2. SOME CASES

It will help make concrete the discussion that follows if we consider some actual cases in which the fundamental problems of penal law theory crystallize. The cases illustrate three perennially troubling issues in the penal law: What is the appropriate level of fault for criminal negligence? What is the appropriate test for the actus reus of attempts? What is the proper scope of the rule that ignorance of the law is no excuse for an offense? These issues in turn raise more basic problems: What is the role of mens rea in the criminal law? What is the significance of the act requirement? What is the criterion—if any exists—for the distinction between crimes

and public welfare offenses, and what implications does this distinction have for the structuring of excuses?

2.1 R. v. Tutton and Tutton16

Mr. and Mrs. Tutton were parents of a five-year-old son. The son was a diabetic who required regular injections of insulin to survive. His parents had been well informed of the boy's need of insulin, but on two occasions they withheld the drug because they believed the child had been healed by the power of the Holy Spirit. On the first of these occasions, the boy fell seriously ill and was taken to the hospital, where he recovered on being given the appropriate medication. At that time doctors told the parents never to discontinue the insulin injections and warned them of the dire consequences of doing so. On the second occasion (a year later), the boy died.

The parents were charged with criminal negligence causing death. Under the Canadian Criminal Code, someone is criminally negligent "who in doing anything, or omitting to do anything that is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons."17 The "wanton or reckless disregard" formula codifies the common-law requirement of recklessness for manslaughter (or causing bodily harm) by criminal negligence. The parents' defense was that they honestly believed the boy had been miraculously cured, that they were thus unaware of the grave risk to which they were exposing him, and that they had therefore shown no wanton or reckless disregard for his life.

The Tuttons' fate depended on the meaning of "wanton or reckless disregard." On this question, there are two opposing views. One holds that the test for recklessness is objective, that wanton or reckless disregard consists in a marked and obvious departure from the standard of care of the ordinary prudent person.18 Recklessness, in other words, is egregious negligence, where the aggravating factor is not any mental state of the accused but simply the greater disparity (considering the magnitude of the risk and the seriousness of the potential harm) between the accused's conduct and that of the reasonable person. If the accused's conduct manifests this degree of negligence, he is open to criminal prosecution regardless of whether he subjectively foresaw the danger to which he was exposing the victim. Those who advocate this test usually also favor a modification originally proposed by H. L. A. Hart, one that would allow a jury to consider any physical or mental characteristics of the accused that might have incapacitated him from conforming to the standard of care.19 What exonerates, however, is not the accused's obliviousness to the danger but his incapacity to take the care of the ordinary prudent person.

The other view holds that recklessness differs from civil negligence not in degree but in kind. On this view, recklessness is advertent negligence,

which means that the jury must be able to infer from all the evidence that the accused directed his mind to the excessive risk he was imposing on the victim and resolved to proceed despite the risk.20 Usually an obvious danger will permit this conclusion, but the accused may introduce evidence (such as his religious beliefs) that rebuts an otherwise natural inference of advertence. According to this subjectivist view of criminal negligence, the latter need not involve egregious negligence, nor is gross negligence sufficient; for the crucial factor (once a breach of the standard of care is proved) is the mental state of the accused. For the subjectivist, criminally negligent conduct is any negligent conduct performed with a consciousness of the unreasonableness of the risk. Obviously, it matters a great deal how we resolve this controversy. On the objective test, the Tuttons are guilty of manslaughter and liable to imprisonment for life; on the subjective test (if we believe their story), they are innocent.

The Supreme Court of Canada split evenly on the test for criminal negligence, sending the case back for retrial without giving the trial judge any guidance on how to instruct the jury. I will not go into the judges' reasons, for on neither side do they give the best defense of the position. Instead, I will set out an argument widely viewed as having presented an invincible case for the (modified) objective test of criminal negligence and that has greatly influenced courts and legislatures toward accepting negligence as a basis for criminal liability.

