Fundamental Justice, Stigma and Fault

NANCY K. THOMSON

ABSTRACT

The Supreme Court of Canada has held that, absent special stigma, the minimum degree of fault required by the Canadian Charter of Rights and Freedoms for Criminal Code offences is one based on an objective standard. This article considers the Court's reliance on the notion of stigma as the primary factor to be considered in determining the constitutionally required degree of fault. The author concludes that stigma has limited utility as an analytical tool outside the context of murder and that the preferred analysis is contextual in nature. Within the framework of the fault analysis under s. 7 of the Charter, a contextual approach recognizes that different factors may assume more or less prominence depending on the offence under scrutiny. Such an approach is necessary to define the principles of fundamental justice which are at stake in any given case. The persistence of constructive liability in the offence of unlawful act manslaughter is discussed as one example of how the stigma analysis has undermined a principled resolution of fault issues by the Court.

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Citation: (1994) 52(2) U.T. Fac. L. Rev. 379.
Copyright © 1994. University of Toronto Faculty of Law Review.
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