Chapter Nine: Mens Rea – General Principles

Chapter Nine: Mens Rea – General Principles

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  Before a person may be punished, the person must be shown to have been “at fault.”
  
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  Two Sorts of Fault:
  
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    Subjective Fault: “Mens Rea,” the intention to commit the act in question
    
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    Objective Fault: “Objective liability” or “penal negligence;” the failure to act in accordance with a relevant standard of care
    
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  Eight General Points About Mens Rea:
  
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    1. An intention to perform the actus reus with knowledge of the circumstances
    
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    2. There’s no single mens rea – whatever the guilty mind is as related to the provision.
    
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    3. If an offence is found in the CC, being with the assumption that it is a mens rea offence.
    
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    4. Proving mens rea can be done via direct evidence (e.x. confession) or circumstantial evidence.
    
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    5. Crown must prove actus reus and mens rea beyond a reasonable doubt; if A raises a doubt as to what their mens rea was they are entitled to an acquittal.
    
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    6. Some offences have multi-layered mens rea.
    
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    7. Re Offences involving causation of a consequence: Generally, fault may be established by proving intention to product the consequence, or being “reckless” as to whether the consequence would occur.
    
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    8. Re knowledge of facts: Crown may establish by proving that A in fact knew what the facts were, or by proving that A was “willfully blind.”
    
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  The Crown must establish beyond a reasonable doubt:
  
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    The actus reus of the offence;
    
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    The mens rea for the offence meaning:
    
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      The intention to perform the actus reus, including the intention to perform any consequences that are part of the actus reus;
      
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      Knowledge of the relevant facts/circumstances.
      
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  Because we don’t have access to the accused’s thoughts, we must rely on external evidence. This may take several forms: (Routes to establishing “mens rea”)
  
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    What the accused said relating to his mental state at the time of the offence;
    
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    Any confession or admission;
    
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    Circumstantial evidence including what the accused did before, during and after the offence.
    
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  The reasonable person standard may NOT be used in proving mens rea for criminal offences;
  
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  The accused is entitled to be acquitted if the accused merely raises a doubt about whether he had the requisite mens rea – even if it would have been unreasonable for him not to have thought what the reasonable person would have thought in the circumstances;
  
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  Motive: the purpose/objective reason for committing an act that is not included in the mens rea.
  
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  “Multi-Leveled Mens Rea:” everyone who does X for the purposes of doing Y commits an offence.
  
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    Actus reus is X
    
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    Accused must be proven to have had the intention to do X.
    
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    Must also prove that the accused did X for the purpose of Y.
    
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  Mathe case: the accused committed the actus reus with the mens rea to commit the act, but he did not do the acts for the purpose of stealing and therefore was not convicted of attempted robbery;
  
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  Alternatives to “full mens rea:”
  
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    Willful blindness: (subjective), two elements:
    
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      Awareness of the need for inquiry, AND
      
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      Choosing (deliberately) not to make the inquiry.
      
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    Recklessness: (subjective), two elements:
    
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      1. Awareness of risk, AND
      
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      2. Proceeding regardless.
      
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      Equivalent to “full” mens rea;
      
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      Not objective; subjectively it must be established that the accused had awareness;
      
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      May be statutorily excluded as a route to mens rea;
      
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  Willful blindness applies to knowledge of facts; Recklessness applies to intention to produce consequences.
  
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  Willful blindness is the equivalent of knowledge. To prove knowledge of facts, the crown may establish full knowledge or willful blindness.
  
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  Recklessness CANNOT be used to establish knowledge of facts.
  
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  If the actus reus for an offence involves the production of consequences, then the Crown may establish that the accused intended the consequences either:
  
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    1. Through proof that the accused actually/consciously intended the consequences, OR
    
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    2. Through proof that the accused was reckless.
    
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  EXCEPTION: In some cases, the drafting of an offence may indicate that recklessness cannot be used as a route to proving intention to produce consequences.
  
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  Buzzanga: the Crown could only establish the mens rea relating to the production of the consequences by proof of intention; recklessness was not an alternative route to proving intention to promote hatred.
  
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    To prove intention, the Crown may prove full or conscious intention.
    
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    To prove intention, the Crown may also prove (virtual intention), that the accused was aware of a risk, AND the accused knew that it was substantially certain/ highly likely that the risk would materialize.
    
