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- Chapter 5 - The Fault Element, or Mens Rea
The fault element, or mens rea
Author | Kent Roach |
Profession | Faculty of Law and Centre of Criminology. University of Toronto |
Pages | 163-164 |
Page 163
Generic references to mens rea are confusing because each different crime has a specific fault element that must be related to the actus reus of the specific crime. In 1889 Stephen J. indicated that mens rea exists only in relation to particular definitions of crime, so that, "Mens rea" means in the case of murder, malice aforethought; in the case of theft, an intention to steal; in the case of rape, an intention to have forcible connection with a woman without her consent; and in the case of receiving stolen goods, knowledge that the goods were stolen. In some cases it denotes mere inattention. For instance, in the case of manslaughter by negligence it may mean forgetting to notice a signal. It appears confusing to call so many dissimilar states of mind by one name.1In Canada, confusion about mens rea continues because Parliament has not clearly and consistently defined fault elements such as "purposely," "knowingly," "recklessly," or "negligently" or specified what particular fault element applies for each offence.2As a result, the fault element must often be inferred by the courts from the legislative definition of each separate offence. This means that criminal offences that may appear at first reading to have no fault element, may actually be inter-
Page 164
preted as requiring fault. In some cases, courts will require the proof of fault in relation to all aspects of the prohibited act and in some cases they will not. References in the Criminal Code to carelessness, dangerousness, or negligence are misleading because the courts now require proof of a marked...
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