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
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.
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.”
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