The Fault Element, or Mens Rea

AuthorKent Roach
Generic references to men s rea are confu sing because each dierent
crime has a specif‌ic fault element that must be related to the actus reu s
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 re a” 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 because Parliament has
not clearly and consistently def‌ined fault elements such as “purposely,
“knowingly,” “reckles sly,” or “negligently” or specif‌ied what particul ar
fault element applies for each oence.2 As a result, the fault element must
often be inferred by the court s from the legislative def‌inition of each sep-
arate oence. This means that cr iminal oences that may appear at f‌irst
reading to have no fault element may actual ly be interpreted as requiring
fault. In some cases, courts will require the proof of fault in relation to
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-
itions of separ ate oences of intentional and neglige nt arson.
The Fault Element, or Mens R ea 193
all aspects of the prohibited act and in some cases they will not. Refer-
ences in the Criminal Code to c arelessness, dangerousness, or negligence
are misleading bec ause the courts now require proof of a marked depar-
ture from standard s of reasonable care in order to distinguish criminal
from civil negligence. The fault element for crimes is often uncerta in 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 oence accurately,
it is necessar y to specify (1) the circumstances and consequences to
which the fault element is directed, including its relation to the actus
reus of the oence; 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, stati ng
that the me ns rea of manslaughter is objective tell s only part of the story.
The fault is objective foreseeability of bodily ha rm. The degree of negli-
gence should also be explained, as should the identit y of the reasonable
person used to apply the objective fault or negligence standard.
It is also important to understand the dierences between const itu-
tional requirements and common law pre sumptions 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 establish-
ing 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 circumstance s. As McLachlin J
has stated,
Typically, men s rea is concer ned with the consequence s 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 deat h, or reck-
less and wil fully blind persi stence in conduct which one knows is
likely to cause de ath.3
3 R v Théroux, [1993] 2 SCR 5 at 17 [Thérou x]. This is not an absolute r ule, as seen
in her own majorit y judgment in R v Creighton, [1993] 3 SCR 3 [Creig hton] an d
discus sed below at note 5.
On this principle, a person is not guilty of assaulting a pe ace ocer in
the execution of their duties unless t he accused has the me ns rea for
assault and subjective knowledge that the person is a peace ocer. Sim-
ilarly, the Court classif‌ied the old oence of statutory rape a s absolute
liability becaus e Parliament had excluded fault in relation to a crucial
aspect of the actus reu s, 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 oence,” as discussed above. Nevertheless, a major-
ity in R v Creighton concluded:
It is important to di stinguish bet ween criminal l aw theory, which
seeks the idea l of absolute symmetry between t he actus reus and mens
rea and the const itution al requirements of the Char ter . . . .
I know of no authority for the proposit ion that the men s rea of
an oence must always attach t o the precise consequence wh ich is
prohibited as a matter of const itutional necess ity.5
In the result, McLachli n J held that objective foresight of the risk of
bodily harm was a sucient 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. Oences t hat do not require
a fault element in relation to all aspects of the actus reus are sometimes
called oences of parti al intent, constructive crimes, or crimes based
on predicate oences. The Supreme Court has indicated that requir-
ing fault elements for every element of an oence “would bring a large
number of oences into question” including impaired driv ing causing
death and sexual a ssault causing bodily harm. It has ruled that it is
generally acceptable “to distingui sh between criminal respon sibility for
4 R v Hess, [1990] 2 SCR 906.
5 Above note 3 at 378–79. In R v DeSousa, [1992] 2 SCR 94 4 at 966 [DeSousa], the
Court noted that a nu mber of oences punish a person more se verely because
of the consequence s of their actions even though the re is no fault requirement
with regard to t hose aggravating con sequences. Examples cited i ncluded
manslaughte r (s. 222(5)), criminal negligence c ausing bodily har m (s. 221),
crimin al negligence causing deat h (s. 220), dangerous oper ation causing bod-
ily harm (s. 249(3)), dan gerous operation causing deat h (s. 249(4)), impai red
drivin g causing bodily har m (s. 255(2)), impai red driving causi ng death (s.
255(3)), assault causi ng bodily harm (s. 267(1)(b)), aggravated assau lt (s. 268),
sexual a ssault causing bodily h arm (s. 272(c)), aggravated sexual a ssault (s.
273), mi schief causing danger to l ife (s. 430(2)), and arson causing bodil y
harm (s. 433(b)). As noted b y Professor Colvin, “[i]t would, however, be an
error to suppose t hat actus reus and me ns rea always match in t his neat way.”

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT