The Fault Element, or Mens Rea

• Author: Kent Roach
• Pages: 184-239

184

CHAPTER 5

THE FAULT ELEMENT,

OR

MENS REA

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 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 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.2 As a result, the fault element must

often be inferred by the court s from the legislative def‌inition of each sep-

arate offence. This means that criminal offences that may appear at f‌irst

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

fault. In some cases, court s will require the proof of fault in relation to all

1 R v Tolson (1889), 23 QBD 168 at 185 (CCR) [Tolson].

2 But see Criminal Code, RSC 1985, c C-46, ss 433 and 436 [Code], for clear def‌in i-

tions of separ ate offences of intentional and negl igent arson.

The Fault Element, or Mens R ea185

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 departure

from standards of reasonable care in order to distinguish criminal from

civil 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 criminal offence accurately,

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

which the fault element is directed, including its 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 mens rea for murder requires at least

subjective knowledge that the victim would likely die. Similarly, stat-

ing that the me ns rea of manslaughter is objective tells only part of the

story. The fault is objective foreseeability of bodily harm. The degree of

negligence should also be explained, as should who is the reasonable

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 presumptions of particular

forms of mens 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 abstract but must

be related to certain consequences or circumstances. As McLachlin J

has stated,

Typ ica lly, mens rea is concerned with the consequences of the pro-

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

consequences of the voluntary act — intention to cause death, or

reckless and wilfully blind persistence in conduct which one knows

is likely to cause death.3

3 R v Théroux (1993), 79 CCC (3d) 449 at 458 (SCC) [Théroux]. This i s not an

absolute rule, as s een in her own majority judgment i n R v Creighton (1993), 83

CCC (3d) 346 (SCC) [Creighton] and discuss ed below at note 5.

CRIMIN AL LAW186

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

the execution of his or her duties unless the accused has the mens 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 Parliament 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 that the criminal law “has trad-

itionally aimed at symmetry between the mens rea and the prohibited

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

ity in R v Creighton concluded:

It is important to distinguish between criminal law theory, which

seeks the ideal of absolute symmetry between the actus reus and

mens rea and the constitutional requirements of the Charter . . . .

I know of no authority for the proposition that the mens rea of

an offence must always attach to the precise consequence which is

prohibited as a matter of const itutional necessity.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 crime was causing

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

a fault element in relation to all aspects of the actus reus are sometimes

called offences of partial intent, constructive crimes, or crimes based

on predicate offences. The Supreme Court has indicated that requir-

ing fault elements for every element of an offence “would bring a large

number of offences into question” including impaired causing death

and sexual assault causing bodily har m. It has r uled that it is generally

acceptable “to distinguish between criminal responsibility for equally

4 R v Hess(1990), 59 CCC (3d) 161 (SCC), dis cussed in Chapters 2 and 6.

5 Above note 3 at 378–79. In R v DeSousa, [1992] 2 SCR 944 at 966 [DeSousa], the

Court noted that a nu mber of offences punish a person more s everely because

of the consequence s of his or her actions even though the re is no fault require-

ment with regar d to those aggravating con sequences. Examples cite d included

“manslaught er (s. 222(5)), criminal negligence c ausing bodily har m (s. 221),

crimin al negligence causing deat h (s. 220), dangerous operat ion causing bodily

harm (s. 249(3)), dangerou s operation causing death (s. 249(4)), impair ed driv-

ing causing b odily harm (s. 255(2)), impaired dr iving causing death (s. 255(3)),

assault cau sing bodily harm (s. 267(1)(b)), aggravated ass ault (s. 268), sexua l

assault cau sing bodily harm (s. 272(c)), aggravat ed sexual assault (s. 273),

mischief c ausing danger to life (s. 430(2)), and arson c ausing bodily harm (s.

433(b)). As noted by Profes sor Colvin, “[i]t would, however, be an er ror to sup-

pose that actus reus and mens rea always match in th is neat way.”