M. The Fault Element, or Mens Rea

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology. University of Toronto
• Pages: 13-15

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A great variety of fault elements are used in criminal and regulatory offences. Sometimes the fault element is specified in the wording of an offence by words such as intentionally, knowingly, recklessly, or negligently. Frequently, however, the courts will have to infer what type of fault element is required. Often a distinction between subjective and objective fault elements is drawn. A subjective fault or mental element depends on what was in the particular accused’s mind at the time that the criminal act was committed. In determining this condition, the judge or jury must consider all the evidence presented, even if it reveals factors, such as the accused’s diminished intelligence, that are peculiar to the accused. On the other hand, an objective fault element does not depend on the accused’s own state of mind, but on what a reasonable person in the circumstances would have known or done.

The criminal law has over the past two decades increasingly accepted objective negligence as a legitimate form of criminal fault. That said, negligence for the purpose of imposing criminal liability and punishment is different than negligence used in private law to require one party to compensate the other. Under the criminal law, the prosecutor

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must establish beyond a reasonable doubt that the accused engaged in a marked departure from what a reasonable person would have done in order to distinguish criminal from civil negligence. Criminal negligence, of course, can result in the accused going to jail whereas civil negligence established in a lawsuit between two individuals will only result in damages being awarded against the negligent person. Personal characteristics of the accused such as age are generally not relevant in applying objective fault standards of negligence, but they may be relevant if they render the accused incapable of appreciating the relevant risk. The courts have also stressed that negligence liability cannot be determined in the abstract or deduced from the commission of the prohibited act. The judge or jury must consider all the circumstances and all the evidence, including any explanation offered by the accused and the accused’s state of mind. That said, the purpose of this process is not, as it is with respect to subjective fault, to determine what was in the accused’s state of mind, but only to determine whether the accused engaged in a marked departure from reasonable standards.

Courts will often presume...