The Fault Element, or Mens Rea

AuthorKent Roach
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 reus
of the specif‌ic crime. In 1889 Stephen J indicated t hat mens rea 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 such as “purposely,
“knowingly,” “reckles sly,” 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 th at 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 ea 185
aspects of the prohibited act and in some cas es 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 rea sonable care in order to distinguish criminal f rom
civil negligence. The fault element for crimes is often uncertain and
complex in part because Parlia ment has long resisted reform proposals
to def‌ine fault elements and provide for residual fault rules.
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 me ns 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 likely die. Sim ilarly, 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, a s should who is the reasonable
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 con sequences 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
reckless and w ilfully blind pe rsistence in conduct which one knows
is likely to caus e 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) [Creighto n] and discuss ed below at note 5.
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 as pect 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 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 R v Creighton 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
called offences of parti al intent, constructive crimes, or crimes based
on predicate offences. The Supreme Court has indicated that requi r-
ing fault elements for every element of an offence “would bring a large
number of offences into question” including impaired causing death
and sexual as sault causing bodily har m. It has r uled that it is generally
acceptable “to distinguish bet ween criminal re sponsibility 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.

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