To be found guilty of a criminal act, there must be both harm and degree of fault.
What is the fault requirement? Look to the wording of the provision in consultation with the court’s interpretation.
Historically, mens rea was moral blameworthiness. Now, descriptive mens rea describes a level of fault.
Rationale for having mens rea Martineau, Re 94(2) MVA, Creighton
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The criminal law ought not to punish people who are morally innocent, so we require a degree of fault/moral blameworthiness to justify the imposition of a criminal sanction.
Mens rea: the act is not criminal unless the mind is criminal as well
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No settled definition for this guilty mind concept
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CC does not use this word
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Does not, as a matter of statute, prescribe mens rea
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Uses language to capture different degrees of fault
Assault: s.265 - “intentionally”
s.267 with a weapon, nothing expressed in the language about intentionality
s.322 fraudulently without color of right takes… with intent
s.430 “willfully”
s.433 “willfully, recklessly”
Levels of Fault -
Full mens rea
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For which the accused subjectively knows what they are doing
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Words used in the code with intent, with knowledge, recklessness, willful blindness
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Subjective or objective mens rea
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Criminal negligence
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Objective fault will suffice
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S.220, 222(5)
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Criminal negligence given meaning in Tutton, Wait
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“marked and substantial departure from the conduct of a reasonable person, which shows wanton and reckless disregard for the lives and safety of others”
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Penal negligence – eg dangerous driving
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Objective mens rea
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Regulatory offences
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Strict liability
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Absolute liability
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Strict liability: Here the crown proves actus reus, the defence has the ability to obtain an acquittal if they establish due diligence
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Reverse onus
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Wholesale Travel Case
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Reverse onus in this type of case is constitutionally compliant
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No mens rea requirement
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Absolute liability cases
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Crown can obtain conviction with proof of actus reus alone
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There cannot be a disposition which involves imprisonment if you are dealing with an absolute liability offence
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Reference re: 94(2) of the MVA
What does mens rea apply to?
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Applies to all elements of the actus reus (Sault St Marie)
is there express language of mens rea? If yes, it stands, subject to the following constitutional issues: -
Stigma offences must have objective mens rea (Villancourt, Martineau)
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There cannot be a true crime with strict or absolute liability (Creighton, Hundal)
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There cannot be loss of liability as a result of absolute liability (BC Motor Vehicle + Pontes)
if there is no express language of mens rea: Is the offence a true crime or a regulatory offence?
A. If it is a true crime full mens rea should attach: -
If it is in the code, it is a true crime unless contrary intent, and requires subjective mens rea (Buzzanga)
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*if the offence is anywhere else, then you have to look at it and make an assessment – eg Controlled Drugs & Substances Act
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eg. the nature and severity of the penalty suggest true crime ex. 2+ in jail (Sault St Marie), or the nature of the crime is bad in itself, in the CDSA – Beaver the MR is presumably subjective.
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Full mens rea is defined in Sault St Marie “is where the accused acts with intention, recklessness, or knowledge, or is willfully blind”
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We require it because with true crimes there are higher penalties
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Crown must prove that the accused ACTUALLY knew/intended.
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Roy 2012 – charge of dangerous driving causing death.
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Trial judge looked at driving pattern of accused, and inferred mens rea on the basis of actus reus
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Court said that was too easy, you can’t do that
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Before we make a finding of what was happening in the mind of the accused, require the court to MAKE A MEANINFUL ENQUIRY.
A.D.H. SCC 2013 ADH TEST, rebuttal of full mens rea presumption -
Woman did not know she was pregnant, gave birth in Walmart bathroom, and left child in toilet because she thought it was dead. Charged under s.218 which is silent on MR.
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Held: upheld the presumption of subjective mens rea for true crimes where no mens rea is specified. BUT this presumption CAN be rebutted when the language, the purpose, the context, and the scheme of the offence suggest that parliament intended an objective standard.
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If successful, mens rea requirement will be objective mens rea, easier to prove objective fault.
5 types of objective fault crimes (clear intent from parliament) -
1. Offences that use the word “dangerous”
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2. Offences that use the word “careless”
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3. Predicate offences (embedded/included offence eg. Assault with/causing…) objective will apply to the subjective predicate.
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4. Criminal negligence offences (“wanton and reckless disregard…”)
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5. The duty based offence (eg. To provide the necessaries of life)
not an exhaustive list
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Application: the words (scheme) are all suggestive of subjective mens rea (willfully, abandon, expose). Text: suggests actions taken with knowledge of their consequences are punishable (no reference to “careless” or “reasonable”)
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Being a child protection act is not enough to import objective fault standard. The evidence did not support subjective mens rea and she was acquitted.
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