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  R v Robinson: the judge wrongfully instructed the jury that they “can use an objective element such as people being presumed to mean the natural consequences of their acts;” the real question was one of subjective foreseeability on the part of Mr. Robinson that he would cause bodily harm that he knows was likely to cause death, and is reckless whether death ensues or not or that he meant to cause death.
  
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  R v Walle: CLA (Criminal Lawyer’s Association) proposed that “an instruction which incorporates a ‘sane and sober’ common sense inference should never be given. There is a real danger that juries will misuse the inference to incorporate objective mens rea into a specific intent offence and fail to focus on the accused’s actual intention at the time of his actions;”
  
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    R v Daley: reaffirmed the relevance of the common sense inference in particular circumstances;
    
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    R v Courtereille: It is proper to remind the jury that they may use their common sense with respect to this, even if intoxication is advanced, provided the reminder includes the admonition that the inference is permissive and subject to consideration of the evidence of intoxication.
    
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    “I see no reason for instituting a black and white “thou shall never” rule the CLA is advocating for jury instructions where the accused might be impaired.” – Moldaver, J.
    
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    While trial judges may choose to refer to the “sane and sober” person when instructing a jury on the common sense inference, they need not do so. A simple instruction along the lines that a “person usually knows what the predictable consequences of his or her actions are and the means to bring them about” will suffice.
    
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  Motive: a purpose or intention which may be causally linked to the performance of an act but which does not form part of the mens rea of the offence.
  
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  R v Lewis: an appeal from the COA dismissing the appellant’s appeal against his conviction for murder; appeal dismissed; conviction held
  
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    question was whether the trial judge erred in failing to define “motive,” and in failing to direct the jury as to that concept having regard to the fact that, relative to the appellant, the case for the Crown was totally devoid of such evidence.
    
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    Critical question was whether or not, at the time he mailed the package, he knew that it contained a bomb.
    
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    Motivation was not proven as part of the Crown’s case, nor was absence of motive proven by the defense – therefore, there was no clear obligation in law to charge on motive.
    
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    R v Malanik: summing-up must not be examined microscopically in a critical spirit to make a post facto fault-finding… but solely to determine whether the summing-up as a whole in the light of all the proceedings was such as to enable the jury to appreciate the case before them and their powers and duty and to afford some reasonable assistance to the exercise and performance of them in the case.
    
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  In criminal law, intent and motive are distinct.
  
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    Intent: the mental element, the mens rea, to use a particular means to produce a particular result.
    
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    Motive: that which precedes and induces the exercise of the will; two meanings:
    
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      1) the emotion prompting an act; “D killed P because he was jealous.”
      
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      2) a kind of intention; “D killed P with the motive of stopping him from paying attention to his wife;” this is the sense employed in criminal law.
      
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  Motive:
  
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    Motive is “ulterior intention,” the intention with which an intentional consequence is brought about.
    
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    Motive is irrelevant to criminal responsibility.
    
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    As evidence, motive is always relevant and hence evidence of motive is admissible.
    
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    Motive is no part of the crime and is legally irrelevant to criminal responsibility.
    
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      It is irrelevant to guilt that the defendant had a good motive.
      
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      Existence of motive makes it more likely that the defendant did in fact commit it… all matters of motive are for the jury and are not to be dealt with as matters of law; Motive is never to be confused with intent and is wholly inaccurate to say without motive there can be no intent.
      
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      The cause of the killing is sometimes so hidden in the mind and breast of the part who killed, that it cannot be fathomed, and as it does not require impossibilities, it does not require the jury to find it.
      
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      Absence of evidence suggesting a motive for the commission of the crime charged is a circumstance in favor of the accused.
      
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    Proved absence of motive is always an important fact in favor of the accused and ordinarily worthy of note in a charge to the jury;
    
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      Markadonis v R: While it is not the motive but the intent which is essential, proof of motive becomes of important where the evidence as here against the accused entirely circumstantial.
      
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      R v Ellwood: there is a great difference between absence of proved motive and proved absence of motive.
      
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      R v Imrich: absence of motive would not only have been destructive of the essential averment of an intent to defraud, but also would have removed from the Crown’s case a material fact as part of its proof that the accused was the person who set fire to the premises.
      
