Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


R. v. BARCA, 2022 MBCA 80, OCTOBER 12, 2022.


At paragraph 96:

– Generally speaking, the recklessness would require that the accused was aware of the danger (i.e., risk) that his conduct, in circumstances known to him, could have brought about the result prohibited by the criminal law, but proceeded with that conduct, despite the risk—this is the Sansregret definition.

– A modification to the definition of recklessness may be required by the definition of the offence.  For example, under section 229(a)(ii), an accused must mean “to cause . . . bodily harm that . . . is likely to cause . . . death”, so an accused must be aware that his conduct is likely to cause death; being aware that there is a danger that his conduct could bring about death is not sufficient.  (See Czibulka at paras 66-68).

– Where the conduct at issue is lawful day-to-day behaviour, knowledge of any risk that that conduct could cause the prohibited result is not sufficient to establish recklessness.  The accused must be aware that his conduct creates a substantial and unjustified risk of causing that result.  (See Hamilton; and Zora.)

– Whether the risk is substantial and unjustified is determined on an objective basis, although the accused must have knowledge of the facts that make it so.  (See Manning & Sankoff; Deslauriers; and Zora.)

– Substantial risk is defined as not “far-fetched, trivial, or de minimis” (Zora at para 118).  Whether the risk is unjustified requires a consideration of the extent (degree) of risk, the nature of the harm, the social value in the risk, and the ease with which the risk could be avoided.  (See Zora.)

Section 244.2(1)(b) of the Criminal Code:

At paragraphs 120 to 123:

Under section 244.2(1)(b), the Crown must prove, beyond a reasonable doubt, that, in intentionally discharging a firearm, the accused was reckless as to the life or safety of another person.  Applying Sansregret, the Crown must prove that the accused knew that there was a risk that his conduct (intentionally discharging the firearm in the circumstances known to him) could bring about the prohibited result (danger to the life or safety of another person) and he proceeded despite that risk.

There is nothing in the definition of the offence in section 244.2(1)(b) that requires a modification to the general definition of recklessness in Sansregret.

Thus, applying the Sansregret definition of recklessness, the Crown must prove the following:

– that the accused knew the facts and circumstances being relied upon to establish the recklessness; and

– that the accused knew that there was a risk that his conduct, in those circumstances, could cause the prohibited result of endangering the life or safety of other people and acted with indifference to that risk.

Whether the risk was substantial and unjustified is determined objectively, although the accused must be aware of the factors that made it so.