A. Conceptual Considerations

Author:Kent Roach
Profession:Faculty of Law and Centre of Criminology. University of Toronto

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In order to explain the fault element of any criminal offence accurately, it is necessary to specify 1) the circumstances and consequences to which the fault element is directed, including its relation to the actus reus of the offence; and 2) the precise fault element required. It is not very helpful to say the mens rea for murder is subjective. A more precise approach would be to say the mens rea for murder requires at least subjective knowledge that the victim would die. Similarly, stating that the mens rea of manslaughter is objective tells only part of the story. The fault is objective foreseeability of bodily harm. The degree of negligence should also be explained, as should who is the reasonable person used to apply the objective fault or negligence standard.

It is also important to understand the differences between constitutional requirements and common law presumptions of particular forms of mens rea and how the so-called defences of intoxication and mistake of fact are really conditions that prevent the prosecutor from establishing the fault element beyond a reasonable doubt.

1) The Relation of the Fault Element to the Prohibited Act

The fault element does not exist in the air or in the abstract but must be related to certain consequences or circumstances. As MCLACHLIN J. has stated,

Typically, mens rea is concerned with the consequences of the prohibited actus reus. Thus, in the crimes of homicide, we speak of the consequences of the voluntary act - intention to cause death, or

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reckless and wilfully blind persistence in conduct which one knows is likely to cause death.3On this principle, a person is not guilty of assaulting a peace officer in the execution of his or her duties unless the accused has the mens rea for assault and subjective knowledge that the person is a peace officer. Similarly, the Court classified the old offence of statutory rape as absolute liability because Parliament had excluded fault in relation to a crucial aspect of the actus reus, namely the age of the girl.4The fault element should generally extend to all the elements of the prohibited act.

The Supreme Court has recognized that the criminal law "has traditionally aimed at symmetry between the mens rea and the prohibited consequence of the offence" as discussed above. Nevertheless, a majority in Creighton concluded:

It is important to distinguish between criminal law theory, which seeks the ideal of absolute symmetry between the actus reus and mens rea and the constitutional requirements of the Charter . . . .

I know of no authority for the proposition that the mens rea of an offence must always attach to the precise consequence which is prohibited as a matter of constitutional necessity.5In the result, MCLACHLIN J. held that objective foresight of the risk of bodily harm was a sufficient fault element for the crime of unlawful act manslaughter, even though the actus reus of the crime was causing death as opposed to causing bodily harm. Offences that do not require a fault element in relation to all aspects of the actus reus are sometimes

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called offences of partial intent, constructive crimes, or crimes based on predicate offences.

Constructive murder violates section 7 of the Charter because while it required the fault of a predicate offence (such as robbery) and the fault of causing bodily harm, it did not require fault with respect to the prohibited act of killing and did not satisfy the constitutional requirement that a murderer at least have subjective foresight of death.6

The Supreme Court pulled back, however, from declaring as a general constitutional principle that people could not be punished for the consequences of their actions in the absence of some fault or responsibility for those consequences. Thus, a person can be punished for causing death in a manslaughter case even though his or her fault only related to the objective risk of causing bodily harm.

Other offences require a mens rea that extends beyond the commission of the actus reus. Any attempted crime is a good example because it requires a mens rea that goes farther than the actus reus committed by the accused. Similarly, a person who assists a crime does something, such as acting as a lookout, for the further purpose of assisting the commission of the crime. Discharging a firearm with the intent to wound also requires proof of an intent to wound, even though an actual wounding is not part of the actus reus. Such offences are sometimes called ulterior intent offences, because they require an intent beyond the actus reus that is committed.

2) Subjective and Objective Fault Elements

A broad distinction is often drawn between subjective and objective fault elements. A subjective fault or mental element requires the Crown to establish that the accused subjectively had the required guilty knowledge in relation to the specified circumstances or consequences, whereas an objective fault element requires only that a reasonable person in the accused’s position would have had the required guilty knowledge or would have acted differently.

A distinction should be made between the subjective mental elements that the Crown must prove and the means used to establish such guilty knowledge. The judge or jury who must determine what was in an accused’s mind must rely on inferences from the evidence presented in the case. In deciding whether to draw these inferences, the trier of fact will almost inevitably consider what a reasonable person in the

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accused’s place would have thought or recognized. As Martin J.A. has explained,

Since people are usually able to foresee the consequences of their acts, if a person does an act likely to produce certain consequences it is, in general, reasonable to assume that the accused also foresaw the probable consequences of his act and if he, nevertheless, acted so as to produce those consequences, that he intended them. The greater the likelihood of the relevant consequences ensuing from the accused’s act, the easier it is to draw the inference that he intended those consequences. The purpose of this process, however, is to determine what the particular accused intended, not to fix him with the intention that a reasonable person might be assumed to have in the circumstances, where doubt exists as to the actual intention of the accused.7In other words, what the reasonable person would have known may provide the basis for the jury to conclude that the accused had a particular subjective mental element, but it never requires the jury to make such a determination.8The trier of fact must remain open to all the evidence presented in the case (especially evidence relating to peculiarities about the accused) and acquit the accused if any evidence raises a reasonable doubt as to whether that particular person, with all of his or her frailties and experiences, had the required subjective mental element.

Subjective mens rea operates as a doctrine that prevents the conviction of an accused who, for whatever reason, does not have the knowledge and foresight that a reasonable person would have. It operates to protect those who because of impaired reasoning or lack of thought do not recognize or intend what may be obvious to the reasonable ob-server. The function of subjective mens rea is "to prevent the conviction of the morally innocent - those who do not understand or intend the consequences of their acts."9

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The Supreme Court has kept clear the distinctions between subjective and objective fault elements, but it has been increasingly willing to see the latter as an appropriate form of fault. In Wholesale Travel Group,10Cory J. stated:

It should not be forgotten that mens rea and negligence are both fault elements. . . . Mens rea focuses on the mental state of the accused and requires proof of a positive state of mind such as intent, recklessness or wilful blindness. Negligence, on the other hand, measures the conduct of the accused on the basis of an objective standard, irrespective of the accused’s subjective mental state. Where negligence is the basis of liability, the question is not what the accused intended but rather whether the accused exercised reasonable care.

The preceding statement was made in the context of regulatory of-fences outside of the Criminal Code, but the Court has also accepted that negligence, albeit modified for the purposes of imposing criminal as opposed to civil liability, can be a sufficient fault level for most criminal offences.

In the context of Criminal Code offences based on negligence, the Supreme Court has indicated that there must be "a marked departure from the standard of care that a reasonable person would observe in the accused’s situation."11In R. v. Beatty, the Court arguably elevated the marked departure standard to a constitutional requirement when it warned:

If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy. Such an approach risks violating the principle of fundamental justice that the morally innocent not be deprived of liberty.12

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In addition to the requirement of a marked departure from reasonable standards, the Court in Beatty also held that...

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