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    Conversely, proved presence of motive may be an important factual ingredient in the Crown’s case, notably on the issues of the identity and intention, when the evidence is purely circumstantial.
    
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      Barbour: while the Crown is not obligated to adduce evidence of motive, the presence or absence of motive may be of very considerable importance.
      
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    Motive is therefore always a question of fact and evidence and the necessity of referring to motive in the charge to the jury falls within the general duties of the trial judge to not outline the theories of the prosecution and defense but to give the jury matters of evidence essential in arriving at a just conclusion.
    
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    Each case will turn on its own unique set of circumstances. The issue of motive is always a matter of degree.
    
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  Specific Intent is a part of the multi-leveled, statutorily-dictated mens rea of certain offences.
  
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    “Everyone who does X for the purpose of Y commits an offence.”
    
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    Evidence of intoxication may be admissible for specific intent.
    
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  There is a clear distinction between specific intent offences, where motive is built into the mens rea, and general intent offences for which the Crown need not prove motive or any intention other than to commit the act.
  
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  General Intent: manslaughter, assault, assault causing bodily harm, sexual assault, mischief.
  
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  Specific Intent: murder, attempted murder, theft, robbery, possession of stolen property.
  
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  R v Mathe: appeal from the accused from his conviction for attempted robbery; because attempted robbery is a specific intent offence the Crown must prove that he intended to rob the bank; “the evidence is consistent with a change of heart, but it is at least equally consistent with a complete absence of an intent to steal. The appellant’s subsequent conduct tends to support the latter as being the proper inference to be drawn, no reason was suggested for rejecting that inference or for preferring the inference that he intended to rob.” Conviction quashed. The accused is protected at all times by the presumption of innocence and by the fact that the Crown was under an obligation to prove guilt beyond a reasonable doubt.
  
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    R v Wilkins: the accused did not intend to steal the vehicle (police bike), that is, to convert the property in it to his own use but only to drive it as contemplated by s. 281.
    
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    R v Kerr: the highly intoxicated accused, who removed a 30 lb ashtray, was found to lack the element of intent because of extreme intoxication.
    
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  Herbert v The Queen: appeal from the accused on the count of perjury and an appeal from the crown from the acquittal of obstruction of justice; appellant claimed that he deliberately lied in giving testimony to attract the attention of the judge and tell him about threats made; the trial judge did not allow the accused to complete his evidence; a new trial was ordered; “whatever reasons prompted the respondent to make a deceptive statement, he could not do so in the case at bar without intending to mislead the court;”
  
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  R v Daviault:
  
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    The mental element for various crimes caries from crime to crime and must frequently be implied from the nature of the offence and the wording of the statute; classification of specific and general intent offences has occurred on a case-by-case basis.
    
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    The distinction between general and specific intent should not be applied as if they were rigid statutory standards.
    
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    General intent offences as a rule require the minimal intent to do the act which constitutes the actus reus; proof of intent is usually inferred from the commission of the act; it is seldom, even in cases of extreme drunkenness, that person will lack the minimum degree of consciousness.
    
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    Specific Intent: failure to prove the added element will often result in conviction of a lesser offence for which the added element is not required.
    
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  Recklessness and Willful Blindness: statute permitting, the Crown may have recourse to the doctrine of recklessness or willful blindness.
  
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    Recklessness: involves actual knowledge of a danger or risk and persistence in the course of conduct which creates the danger or risk that the prohibited result will occur.
    
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      If the Crown can prove that the accused was reckless respecting the consequence, the Crown is considered to have proved a state of mind morally and legally equivalent to full mens rea concerning the consequence-statute permitting.
      
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    Willful Blindness: arises where a person becomes aware of the need for some inquiry but declines to make the inquiry because he or she does not wish to know the truth.
    
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      If the Crown can prove that the accused was willfully blind, the Crown is considered to have proven a state of mind morally and legally equivalent to full knowledge of the state of affairs.
      
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  R v Duong: charged with accessory after the fact to a murder; question arose as to whether the appellant was willfully blind as to whether Lam had committed a murder; “I knew I would be in trouble for helping him hide, so I didn’t want to know anymore.”
  