The argument is H. L. A. Hart's.21 Hart advanced his argument in a critique of a famous essay by J. W. C. Turner in which Turner equated criminal liability for gross negligence with absolute liability or liability without fault.22 Hart's main argument begins as follows:

At the root of Dr. Turner's arguments there lie, I think, certain unexamined assumptions as to what the mind is and why its "states" are relevant to responsibility. Dr. Turner obviously thinks that unless a man "has in his mind the idea of harm to someone" it is not only bad law, but morally objectionable, as a recourse to strict or absolute liability, to punish him. But here we should ask why, in or out of law courts, we should attach this crucial importance to foresight of consequences, to the "having of an idea in the mind of harm to someone." On what theory of responsibility is it that the presence of this particular item of mental furniture is taken to be something which makes it perfectly satisfactory to hold that the agent is responsible for what he did? And why should we necessarily conclude that in its absence an agent cannot be decently held responsible?
. . . [T]here is nothing to compel us to say "He could not have helped it" in all cases where a man omits to think about or examine the situation in which he acts and harm results which he has not foreseen.23

So far Hart's argument deals with the conditions of responsibility or of validly attributing harmful consequences to an agent. Advertence to an unreasonable risk of harm, he says, is not the sole basis on which we can

justly hold an agent responsible for the harm he causes; for if the agent could have attended to such a risk, he is responsible for having failed to do so. Hence punishing the agent for this failure does not amount to imposing absolute liability.

Taken alone, this argument does not take us very far in justifying punishment for gross negligence. From the fact that someone is responsible for a wrongful act or consequence it does not follow that punishing him is justified. If I voluntarily take something that belongs to another, I am responsible for the other's deprivation and must make good his loss; however, it does not follow that I can also be punished, for I may have sensibly thought that the thing was my own. It is certainly reasonable to think that responsibility for a wrongful act is a necessary condition of just punishment. However, it is not sufficient, for nothing in the idea of responsibility for a wrong entails punishment as the appropriate response. Moral censure as well as a civil action for damages are eligible alternatives both of which also presuppose an act imputable to the agent. Accordingly, we need a further argument to bridge the gap between the idea of responsibility and the idea of punishment, or at least to show why it would not be unjust to punish actors whose responsibility lay only in their negligence. Hart supplies such an argument.

The reason why . . . strict liability is odious . . . is not merely because it amounts, as it does, to punishing those who did not at the time of acting "have in their minds" the elements of foresight or desire for muscular movement. These psychological elements are not in themselves crucial though they are important as aspects of responsibility. What is crucial is that those whom we punish should have had, when they acted, the normal capacities, physical and mental, for doing what the law requires and abstaining from what it forbids, and a fair opportunity to exercise these capacities. Where these capacities and opportunities are absent, as they are in different ways in the varied cases of accident, mistake, paralysis, reflex action, coercion, insanity, etc., the moral protest is that it is morally wrong to punish because "he could not have helped it" or . . . "he had no real choice." But . . . there is no reason . . . always to make this protest when someone who "just didn't think" is punished for carelessness. For in some cases at least we may say "he could have thought about what he was doing" with just as much rational confidence as one can say of any intentional wrongdoing "he could have done otherwise."24

The bridging argument is thus a comprehensive theory of excuses from criminal liability. According to this theory, it is just to punish someone only if he had a "fair opportunity" to conform his activity to the law. In another essay, Hart explained why this opportunity was so crucial to just punishment.25 Only if the agent could have avoided the sanction is the punishment not a blind fate imposed on him ab extra but something over which he can exercise control. The requirement of a fair opportunity to comply with the law thus embodies respect for the agent's autonomy, a value Hart

thought worth preserving even if (as he believed) the justifying rationale of punishment were instrumentalist or goal-oriented rather than retributive or desert-based. The reason why mistake, automatism, insanity, and duress excuse from crime, argues Hart, is that under these conditions the agent has no opportunity to avoid breaking the law; to punish him would thus be to subject him to an uncontrollable necessity and so to subordinate him to a policy in which he cannot see respect for his freedom. But, continues Hart, failure to advert to a risk does not necessarily mean that the agent could not have avoided it. In the absence of incapacitating conditions, an agent has an opportunity to inform himself of the dangers attending his action, and so punishing him for failure to do so is consistent with the underlying rationale for excuses.

