Moral Culpability versus Result Orientated Reasoning -- A Brief Reflection on the Case of Daniel Tschetter

Moral culpability or moral blameworthiness sits at the heart of punishment in criminal cases. In legal parlance, the mens rea of a crime is the intention on the part of the wrongdoer to commit the criminal act. Manslaughter cases, such as the prosecution of Daniel Tschetter, involve a difficult analysis to determine what the offenders actual moral culpability is.

In Alberta, jurists rely upon a case called R. v. KKL or more often referred to as R. v. Laberge to assess moral blameworthiness in manslaughter cases. In Laberge, the Alberta Court of Appeal essentially created three primary categories of moral culpability. At the bottom end of the range -- or the lowest category of moral blameworthiness -- are close to accidental acts. The question is, did the offender's conduct create a situation whereby the oconduct was likely to cause bodily harm that was neither trivial nor transitory. In the middle range are acts where the offender was reckless or wilfully blind to the extent that he ought to have known that there was a risk of serious bodily injury. At the upper end of the range is whether the offender knew or proceeded recklessly in the face of the risk that his or her acts would result in life-threatening injuries in a manner just short of the intent to kill required to elevate the act to murder. Of course, a true application of Laberge involves a more complex analysis, but this general outline suffices to make the point. Moral culpability is on a spectrum.

Manslaughter always involves the death of another human being. The human toll is high, as is the toll exerted on the living. With this in mind, we should always remember that criminal justice cannot reincarnate or repair the loss of life. All criminal justice can do is punish the wrongdoer in a manner appropriate to the act and the blameworthiness associated with that act. There is little doubt that Mr. Tschetter did not intend to kill anybody. Like so many human beings he engaged in a form of conduct that is inherently dangerous and on the findings of fact in this case, did so in a criminal manner.

The interesting aspect in this case is that Mr. Tschetter's moral culpability arguably does not increase with the death toll. Arbuably, blameworthiness is the same regardless of whether one person died or more. Put another way, the unfortunate, unintended consequences of an act does not necessarily change the moral blameworthiness associated with the act itself. The reason I say this is to remind citizens that punishment must reflect the moral blameworthiness of the crime. Where the end result is catastrophic -- as it was in the Tschetter case -- we should be cautious penalizing on result alone.

Though I appreciate this may sound rather cold, the reality is, true justice recognizes the distinction between the degree of moral blameworthiness and the result.


David G. Chow
Calgary Criminal Lawyer

www.calgarydefence.com