:Decision of the Court
110:Charles Holland Locke
180:paramountcy doctrine
192:Highway Traffic Act
318:O'Grady v Sparling
261:Dissenting reasons
227:Glanville Williams
171:O'Grady v Sparling
22:O'Grady v Sparling
377:(17th ed.).
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106:Robert Taschereau
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122:Douglas Abbott
118:Gerald Fauteux
99:Patrick Kerwin
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339:SCC, p. 808
320:, SCR 804.
153:Concurrence
401:Categories
304:References
186:Background
387:474850752
156:Ritchie J
51:Citations
359:63481657
292:See also
244:mens rea
239:criminal
145:Majority
161:Dissent
76:Holding
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68:Ruling
231:Kenny
383:OCLC
355:OCLC
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