The Fault Element, or Mens Rea

• Author: Kent Roach
• Pages: 192-251

192

CHAPTER 5

THE FAULT ELEMENT,

OR

MENS REA

Generic references to mens rea are confusing because each dierent

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 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 ea193

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 standards 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 Parliament has long resisted reform proposals

to def‌ine fault elements and provide for residual fault rules.

A. CONCEPTUAL CONSIDER ATIONS

In order to explain the fault element of any criminal oence 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 oence; 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 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 harm. 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 constitu-

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 abstract but must

be related to certain consequences or circumstances. As McLachlin J

has stated,

Typically, 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 volunta ry act — intention to cause deat h, or reck-

less and wilfully blind persistence in conduct which one knows is

likely to cause death.3

3 R v Théroux,[1993] 2 SCR 5 at 17 [Théroux]. This is not an absolute r ule, as seen

in her own majorit y judgment in R v Creighton,[1993] 3 SCR 3 [Creighton] an d

discus sed below at note 5.

CRIMIN AL LAW194

On this principle, a person is not guilty of assaulting a peace ocer in

the execution of their duties unless the accused has the mens 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 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 oence,” as discussed above. Nevertheless, a major-

ity in R v Creighton concluded:

It is important to distinguish between criminal law theory, which

seeks the idea l of absolute symmetry between t he actus reus and mens

rea and the const itutional requirements of the Charter . . . .

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

an oence 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 sucient 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. Oences that do not require

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

called oences of partial 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 driving causing

death and sexual assault 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.”