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

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Many of the uncertainties surrounding the fault element for crimes could be addressed by legislative reform that provides generic definitions of the various levels of fault, that explains their relation to the actus reus, and that specifies what level of fault is required should Parliament not specifically address the issue in the drafting of a particular offence. The general rule should be that mens rea will relate to all aspects of the actus reus and that the lowest form of subjective mens rea, namely recklessness, should be the minimum form of fault for offences

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in the Criminal Code.163These standards are based on well-established common law presumptions. They are not constitutional standards under section 7 of the Charter, and Parliament can clearly depart from them when drafting particular offences.

Although not all levels of fault are the same, the number of fault elements could be reduced. Given the Court’s determination to distinguish intent from motive or purpose164and its requirement that knowledge of the prohibited act is the constitutionally required fault element for murder,165it could be argued that knowledge, as opposed to intent, purpose, or wilfulness should be the highest level of subjective mens rea. At the same time, an intent mens rea may still be valuable with respect to crimes of peripheral involvement and other crimes, such as wilful promotion of hatred, in which caution should be exercised before employing the criminal sanction. Knowledge should be defined as the accused’s certain belief that the prohibited consequences or circumstances exist. Recklessness, the lowest form of subjective mens rea, should be defined as an awareness of the risk that the prohibited circumstances or consequences exist but if included it should be a form of subjective fault based on deliberate ignorance and knowledge of the probability, not the mere possibility, that the prohibited act exists. A reformed Criminal Code could probably dispense with wilful blindness.

Negligence is a constitutionally sufficient fault element for most criminal offences. The Court has indicated that it should be interpreted to require a marked departure from the standard of care that a reasonable person would have taken in the circumstances. The Court in Beatty stressed that it was constitutionally necessary to clearly distinguish criminal negligence from civil negligence or the negligence that is presumed when a person or corporation...

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