Kinds of Subjective Intent (Fault)

4 Kinds of Subjective Intent (Fault)

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  1. Intention
  
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  2. Recklessness
  
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  3. Willful Blindness
  
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  4. Knowledge
  

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  the accused were charged with willfully promoting hatred against francophones. The threshold was “willfully promotes hatred”.
  
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  Held: Willful: does not have a fixed meaning, but in the context of s.281.2(2) it means with the intention of promoting hatred, and does not include recklessness. It must have been a conscious purpose to promote hatred, or if the promotion of hatred was certain or morally certain to result from their actions. The accused’s testimony was weighed with other evidence to determine what the particular accused intended, not what a reasonable person intended.
  
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  If it is in the code, presumption that it requires full MR.
  

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  Where liability is subjective, the reasonable person standard is only relevant so far as it is evidence from which a conclusion can be drawn that the accused anticipated the same consequences.
  
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  This is called a “common sense conclusion” and can be drawn if the accused is sane and sober
  

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  Steane
  

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  Someone forced accused to lure friend into lobby where he was shot. Accused charged with attempted murder, and he relied on defence of duress.
  
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  Held: purpose does not equal desire: “for the purpose of aiding” does not require that the accused actively view the offence as desirable in and of itself, therefore is not negated by duress.
  

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  “highly probable” is not sufficient to constitute indirect intent (Buzzanga)
  

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  Sansregret 1985 SCC
  
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    Accused charged with several offences, one was rape with the victim’s consent (extorted by fear or threats). The relationship had ended, and then the accused broke into the victim’s home twice. She reported both events to the police, after the first incident the accused was informed that the consent was the product of fear. He went on to do it a second time. He was arrested in relation to the second incident.
    
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    Held: distinguishing recklessness and civil negligence: negligence is tested by the objective standard of the reasonable person, recklessness must also have an element of the subjective (“one who sees the risk and takes the chance”)
    
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    (this case predates changes to the sexual assault provisions)
    

3. Willful Blindness

Sansregret 1985 SCC: the law presumes knowledge on the part of the accused. A person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth.
Duong 1998 ONCA

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  accused charged with being an accessory after the fact to a murder. He knew that Lam was in trouble for murder (it was in the newspaper), but allowed him to hide in his apartment for 2 weeks.  s.23(1) requires knowledge of the offence the person was party to.
  
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  Held: the accused’s statements suggested only that he suspected Lam’s connection to the murders. A finding of knowledge would be speculation. It could not be said that he was willfully blind to the fact that Lam committed a murder.
  

Briscoe 2010 SCC

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  Accused drove a group to the scene, provided a weapon, and held the victim. He maintains that he didn’t have actual knowledge or intent to participate in the murder. Charged with 1^st degree.
  
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  Held: willful blindness can substitute for actual knowledge whenever knowledge is a component of the mens rea.
  
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  Trial judge erred in not considering willful blindness, accused had a strong suspicion of what would occur  “deliberate ignorance”
  

Note: must consider what the accused knew or if the accused was suspicious.

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  R v. Curry 1975 ONCA: no basis to suspect it was unlawful activity (the accused honestly didn’t know). The court looked to life history  he was uneducated etc.
  

4. Knowledge: includes willful blindness, otherwise just knowledge

B. Contrary intent to a true crime needing subjective fault: criminal negligence and penal negligence.

 there is no general constitutional principle requiring subjective foresight for criminal offences (Hundal)

 with objective mens rea, the mental fault lies in the failure to direct the mind to the risk that a reasonable person would have seen, it is concerned with what SHOULD have been in the mind of the accused (Creighton)

THREE KINDS OF OBJECTIVE FAULT

1. Criminal Negligence: defined in s.219  everyone is criminally negligent who in doing anything or in omitting to do anything shows wanton and reckless disregard for the lives and safety of others (and a marked departure from the reasonable person standard).

 HIGH STANDARD

2. Penal Negligence: marked departure from the reasonable person standard. Less than criminal negligence, but higher than civil negligence.

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  Eg. Careless use and storage of a firearm, dangerous driving, arson by negligence
  

3. Strict Liability: Crown must prove the actus reus elements of the offence beyond a reasonable doubt but there is space for the defendant to advance a defence of due diligence. Crown can succeed on proof of actus reus alone.
Issue: to what extent should we individualize the reasonable person for objective MR? Should we give the person some of the characteristics of the accused to try to import their world view, make sense of their judgment?
Note the progression:

R v Tutton and Tutton 1989 SCC: accused of manslaughter through criminal negligence causing death of their son. Because of religious views they refused to administer insulin to their diabetic son.

 reasonable person, or a reasonable person with those beliefs?

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  Held: objective test, but not done in a vacuum (consider surrounding circumstances)
  
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  SCC split 3-3
  
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    Subjectivists vs objectivists
    
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    Issue was undecided
    

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