The Distinction between Conscious Negligence
© by François Lareau, Ottawa, revised 2 December 2001
The 1962 Model Penal Code limits negligence in taking a risk
by inadvertence (unconsciously) only.1
This is wrong. There are two distinct forms of negligence:
(conscious) and inadvertent (unconscious) negligence. The
lie in analysing and recognizing conscious negligence and of
it from recklessness.
I - Conscious Negligence
Not much has been written in Canada about conscious
Only, the former Law Reform Commission of Canada (LRCC) has done so.
In a working paper on negligence, the LRCC wrote that "negligence
not taking enough care perhaps through inadvertence but perhaps also
other things such as misjudging or using insufficient skill".2
In their comments to the Draft Criminal Draft code, the LRCC stated
"Where the risk is taken consciously, the difference between negligence
and recklessness is that, in the latter instance, it is much more
to take it; this calls for a value judgment in each individual case".3
The LRCC test of distinction opens the door to arbitrariness and
treatment of accused under the law (injustice). The use of the
"much more unreasonable" calls for an objective evaluation of the risk
perceived. What the LRCC meant to convey is that the greater the
risk perceived, the more likely it is a case of recklessness rather
conscious negligence. The problem with the LRCC's thinking (and
common law system) is the failure to look at the "inner posture"4
of the agent. Fletcher shows the false route taken by the common
The orientation of the system is toward actual risk and knowledge of risk, not the inner posture of the actor. This emphasis on external events yields the infelicitous dogma that a person's intent is to be judged by the 'natural and probable consequences of his acts'. But the same orientation avoids turning to the jury and asking whether in his heart, the actor 'was reconciled' with the likelihood of death.5
I agree with Professor Fletcher. This is not to say that the Crown or State has to prove on a charge of negligence, this inner mental posture of the accused. After all, and quite correctly, the essence of negligence, may it be conscious or unconscious, is the blameworthy failure to take reasonable care. This judgment calls for a test, partly objective (wrongdoing) and partly subjective, i.e., taking into consideration some personal characteristic of the accused (attribution).6 The importance of the existence of this inner mental posture for counscious negligence is that it permits to distinguish it from recklessness. Such a situation is important only in a trial where the trier of fact has do decide if the proper alternative verdict involves a charge of recklessness or negligence.
II- The "Inner Posture" in Recklessness or Dolus Eventualis
In Canada, Professors Fortin and Viau have understood the concept of
recklessness by writing "[translation] Recklessness is an active state
of mind as it requires consciousness and acceptance of the risk".7
The important words are "consciousness" and "acceptance".
is an act of the will. One of the great Canadian criminal
jurist, Mr. Justice Dickson, went farther in making clear this inner
by writing that recklessness is "foresight or realization on the part
the person that his conduct will probably cause or may cause the actus
reus, together with assumption of or indifference to a risk, which
in all circumstances is substantial or unjustifiable".8
The important words are "foresight", "realization", "assumption" (i.e.
acceptance) and "indifference". Mr. Justice Dickson goes further
than Fortin and Viau by adding the concept of "indifference" as another
inner posture. "Indifference" is also another position of the
Thus, in recklessness, the aim of the agent is not to cause the
result, nor is there a virtual or practical certainty of causing this
result. For example, on a charge of reckless homicide, the aim of
the accused is not to cause death or kill; the agent views the
(i.e., the serious and real) and unjustifiable risk of death as a
that could possibly result from his conduct that is aimed at another
(e.g., blowing a safe during a bank robbery). However, the
agent accepts or is indifferent to the eventuality that the explosion
kill a guard who, he or she knows, is in the bank.
When we have stated the LRCC above that "Where the risk is taken
the difference between negligence and recklessness is that, in the
instance, it is much more unreasonable to take it", is it not really a
small leap forward to conclude that in those cases, the trier of fact
conclude that the more the unreasonable the risk is, the more accused
or was "indifferent" to the risk? I think so.
From a natural law approach (reason), I do not see any difference
the concepts of recklessness and the European and South American
of dolus eventualis.
For the Germans (and their many followers all around the
intention can be divided into three categories: a) the
"where the perpetrator aims at achieving the relevant unlawful
; b) the case "where the perpetrator foresees such unlawful
as certain to follow from his conduct, although this is not his aim or
purpose"10 ; and c) dolus eventualis which
will now examine.
