The Fault Element, or Mens Rea

• Author: Kent Roach
• Pages: 184-239

184

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 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.

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 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.

CR IMIN AL LAW186

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.”