The Fault Element, or Mens Rea

• Author: Kent Roach
• Pages: 163-212

163

CHA PTER 5

THE FAULT ELEMENT,

OR

MENS REA

Generic references to mens rea are conf using because each different

crime has a specif‌ic fault element that must be related to the actus reu s

of the specif‌ic crime. In 1889 Stephen J. indicated that m ens re a exists

only in relation to particul ar def‌initions of crime, so th at,

“Mens rea ” means in the ca se of murder, malice aforethought; in the

case of theft, a n intention to steal; in the c ase of rape, an intention

to have forcible connection with a woma n without her consent; and

in the case of receiv ing stolen goods, knowledge that the goods were

stolen. In some cases it denotes me re inattention. For instance, in the

case of man slaughter by negligence it may mean forgetting to notice a

signal. It appear s confusing to call so many d issimilar states of mi nd

by one name.1

In Canada, confus ion about me ns rea continues because Parli ament has

not clearly and consistently def‌ined fault elements such as “purposely,”

“knowingly,” “recklessly,” or “negligently” or specif‌ied what par ticular

fault element applies for each offence.2 As a result, the fault element

must often be inferred by the court s from the legislative def‌inition of

each separate offence. This means t hat criminal offences that may ap-

pear at f‌irst reading to h ave no fault element, may actually be inter-

1 R. v. Tolson (1889), 23 Q.B.D. 168 at 185 (C.C.R.) [Tol son ].

2 But see Criminal Code, R.S.C. 1985, c. C-46, s s. 433 and 436 [Code], for clear

def‌initions of s eparate offences of intentiona l and negligent arson.

CR IMIN AL LAW164

preted as requiring fault. In some cases, courts wil l require the proof

of fault in relation to all aspects of the prohibited act and in some cases

they will not. References in t he Criminal Code to carelessnes s, danger-

ousness, or negligence are misleading because the courts now require

proof of a marked departure from standards of reasonable care in or-

der to distingui sh criminal from civ il negligence. The fault element for

crimes is often uncertain and complex in part because Parliament has

long resisted reform proposals to def‌ine fault elements and provide for

residual fault rules.

A. CONCEPTUAL CONSIDERATIONS

In order to explain the fault element of any crim inal offence accurately,

it is necessary to specify 1) the circumstances and consequences to

which the fault element is directed, including it s relation to the actus

reus of the offence; and 2) the precise fault element required. It is not

very helpful to say the mens rea for murder is subjective. A more pre-

cise approach would be to say the me ns rea for murder requires at least

subjective knowledge that the victim would die. Simil arly, stating that

the mens rea of manslaughter is objective tell s only part of the story.

The fault is objective foreseeability of bodily harm. The degree of negli-

gence should also be explained, as should who is the re asonable person

used to apply the objective fault or negligence standard.

It is also important to understand the differences between consti-

tutional requirements and common law pre sumptions of particular

forms of men s rea and how the so-called defences of intoxication and

mistake of fact are real ly conditions that prevent the prosecutor from

establishing the fault element beyond a reasonable doubt.

1) The Relation of the Fault Element to the Prohibited Act

The fault element does not exist in the air or in the abst ract but must

be related to certain consequences or circumstances. A s McLachlin J.

has st ated,

Typ ica lly , mens rea is concer ned with the conseq uences of the pro-

hibited actus reus. Thus, in the crime s of homicide, we speak of the

consequences of the volunta ry act — intention to cause deat h, or

The Fault Element, or Mens R ea 165

reckless and w ilfully blind p ersistence in conduct which one knows

is likely to caus e death.3

On this principle, a person is not guilty of assaulting a peace off‌icer

in the execution of his or her duties unles s the accused has the mens

rea for assault and subjective knowledge that the person is a peace of-

f‌icer. Similarly, the Court classif‌ied the old offence of statutory rape as

absolute liability because Parli ament had excluded fault in relation to a

crucial aspe ct of the actu s reus, namely the age of the girl.4 The fault ele-

ment should generally extend to all the elements of the prohibited act.

The Supreme Court has recognized th at the criminal law “has trad-

itionally aimed at sym metry between the me ns rea and the prohibited

consequence of the offence” as discussed above. Nevertheless, a major-

ity in Creighto n concluded:

It is important to di stinguish bet ween crimina l law theory, which

seeks the idea l of absolute symmetry bet ween the actus reus and

mens rea and the constitutional requi rements of the Charter . . . .

I know of no authority for the proposition t hat the men s rea of

an offence must always attac h to the precise consequence wh ich is

prohibited as a matter of const itutional necessit y.5

In the result, McLachlin J. held that objective foresight of the risk of

bodily harm was a suff‌icient fault element for the crime of unlawful

act manslaughter, even though the actus reus of the cr ime was causing

death as opposed to causing bodily harm. Offences t hat do not require

a fault element in relation to all aspects of t he actus reus are someti mes

3 R. v. Théroux (1993), 79 C.C.C. (3d) 449 at 458 (S.C.C.) [Théroux]. This is not an

absolute rule, as s een in her own majority judgme nt in R. v. Creighton (1993), 83

C.C.C. (3d) 346 (S.C.C.) [Cre ighto n] and discuss ed below, note 5.

4 R. v. Hess (1990), 59 C.C.C. (3d) 161 (S.C.C.), discus sed in chs. 2 and 6.

5 Above note 3 at 378–79. In R. v. DeSousa (1992), 76 C.C.C. (3d) 124 at 141

(S.C.C .) [DeSousa], the Court noted a numb er of offences punish a person more

severely becau se of the consequences of his or her a ctions even though there is

no fault requireme nt with regards to those ag gravating consequenc es. Examples

cited included “ma nslaughter (s. 222(5)), crimin al negligence causing bodi ly

harm (s. 221), criminal negl igence causing death (s. 220), dangerous operation

causing bod ily harm (s. 249(3)), dangerous operat ion causing death (s. 249(4)),

impaired driving causing bodily harm (s. 255(2)), impaired driving causing

death (s. 255(3)), assault caus ing bodily harm (s. 267(1)(b)), aggravated ass ault

(s. 268), sexual assault cau sing bodily harm (s. 272(c)), aggra vated sexual

assault (s. 273), mischief causin g danger to life (s. 430(2)), and arson causin g

bodily ha rm (s. 433(b)). As noted by Professor Colvin , “[i]t would, however, be

an error to suppos e that actus reus and me ns rea always match i n this neat way.”