B. The Degrees Of Subjective Mens Rea

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

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There are important practical differences among the various forms of subjective mens rea. A person who might not be guilty of acting with the purpose or intent to commit a crime might, nevertheless, have acted with subjective knowledge that the prohibited result would occur. Similarly, a person who cannot be said to have acted with subjective knowledge that the prohibited result would occur may, nevertheless, have acted with subjective recklessness in adverting to or being conscious of a risk that the prohibited result could occur or the prohibited circumstances might be present. Such a person could also be wilfully blind by not inquiring into the prohibited risk, when he or she knows there is need for further inquiry. References to "subjective mens rea" are unhelpful, and the exact degree of subjective fault must be specified.

1) Intent, Purpose, or Wilfulness

The highest level of subjective mens rea is that which requires the accused to act with the intent or purpose to achieve the prohibited result, or to wilfully pursue such a result. An example would be section 229(a)

(i), which prohibits murder where the accused "means to cause . . . death." This high level of mens rea is used relatively infrequently. Common law presumptions and even constitutional requirements of subjective mens rea do not require proof of intent and are satisfied by lower

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forms of mens rea such as knowledge and even recklessness. Where Parliament has specifically used the words "with intent," this will generally exclude lower forms of subjective mens rea such as recklessness.53Proof of purpose is required under the various parties’ provisions in the Criminal Code. As examined in the last chapter, these provisions can make a person guilty of an offence even though he or she did not actually commit the offence and thus it makes sense to require a fairly high level of mens rea. Section 21(1)(b) requires a party to do or omit "to do anything for the purpose of aiding any person" to commit an offence, and section 21(2) requires the formation of an "unlawful purpose." Similarly, attempts require "an intent to commit the offence," and an accessory after the fact must act for the purpose of enabling a known criminal to escape. The more peripheral the accused’s involvement to the completed crime, the more sense it makes to require a higher form of subjective mens rea.

The potential difference between guilty intent and guilty knowledge can be illustrated in cases where the accused knowingly engages in prohibited conduct, but does so for another purpose such as avoiding harm. In R. v. Steane, the accused was charged with assisting the enemy with the "intent to assist the enemy" after he made wartime propaganda broadcasts. The Court of Appeal held that, given the intent required for the offence, it was wrong for the trial judge to have left the jury with the impression that "a man must be taken to intend the natural consequences of his acts." It was possible that Steane acted not with the intent to assist the enemy, but rather with "the innocent intent of a desire to save his wife and children from a concentration camp."54

In R. v. Paquette,55the Supreme Court similarly indicated:

A person whose actions have been dictated by fear of death or of grievous bodily injury cannot be said to have formed a genuine common intent to carry out an unlawful purpose with the person who has threatened him with those consequences if he fails to co-operate.

In that case, the accused was held not to have formed a common intent under section 21(2) to rob a store when he drove the robbers to the store after being threatened at gunpoint. In both cases, the accused certainly acted with the knowledge that his actions would contribute to the prohibited result. The difficult issue is whether the accused acted with the intent or purpose to achieve the prohibited result.

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The Supreme Court in R. v. Hibbert,56has overruled Paquette on the basis that it confused intent and purpose with motive and desire. Lamer C.J. stated that a person, like Paquette, who participates in a robbery because of threats to his life nevertheless forms an "unlawful purpose" under section 21(2) to commit the robbery. His desire or motive of saving his own life does not prevent the formation of the unlawful purpose of intentionally committing the robbery. Similarly, Paquette would act with the purpose of assisting the robbery required under section 21(1)(b) if he intended to drive the getaway car and by doing so assist the robbery. It would not matter to the question of mens rea that Paquette’s desire or motive was to save his own life. The Supreme Court has rejected the idea that intent or purpose under section 21 should be equated with the accused’s desires and motivations. Some caution is in order before applying this ruling to all forms of subjective mens rea. The Court made clear it only reached these conclusions for section 21 in large part because an accused who responded to threats could still claim a common law defence of duress.57Depending on how the offence was structured, the fact that a person acted as a result of threats could in some instances be relevant to the question of whether he or she possessed the mens rea necessary to commit the offence. Thus, a person in Steane’s position could perhaps still argue that he did not wilfully act with an intent or purpose to assist the enemy even though he surely knew that his actions would have that effect.

Knowledge that something is very certain to occur, however, may be equated with an intent or a purpose to achieve the prohibited result. In Buzzanga,58Martin J.A. stated that "as a general rule, a person who foresees that a consequence is certain or substantially certain to result from an act which he does to achieve some other purpose, intends that consequence." Consistent with the presumption of innocence, however, an accused should be allowed to raise a reasonable doubt as to whether he or she intended the consequence, if that is the required mental element.

A requirement that the accused wilfully achieve a prohibited result imposes a high degree of subjective mens rea. In Buzzanga,59the Ontario Court of Appeal interpreted a prohibition against wilfully promoting hatred against an identifiable group as requiring proof that the accused’s "conscious purpose in distributing the document was to promote hatred against that group," or knowledge that the promotion

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of hatred "was certain or morally certain" to result from their actions. This requires knowledge of a much higher degree of probability of the prohibited act than either knowledge that requires that the accused know that the prohibited act is probable or recklessness that requires knowledge that the prohibited act is possible.

In R. v. Docherty,60the Supreme Court stated that the word "wilfully" "stresses intention in relation to the achievement of a purpose. It can be contrasted with lesser forms of guilty knowledge, such as ‘negligently’ or even ‘recklessly.’ In short, the use of the word ‘wilfully’ denotes a legislative concern for a relatively high level of mens rea." In that case, the accused was held not to have wilfully breached his probation order because he believed that what he was doing, sitting in the driver’s seat of a motionless car while drunk, was not a crime that would place him in breach of probation. Parliament subsequently deleted the requirement that the prosecutor prove that the accused "wilfully" breached parole. Instead there is a simple prohibition against breaching parole without a reasonable excuse.61In R. v. Carker (No. 2),62a prisoner was convicted of wilfully damaging public property when he smashed plumbing fixtures in his cell during a prison riot, even though he only performed the act after fellow prisoners had threatened to injure him if he did not. On the basis of Steane and Paquette, it could be argued that Carker did not truly intend to damage public property because he was acting for the purpose of self-preservation. Carker was, however, found to have the necessary mens rea, because wilful was defined for the purpose of the offence as including knowledge or recklessness that the prohibited result would occur.63Carker knew he was damaging public property, even though his ultimate purpose or intent may have been to save his life. Given the Supreme Court’s overruling of Paquette, however, it is possible that a court might dismiss Carker’s desire to protect his own life as a matter of motive or desire not relevant to the determination of his intent.64In another prison case, a majority of the Court in R. v. Kerr65interpreted

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the offence of possession of weapon for a purpose dangerous to the public peace in a manner that seemed to equate purpose with knowledge66and even with recklessness.67It can no longer be maintained with great confidence that a mens rea requirement of intent, purpose, or wilfulness will be sharply differentiated from a requirement of knowledge.

2) Intent, Purpose, or Wilfulness Distinguished from Motive

The criminal law does not require proof of a motive for a crime, and an argument that the accused had no motive or some innocent motivation will not exonerate one who has otherwise committed the crime with the necessary guilty intent. As Dickson J. has stated,

In ordinary parlance, the words "intent" and "motive" are frequently used interchangeably, but in the criminal law they are distinct. In most criminal trials, the mental element, the mens rea with which the Court is concerned, relates to "intent," i.e., the exercise of a free will to use particular means to produce a particular result, rather than with "motive," i.e., that which precedes and induces...

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