We can see that in this argument the fair opportunity to avoid criminal sanctions operates as a constraint on punishment; it does not tell us what justifies punishment in the first place. Hart believed that punishment is justified by the public good it serves through its deterrent and reformative effects.26 The argument against Turner, therefore, only cleared away a moral obstacle to punishment for negligence; it did not present a positive case for it. For Hart, the positive case could come only from empirical evidence showing that punishment for negligence would produce an increment of social benefit worth its cost.

This is indeed a powerful argument for regarding advertence as irrelevant to liability for criminal negligence. The only difficulty that initially leaps to view is that Hart's argument provides no reason for limiting criminal liability to gross negligence; it would also permit criminal sanctions for any breach of the standard of care. Yet there is nothing obviously wrong with this, provided that the moral difference between gross and "ordinary" negligence were reflected in the penalties attached to them. So Hart's case does indeed seem invincible. Nevertheless, my argument in this chapter will yield the conclusion that negligence, gross or otherwise, has no place in the criminal law and that the Tuttons are therefore innocent of criminal (though not necessarily of all) wrongdoing. The argument, moreover, will be one that someone who adopts Hart's standpoint could accept. For I will try to show that punishing someone as a criminal for negligence does indeed violate Hart's constraint of agent autonomy; and second, I will argue that Hart's error lies not in having misconceived the rationale for excuses but in having extended a legal paradigm to which this rationale belongs over a domain in which it is an alien intruder.

2.2 Campbell and Bradley v. Ward27

On approaching his parked car, Eastwick noticed McCallion, a stranger, exiting the car from the front seat. Eastwick began chasing McCallion, who hurried into another car that had been standing nearby, motor running,

with Bradley at the wheel. Eastwick jumped onto the car's running board and managed to drag McCallion from his seat as Bradley sped away. Eastwick then took McCallion to a nearby hotel where he handed his captive over to the police.

When Bradley was later apprehended, he told the police that he, McCallion, and Campbell had been driving along when their car's headlights began to fail. They decided to steal a battery as well as any other equipment they could get their hands on (Campbell needed a car radio). McCallion then tried unsuccessfully to enter a number of cars before he found Eastwick's. When he saw Eastwick approaching, McCallion fled the car empty-handed. McCallion, Bradley, and Campbell were subsequently charged with attempting to steal a battery from a motor vehicle. All three were convicted by a magistrate, and Campbell and Bradley appealed.

The central issue on appeal was whether the accused had gone far enough toward achieving their aim to be guilty of a criminal attempt. Like that of most common-law jurisdictions, New Zealand's law of attempts distinguishes between acts that are mere preparation for the commission of an offense (and hence too remote from completion to be a crime) and acts sufficiently proximate to the completed purpose to constitute an attempt. This verbal distinction cannot decide cases, however, until some principle is found to guide the mind in determining whether an act is or is not too remote. At the time of the appeal, Adams, J. felt himself bound by the test enunciated in a minority judgment by Salmond, J. in R. v. Barker.28 According to Salmond, J., an act is an attempt if it manifests on its face a criminal intent, or if it cannot reasonably be interpreted otherwise than as embodying a criminal purpose.29 This has become known as the unequivocality test of attempts; and it is a crucial part of this test that in deciding whether the act unequivocally manifests a criminal intent, a judge is required to ignore all evidence of intent—for example, from a confession—extrinsic to the act itself. The point of this exclusion is to preserve the act requirement as something distinct from the requirement of intent. In demanding an act unambiguously manifesting a criminal purpose, the judge is not seeking in the acts of the accused evidence of intent in order to satisfy himself that the accused had the requisite mens rea. Rather, he is insisting that the accused have outwardly embodied his intent, and he determines this by asking whether the act in itself signifies a criminal purpose. Obviously, he could never receive an answer to this question if he allowed evidence of intent from external sources to color his judgment about the meaning of the act.