Jescheck, a former President of the International Association of
Law, states that case-law usually utilizes the theory of consent to
eventualis in that "[translation] the actor must have consented to
the result or at least have taken it into consideration."11
However, Jescheck adds:
[Translation] More accurate, and corresponding more closely to the psychological state of the actor in case of uncertainty as to the realization of the non-desired result, is a recent theory requiring for dolus eventualis that the actor believed the result seriously possible and reconciled himself with that possibility. 12
To "reconcile" oneself with a possible result is to simply to accept the possible result, to live with it, if it happens. Dolus eventualis can also include indifference and foresight to the possible result as explained by Fletcher.13
But what is the difference between dolus eventualis and
Jescheck explains that that a persons acts negligently
when he brings about the constitutive elements of the offence by reason
of an involuntary violation of a duty of care".14
The important word is "involuntary". In dolus eventualis,
the result is voluntary and in conscious negligence, the result is
Jescheck explains the difference between the two forms of negligence as
[Translation] In the first hypothesis [unconscious or inadvertent negligence], the actor because of a lack of care, does not think of the possibility that he may bring about the constitutive facts of the offence; in the second hypothesis [conscious or advertent negligence], he in fact recognizes the real risk for the protected interest, but underestimates it or overestimates his own capabilities, trusting that he will not bring about the offence.15
Morkel in his important article on the subject states that conscious negligence "entails a decision that the outcome of his conduct will be a happy one".16 In the XIXth century, John Austin, who had studied law in Germany, had captured the meaning of conscious negligence with his concept of "rashness":
The party, who is guilty of rashness thinks of probable mischief; but in consequence of a missupposition begotten by insufficient advertence, he assumes that the mischief will not ensue in the given instance or case... . The party runs a risk of which he is conscious; but he thinks (for a reason which he examines insufficiently) that the mischief will probably be averted in the given instance.17
At this stage, it would be useful to give examples of dolus eventualis and conscious negligence. In both situations, the actor foresees that his conduct may cause the unlawful consequence. However, it is what happens afterwards in the mind of the actor that differentiates the two concepts.
First, an example of dolus eventualis.18
A has been given a "contract" to burn a house down. He
that B is inside the house, probably sleeping. A knows that by
the house on fire, B may die, not having the time to escape. In
case A's goal is to burn the house down and collect the money.
A in setting the house on fire accepts (or is indifferent) that as a
B may die.
Now, an example of conscious negligence.19
While hunting, Peter sees both a deer and C in the same vicinity.
Peter realizes that if he shoots at the deer, he may miss and hit D
However, Peter reassures himself by saying to himself that he is
a good shooter and that there is no risk. He decides (trusts)
he will not miss. He shoots and, however, kills D.
III- Some Thoughts on Recklessness (or Dolus Eventualis) and Conscious Negligence
We have already alluded to the first difference between the two
While both recklessness and conscious negligence involve foresight, the
former amounts to voluntary conduct (towards the objective) and
latter to involuntary conduct.
Secondly, for recklessness, the result is less important in value
the object of the agent's conduct while for conscious negligence, it is
the contrary.20 For example, in a
of negligent homicide, had the accused realized his mistake by thinking
seriously, reasonably and sufficiently about the matter, he would have
refrained from acting. Professor Fletcher writes that conscious
involves an affirmative aversion to the harmful "side-effect".21
Professor Fletcher explains:
The best way to state the distinction is to employ a contrafactual conditional. If the actor knew the side effect was going to occur, would he act in the same way? If yes, then the actor is reconciled to the side-effect.22
A possible third difference (which I have found brilliant) is that foresight at the precise instant of acting may have disappeared in cases of conscious negligence. If the actor no longer takes into consideration the risk, having concluded that it will not result, is he or she not then unconscious of the risk? This opinion would mean that at the time of the action (or omission), the conscious negligence has turned itself into unconscious negligence.23
The theory of mistake may be helpful in resolving or confirming the
distinction between recklessness and conscious negligence.
of fact, if honest and unreasonable, does negate recklessness but not
With conscious negligence, the actor makes a mistake by concluding that
the unlawful result will not occur. A mistake in cases of
does not eliminate the offence, since the essence of negligence in
cases is having made that unreasonable mistake. As Professor
has stated: "Where the crime requires gross negligence the mistake to
conviction must be grossly unreasonable".24
We have seen that in criminal law theory, the concept of recklessness is not different from the concept of dolus eventualis. We have also seen that there is much to gain in recognizing a form of negligence, known as "conscious negligence". The importance of defining such a form of negligence is that it permits to distinguish it from recklessness in situations where such a situation is relevant to the verdicts. Finally, this analysis permits to think of definining intention (and recklessnes) for common law lawyers in terms of consciousness and will.
