Gross Negligence and Criminal Culpability
![handle is hein.journals/utlj47 and id is 505 raw text is: GROSS NEGLIGENCE AND
CRIMINAL CULPABILITYt
I will be examining the concept of, and the legitimacy of using, gross
(or criminal) negligence as a standard of criminal culpability.1 When
two conceptions of the concept have been properly distinguished, I
shall suggest that the two conceptions of gross negligence may quite
properly be given contrasting, but nonetheless quite wide-ranging, roles
as forms of mens rea. This will be a controversial proposal. When crimes
involve actions that are mala in se,2 it has been thought by many
distinguished judges and commentators that the stigma attaching to
conviction makes it wrong to convict defendants who did not advert to
the wrongfulness of their conduct (the thought being that it should not
be possible to 'blunder into' morally tainted criminal wrongdoing);'
and a defendant may be found to have been grossly negligent whether
or not he or she adverted to the wrongfulness of his or her conduct. It
was not always thus. As we shall see, in the nineteenth century, a
number of distinguished judges were quite happy to employ the gross
negligence standard, in part because they did not draw the sharp
distinctions between objective and subjective forms of mens rea that
modern commentators insist on when evaluating the appropriateness of
different forms as mens rea standards.
* Porjes Foundation Fellow, Worcester College, Oxford University
t An early draft of this article was first presented as a paper at the conference on
'Objectivity and Reasonableness,' organized by Professor Dennis Klimchuk, Depart-
ment of Philosophy, University of Western Ontario, in the Spring of 1997. I am very
grateful to Professor Klimchuk and to all the participants at that conference for
their comments on and criticisms of the early draft, which is much changed in
consequence. Thanks are also due to the Journal's anonymous referee, to
Nicola Lacey and to John Gardner, King's College, London, England, for their
suggestions in relation to later drafts.
1 The English term is 'gross' negligence, whereas the Canadian term is 'criminal'
negligence: see Canadian Criminal Code s.219. For reasons that will become clear,
I shall use the English term by preference.
2 I shall not be concerned in this article with the use of simple negligence in
criminalizing conduct that amounts to mala ffohibita (as opposed to mala in se), as in
regulatory offences, where no stigma attaches to conviction in virtue of the wrong at
stake.
3 For discussion of the arguments against, see J.C. Smith & B. Hogan, Criminal Law,
8th ed. (London: Butterworths, 1996) at 94-100 [hereinafter Criminal Law];
D. Stuart, Canadian Criminal Law, 2d.ed. (Toronto: Carswell, 1987), at 183-203.
(1997), 47 UNIVERSITY OF TORONTO LAW JOURNAL 495
Jeremy Horder*](ViewImageLocal?handle=hein.journals/utlj47&div=26&collection=&method=preview&ext=.png&size=3)
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Gross Negligence and Criminal Culpability
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