In applying the unequivocality test to the facts in Campbell and Bradley, Adams, J. held Bradley's confession to be inadmissible on the question of remoteness. He then asked himself whether the accused's acts taken by themselves unequivocally manifested an intent to steal a battery (for that,

recall, was the charge against them). He naturally concluded that they did not. The most natural inference from the acts, he said, was that the accused had intended to steal the car, but attempted theft of a vehicle was a more serious offense for which the accused lacked the requisite intent. Since their acts were consistent with an attempt to steal any number of different objects, and since the judge could not resort to the confession to resolve the ambiguity, Adams, J. quashed the convictions. "In these circumstances," he said, "though the Court knows full well . . . that it was theft that was contemplated, it is impossible to convict them of attempted theft. Accordingly, the convictions for the attempt cannot stand. If this be regarded as unsatisfactory, the remedying of it seems to rest with the Legislature."30

The New Zealand Legislature accepted this invitation and overruled the unequivocality test by statute.31 The test has also been trenchantly criticized by Glanville Williams, who argues that no acts falling short of a completed criminal purpose will unequivocally manifest a specific criminal intent.32 The example he gives is that of a masked man discovered in someone's backyard at night. Unless we take into account what we know of his intention from other sources, we shall never be able to conclude whether the man intended burglary or arson or any other offense. Thanks largely to Williams's critique and to cases like Campbell and Bradley, the un-equivocality test has been almost universally abandoned in the common-law world. In some cases, it has been replaced by locutions like "substantial step" or "relative proximity" that add nothing to the preparation/ attempt distinction and leave judicial discretion untrammeled.33 In other cases, it has been supplanted by tests designed to catch "dangerous" persons and that ask whether the accused would likely have carried out his plan if not interrupted.34 In still others, the unequivocality test has yielded to one that effectively eliminates the act requirement by asking whether the act yields evidence of purpose that, when considered together with evidence from all other sources, conclusively proves a specific criminal intent.35 Despite the uniformly low regard in which Salmond's unequivo-cality test is currently held in the common-law world, I shall argue that, properly understood, it is the correct one and that McCallion and his friends are guilty under it.

2.3 R. v. Campbell and Mlynarchuk36

Ms. Campbell was convicted under the Canadian Criminal Code for taking part in an immoral performance. She had danced nude before an audience in an Edmonton nightclub after having been assured by her employer that "bottomless dancing" was legally permissible. In fact, a trial judge of the Supreme Court of Alberta had recently ruled that dancing

nude in a public place was within community standards of tolerance, and the employer informed Ms. Campbell of this ruling. It was only on being assured that nude dancing was permissible that Ms. Campbell agreed to perform as she did.

Ms. Campbell appealed her conviction. However, by the time her appeal was heard, the trial decision on which she had relied had been reversed on appeal. The Alberta Court of Appeal had held that nude dancing was indeed an immoral performance, and the district court judge in Ms. Campbell's case was naturally bound by that decision. The question, then, was whether Ms. Campbell could be excused because, having relied on a declaration of law by a Supreme Court judge, she reasonably believed her performance was lawful. The district court judge rejected this argument. Ms. Campbell's mistake was one of law rather than fact, and the Criminal Code states unambiguously that ignorance of the law is no excuse for an offense.37 The judge acknowledged that the effect of this rule was to require Ms. Campbell to know the law better than a Supreme Court judge but expressed the Holmesian view that the rationale for the rule lay not in justice but in policy: allowing ignorance of the law to excuse would reward the ignorant, whereas the law wishes to promote knowledge of its commands.38 Nevertheless, the judge saw a way out of his dilemma. Though Ms. Campbell was guilty as charged, the judge's sentencing discretion allowed him to rectify the injustice of the rule. This he did by granting Ms. Campbell an absolute discharge. As fate would have it, the trial decision on which Ms. Campbell originally relied was later reinstated by the Supreme Court of Canada.39

