E. Mixed Subjective and Objective Fault Elements

AuthorKent Roach
ProfessionFaculty of Law and Centre of Criminology. University of Toronto
Pages208-209

Page 208

The classification of fault elements as subjective or objective adds analytical clarity and precision, but it would be a mistake to conclude that a particular offence must necessarily be completely subjective or objective. Some offences contain multiple elements and there is little reason why some of these elements may not require proof of subjective fault while others only require proof of objective fault. Justice L’HEUREUXDUBÉ has stated "that the mens rea of a particular offence is composed of the totality of its component fault elements. The mere fact that most criminal offences require some subjective component does not mean that every element of the offence requires such a state of mind."155A mixed approach allows the fault requirement to be tailored to the particular element of the offence, but it also requires judges and juries to understand clearly that for some elements of an offence they must consider all the evidence that is relevant to determining the accused’s subjective state of mind, whereas for other elements of the same of-fence, all they need to consider is how the accused’s conduct measures up to the reasonable person standard.156Justice Dickson in Pappajohn157argued that it was "unfair to the jury, and to the accused, to speak in terms of two beliefs, one entertained by the accused, the other by the reasonable man." Mixed fault elements require such an approach. De-spite the added complexity,158both the Supreme Court and Parliament have been attracted in recent years to mixed forms of liability so that some elements of the offence require proof of subjective fault while others require proof of objective fault.

In R. v. Lohnes,159the Supreme Court interpreted the offence of disturbing the peace as requiring proof of subjective fault as to the underlying act such as fighting or yelling, but objective fault in relation to the actual disturbance of the peace. Similarly, the offence of conspiracy to unduly lessen competition requires a subjective intention among the parties to agree on a course of action and the objective fault that it is reasonably foreseeable that the course of action would unduly lessen

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competition.160In both of these cases, the objective fault elements dominate and the subjective fault only seems to preclude a conviction if the accused unintentionally and almost accidentally engages in an act that disturbs that peace or lessens competition.

A more integrated blending of subjective...

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