The Fault Element, or Mens Rea

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology.University of Toronto
• Pages: 169-218

169

CHA PTER 5

THE FAULT ELEMENT,

OR

MENS REA

Generic references to mens rea are conf using because each di fferent

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

of the specif‌ic crime. In 1889 Stephen J. indicated th at mens re a exist s

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 denote s mere 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, confusion about mens rea continues bec ause Parliament has not

clearly and consistently def‌ined fault elements s uch as “purposely,” “know-

ingly,” “recklessly,” or “negligently” or specif‌ied what particul ar 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 that criminal offences t hat may appear

at f‌irst reading to have no fault element may actual ly be interpreted as

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

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

def‌initions of se parate offences of intentiona l and negligent arson.

CR IMIN AL LAW170

requiring fault. In some ca ses, 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 ca relessness, dangerousness,

or negligence are misleading becaus e the courts now require proof of

a marked departure from standards of reasonable care in order to dis-

tinguish cr iminal from civil negl igence. The fault element for crimes

is often uncertain and complex in part because Parliament ha s long

resisted reform proposals to def‌i ne fault elements and provide for re-

sidual fault rules.

A. CONCEPTUAL CONSIDERATIONS

In order to explain the fault element of any criminal 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. Similarly, stating that

the mens rea of manslaughter is objective tells 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 t he reas onable person

used to apply the objective fault or negligence standard.

It is also important to understand the differences between con sti-

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 really 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 stated,

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 de ath, or

The Fault Element, or Mens R ea 171

reckless and w ilfully blind pe rsistence in conduct which one knows

is likely to caus e death.3

On this principle, a person is not guilty of assaulting a pe ace off‌icer in

the execution of his or her duties unless t he accused has the me ns rea

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

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

absolute liability because Parli ament had excluded fault in relation to

a crucial aspect of the actus reus, namely, the age of the girl.4 The fault

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

The Supreme Court has recognized th at the criminal l aw “has tra-

ditionally aimed at sy mmetry between the mens rea and the prohibited

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

ity in Creighto n concluded:

It is important to d istinguish bet ween crimina l law theory, which

seeks the idea l of absolute symmetry b etween the actus reus and

mens rea and the constitutional requ irements 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 necess ity.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 sometimes

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 judgment i n R. v. Creighton (1993), 83

C.C.C. (3d) 346 (S.C.C.) [Cre ighto n] and discus sed below at note 5.

4 R. v. Hess (1990), 59 C.C.C. (3d) 161 (S.C.C.), discus sed in Chapters 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 ac tions even though there is

no fault requireme nt with regards to those ag gravating consequence s. Examples

cited included “ma nslaughter (s. 222(5)), crimina l 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)), aggrav ated sexual

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

bodily har m (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.”