Supporting General Principles for Criminal Responsibility in the Model Penal Code with Suggestions for Reconsideration: A Canadian Perspective

Abstract

A case is made for the general principles of criminal responsibility set out in the Modern Penal Code with particular attention to its general requirements of act and culpability and provisions on justification and excuse. The significance of the lack of constitutional protection in the United States is considered. The argument that the assertion of general principles is too insensitive to the context of particular crimes and issues of diversity is confronted. I suggest that aspects of the present law of sexual assault in Canada are potentially repressive precisely because they ignore sound general principles. A plea is made to keep principles simple, with consideration given to the recent bloody debate between Professors George Fletcher and Paul Robinson. The paper concludes with some suggested reconsiderations of the M.P.C.: 1. Draw brighter lines between categories of culpability: (a) Do not distinguish knowledge and recklessness, (b) Insist on awareness of risk for recklessness, and (c) Punish negligence offences separately with lesser penalties; 2. Allow for individual factors in objective standards; 3. Declare generous individualised excuses; 4. Preserve the presumption of innocence with no reverse burdens; 5. Return to strict construction of ambiguous criminal law; 6. Define criminal responsibility for omissions; and 7. Separate issues of cause and culpability. Appended is a draft General Part I recently suggested for adoption in Canada. This is published in a collection of essays: Stuart, Delisle and Manson (ed.) Towards a Clear and Just Criminal Law (1999, Carswell. Toronto).