Olga Steblyk / Sputnik Photography
Superior Court of Justice in Brantford.
There have been many terms in history to describe this person: the right-thinking member of society, the fair-minded and informed observer, the man on the Clapham omnibus or l’homme moyen. However, most people know them as the “reasonable person.”
The concept of the reasonable man was first introduced to law in the English case, Vaughan v Menlove. In this case, the court stated that because “the judgment of each individual [are] as variable as the length of the foot of each, we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe.”
Since Menlove, the reasonable man became the reasonable person and it has been the focal point in many areas of law ranging from criminal law, all the way to contract law. The reasonable person standard is an essential tool in helping judges or juries consider what behaviour or conduct is legally acceptable.
But what makes a “reasonable person” reasonable?
In the most basic sense, the ability to reason is the ability to think rationally based on evidence. The reasonable person considers their conduct to prevent, either through action or inaction, any harm to the world around them. The reasonable person standard is almost unanimously thought of as an objective standard, but that fails to consider that humans are not perfect. The reasonable person standard often fails to consider the background or characteristics of a person in favor of standard objectivity.
American legal scholar Martha Minow wrote in the book, Making all the Difference: Inclusion, Exclusion, and American Law, “The stigma of difference may be recreated both by ignoring and by focusing on it … These problems of inequality can be exacerbated both by treating members of minority groups the same as members of the majority and by treating the two groups differently.”
The courts have made attempts to bridge the gaps between those differences to make the legal system more inclusive. For example, the reasonable person must also be seen as having the same limitations as the defendant when it comes to mental or physical ability. A disabled defendant is expected to act as a reasonable person with that same disability would act.
Yet for other marginalized populations, navigating the current legal system can be a hostile futile experience. The “reasonable woman standard” was coined in an attempt to make the legal system more inclusive of the experience of women who are victims of sexual violence or domestic abuse. It is evident that gender plays a considerable role in shaping the lives, experiences and opportunities of women. The reasonable woman allows for conduct to be considered against a context of discrimination and misogyny.
However, the reasonable woman standard isn’t a one-size-fits-all approach. Intersecting identities such as race or class changes the experience between each individual woman and the way they respond to situations will be different. To address these gaps, courts need to fully grasp the nuances of the lived experiences of various groups of people or else it could threaten to perpetuate the very harm it seeks to defeat.
While creating specific reasonableness standards could help in acknowledging how various people experience and respond to certain situations thereby furthering an equitable legal system, it should not be the end-all be-all. The reasonable person standard is a tool and should be regarded as just that. It should be a tool used to build bridges towards fairness and justice, rather than a weapon used to punish those who are different.
This article was originally published in print Volume 23, Issue 4 on Thursday, Dec. 7.
