R. v. Finlay [1993] 3 S.C.R. 103: -- Criminal Code prohibiting storing of firearms or ammunition "in a careless manner" -- Whether offence satisfies minimum fault requirements

Present: Lamer C.J. and L'Heureux-Dubé, Sopinka, Cory and McLachlin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN

Constitutional law -- Charter of Rights -- Fundamental justice -- Mens rea -- Criminal Code prohibiting storing of firearms or ammunition "in a careless manner" -- Whether offence satisfies minimum fault requirements under s. 7 of Canadian Charter of Rights and Freedoms -- Criminal Code, R.S.C., 1985, c. C-46, s. 86(2).

Criminal law -- Mens rea -- Criminal Code prohibiting storing of firearms or ammunition "in a careless manner" -- Whether offence satisfies minimum fault requirements under s. 7 of Canadian Charter of Rights and Freedoms -- Criminal Code, R.S.C., 1985, c. C-46, s. 86(2).

The accused was charged with storing firearms and ammunition in a careless manner, contrary to s. 86(2) of the Criminal Code. He was granted a stay of proceedings in Provincial Court, on the basis that s. 86(2) violated s. 7 of the Canadian Charter of Rights and Freedoms in a manner that could not be justified under s. 1 of the Charter. The Court of Queen's Bench reversed this judgment and ordered that the matter proceed to trial. It found that since the defence of due diligence was available, s. 7 of the Charter did not affect the validity of s. 86(2). The Court of Appeal allowed the accused's appeal and restored the stay of proceedings. It found that "mere negligence" did not meet the constitutional fault requirement found in s. 7 of the Charter and that the section was not saved by s. 1 of the Charter.

Held: The appeal should be allowed.

Per L'Heureux-Dubé, Cory and McLachlin JJ.: Lamer C.J.'s reasons were agreed with, except with respect to the objective test for penal negligence discussed in R. v. Gosset.

Per Lamer C.J. and Sopinka J.: In conducting a substantive review of criminal legislation under s. 7 of the Charter, courts must ensure that an element of fault allowing at least for a defence of due diligence is contained in all offences for which an accused is liable to imprisonment. Where the offence is one which carries sufficient social stigma coupled with potentially severe penal sanctions, the principles of fundamental justice may require a higher level of mens rea. Based on the interpretation of the section in R. v. Gosset, s. 86(2) of the Code satisfies these requirements. The fault requirement of the provision is to be assessed objectively and consists of conduct that is a marked departure from the standard of care of a reasonable person in the circumstances. If a reasonable doubt exists either that the conduct in question did not constitute a marked departure from that standard of care, or that reasonable precautions were taken to discharge the duty of care in the circumstances, a verdict of acquittal must follow. The objective assessment of fault also has to consider the capacity of an accused to meet the standard of care required in the circumstances. Given the nature of the offence, the absence of any proof of advertence in the imposition of a conviction, and the range of punishment upon conviction, there is not sufficient stigma arising from a conviction under s. 86(2) to require a subjective mens rea.

Even though s. 86(2) of the Code will shortly be repealed and replaced, the accused remains in jeopardy, and the issue in this case is therefore not moot.

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