1. Section 2.02(2)(d) on "Negligently" reads in part
as follows: "A persons acts negligently with respect to a material
of an offense when he should be aware of a substantial and
risk that the material element exists or will result from his
2. Law Reform Commission of Canada, Omissions,
Negligence and Endangering, Ottawa: The Law Reform Commission of
1985, [iv], 42 p., at p. 22, (series; working paper; 46), ISBN:
3. Law Reform Commission of Canada, Recodifying
Criminal Law (Revised and Enlarged Edition of Report 30), Ottawa:
Law Reform Commission of Canada, 1987, [xiv], 213 p., at p. 25 (series;
report; 31), ISBN: 0662547578.
4. Expression used by George
P. Fletcher, in Rethinking Criminal Law, Boston: Little,
1978, xxviii, 898 p., at p. 447.
6. On criminal negligence, see the excellent
Jeschek, "La structure juridique de la négligence et son
en Droit pénal moderne", (1965) 36 Revue internationale de
pénal 21-51; George
P. Fletcher, "The Theory of Criminal Negligence: A Comparative
(1971) 119 University of Pennsylvania Law Review 401-438.
7. Jacques Fortin and Louise
Viau, Traité de droit pénal général,
Montréal: Les Éditions Thémis, 1982, xi, 457 p.,
p. 109. The translation is by me.
8. Leary v. R.,  1 S.C.R.
(Canada Supreme Court Reports) 29, at 34. The dissent of Mr.
Dickson was not on the definition of recklessness which was not even
in the majority opinion of the court.
W. Morkel, "On the Distinction Between Recklessness and Conscious
(1982) 30 American Journal of Comparative Law 325-333, at 328.
Jeschek, "Droit pénal" in Michel Fromont and Alfred Rieg, Introduction
au droit allemand - République fédérale, Tome
Droit public - Droit pénal, Paris: Éditions Cujas,
428 p., pp. 253-337, à la p. 269, ISBN: 2254840308; notes:
of German to French by Alfred Rieg; I translated from French to
For an English text, see C.R.
Snyman, Criminal Law, 1st ed., Durban: Butterworths, 1984,
545 p., starting at p. 154, ISBN: 0409056170 and 0409056189 (pbk.);
there is a 3rd ed.: Durban : Butterworths, 1995, xii, 577 p., ISBN:
12. Jescheck, ibid., at p.272.
13. Supra, note 1, at pp. 446-447.
14. Jescheck, supra, note 11 at
p. 275. Negligence by omission is discussed at p. 278.
15. Ibid., at p. 275.
16. Morkel, supra, note 9, at p. 330.
17. John Austin, Lectures on Jurisprudence,
3rd ed. by R. Campbell, London: John Murray, 1869 at pp. 440-441.
18. A modified version of an example used by
Snyman, supra, note 11 at p. 155.
19. A slightly modified version of an example used
by Paul Logoz, Commentaire sur le Code pénal suisse,
Delachaux & Niestlé, 1976, 569 p., at p. 97, ISBN:
20. Ibid., at pp. 92-94.
Logoz states at pp. 92-93:
[dolus eventualis / translation by me] Given the choice between two unpleasant solutions (either give up the desired act, or carry out that act but risk bringing about some harmful result), the actor chose the second. For him, the harmful consequence of his act is simply the least of two evils. So in the end one can say that in the case of dolus eventualis, the actor made up his mind out of selfishness to go ahead with the act anyway. ....
[conscious negligence / translation by me]. ...[the] individual acted not out of selfishness but out of rashness; he did not give the matter sufficient thought.
See also Hermann Mannheim, "Mens Rea in German and English Criminal Law [Part I, II and III]", (1935) 17 Journal of Comparative Legislation and International Law (3rd series) 82-101 at pp. 92-93; 236-250; and (1936) vol. 18, pp. 78- 93;
21. Fletcher, supra, note 4, at p. 446.
23. See the authorities mentioned in Gillis
Negligence and Individuality, Stockholm: P.A. Norstedt &
Förlag, 1976, 282 p. at p. 78 (series; Institutet för
Forskning (IFRF); vol. 85), ISBN: 9117670713. See also Morkel, supra,
note 9, at pp. 330-331.
24. Glanville Williams, Criminal Law: The General Part, 2nd ed., London: Stevens & Sons, 1961, liv, 929 p. at p. 202.
[Main Page -- Criminal Law / Page principale -- droit pénal]