That ignorance of the law is no excuse is a common-law principle of ancient origin. Sir Matthew Hale, writing in 1680, articulated the assumption behind the rule. "Every person of the age of discretion and compos mentis. " he wrote, "is bound to know the law, and presumed so to do."40 This means that a plea of ignorance or mistake of law will be heard from an adult accused only within the context of a plea of insanity. Many have observed that the presumption of legal knowledge, while sensible in the case of serious crimes, is out of place in the context of the regulatory state with its myriad obscure statutes, regulations, ordinances, and by-laws. In the United States, accordingly, the rule has been greatly relaxed to the point where ignorance of the law will excuse if there was nothing to alert the accused to the possibility of a violation or if he took reasonable steps to ascertain the law.41 In Commonwealth countries, however, the ignorance rule is applied more rigidly. While exceptions are made for unpublished regulations as well as for reasonable reliance on erroneous official representations (the trial judge's statement on which Ms. Campbell relied was presumably not erroneous but correct at the time he made it), Com-

monwealth courts have balked at recognizing a general defense of reasonable mistake of law.42 This is all the more puzzling when we consider that they have had no difficulty in accepting a plea of reasonable mistake of fact. Thus, if Ms. Campbell had reasonably believed she was wearing a coveting (it having dropped off during the performance), she would have had a valid excuse to the charge; yet a reasonable belief that dancing nude was lawful afforded her no defense.

The law's traditional refusal to acknowledge ignorance of law as an excuse has had an importance transcending the confines of the rule itself. Specifically, it has played a crucial role in interpretive debates about whether guilt at common law is a matter of conscious defiance of law or of negligently failing to conform to it. Those who argue that negligence is a proper ground of criminal liability point to the rule about ignorance to buttress their position, for the rule apparently allows the punishment of someone who did not know his act was unlawful but should have. Holmes, for example, argued that the rule exemplifies the criminal law's tendency to judge persons by an external standard of average competence, one that ignores the actual capacities, knowledge, or innocent intent of the accused. The sole aim of the criminal law, he thought, was to induce persons to conform their actions to a certain standard, and this aim would be subverted if the accused's ignorance of the standard could nullify its force.43 Fletcher has also taunted the subjectivists with the rule about mistakes of law. There is no sound basis, he argues, on which a subjectivist can distinguish between mistakes of fact and those of law, since in neither case does the accused make a conscious choice to break the law. The subjectivist is thus committed to allowing even a negligent mistake of law to excuse, a position endorsed by no Western legal system and offensive to "basic sensibilities of justice."44 Obversely, Fletcher argues, the fact that intuition rejects negligent mistake of law as an excuse shows that criminal liability cannot be explained by a theory equating culpability with the conscious choice to do wrong.

The interpretation of the penal law that follows will generate two propositions regarding the rule concerning ignorance of the law: first, that insofar as the rule applies to "true crimes," it is fully in harmony with the requirement of subjective fault and so provides no comfort to advocates of an objective or negligence standard of criminal liability; second, that insofar as the rule applies (as in Campbell and Mlynarchuk) without appropriate qualification to public welfare offenses, it involves an expansion of the pure agency paradigm of the penal law into a territory over which that model has no valid authority. In contrast, therefore, to those who see the blanket ignorance rule as supporting an objective theory of criminal culpability, I view it as embodying the obverse error. Whereas the objective

theory involves the imperialist extension of the welfarist paradigm, the blanket ignorance rule manifests the hegemonic impulse of the pure agency model.

It will perhaps already be evident that almost all of the doctrinal criticisms and prescriptions I will offer turn on the judicial distinction between true crimes and public welfare offenses. The validity of this distinction will not, of course, be taken for granted. On the contrary, the theory of the penal law I offer will vindicate the distinction and suggest a criterion for it. It will also show the origin of the currently widespread skepticism regarding the distinction in the imperialism of the welfarist model; and it will show why this expansionism is wrong on the model's own terms.