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    Crown had to prove that the appellant knew that Lam was a party to a murder when the appellant agreed to hide him from the authorities and that willful blindness of that fact would suffice to establish the necessary culpable mental state.
    
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    “Admitting that he knew Lam was wanted for murder…. Is a classic case of willful blindness.”
    
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    Argued that the Crown can never prosecute an accessory until the principal has been convicted and all avenues of appeal have been exhausted. Lam has been found by a jury to be guilty of murder beyond a reasonable doubt. He is in jail serving his life sentence. This is good enough for me.”
    
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    Willfull blindness issue: appellant could only be convicted if he knew that Lam had been a party to the murder; Crown argues that it is only necessary to show that the appellant knew or was willfully blind to the fact that Lam had committed a “criminal offence;” appellant argues that willful blindness has no application to this case;
    
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      Where the Crown chooses to charge someone to being an accessory after the fact to murder it cannot gain a conviction based on a more generalized knowledge that the principal had committed some crime;
      
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      R v. Vinette: the Crown had to prove that an accused charged with being an accessory after the fact to a homicide had knowledge of the “unlawful killing.”
      
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      R v Sansregret: willful blindness arises where a person has come aware for the need for inquiry fails to do so because he does not wish to know the truth; the culpability in recklessness is justified by consequences of the risk and by proceeding in the face of it, whereas, in willful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is a reason for inquiry.
      
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      R v Jorgensen: it is well established in criminal law that willful blindness will also fulfill a mens rea requirement.
      

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  R v Lagace: appeal from the accused convicted of fraud over $5000 and possession of stolen property over $5000; appellant was involved in “cleaning” the title of the wrecked vehicles by registering the vehicles in Ontario for the Quebec dealers; appellant holds that he believed the vehicles he had sold had been involved in accidents and repaired; insisted he was unaware that they were stolen; he inquired numerous times to his partner as to whether they were stolen;
  

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  “I see no need to quantify the level of suspicion beyond the recognition that it must be a real suspicion in the mind of the accused that causes the accused to see the need for inquiry.”
  
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  Appellant was sufficiently suspicious to make an inquiry to the owner of the vehicles.
  
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  Argued that the doctrine of willful blindness could not operate as he made an inquiry.
  
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  “Culpability on the basis of willful blindness rests on a finding of deliberate ignorance. An accused who suspects that property is stolen but declines to make the inquiries that will confirm that suspicion, preferring to make instead to remain ignorant is culpable.”
  
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  The nature of the inquiry will be important in determining if the accused remained suspicious and chose to refrain from further inquiry.
  
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  The trier of fact must decide whether the crown has proved beyond a reasonable doubt that despite the inquiry the accused remainder suspicious and refrained from making any further inquiry because she preferred to remain ignorant of the truth.
  
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  R v Sandhu: appeal from convictions for importing heroin into Canada and for possession of heroin for the purposes of trafficking; heroin found in his wallet and inside two jackets; issue left to the jury was whether the appellant had the requisite knowledge; widow testified that her spouse gave her the clothing to give to Sandu; she was unaware the drugs were planted until after he had left;
  
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    Wilfull blindness or recklessness?
    
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    Crown must prove that Mr. Sandu had knowledge of the fact that a narcotic was being imported;
    
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    Jury was not told that willful blindness is the equivalent of actual knowledge, but only that it is different from recklessness. Willful blindness is imputed knowledge.
    
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    R v Zundel: Where an offence requires knowledge on the part of the accused, it is improper to instruct the jury that a finding of recklessness satisfies that requirement.
    
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    R v Havard: “It is not sufficient to say that if a man is reckless and does not care he is just as guilty as if he received the property, knowing at the time that there was something wrong with it; the proper direction is that the jury must take into consideration all the circumstances in which the goods were received, and must say if the appellant, at the time when he received the goods, knew that they had been stolen.”
    
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    The defense of honest belief was not put to the jury. This reinforces the concern that recklessness would be perceived as an extension of willful blindness, which it is not. Judge also failed to relate the facts of the case as to willful blindness. The jury should have been directed to consider in weighing all of the evidence, if there was a point in time while in India the appellant became aware of the need for some inquiry and declined to make it because he preferred to remain ignorant of what Mrs. Kaur was asking him to bring home with him.
    
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    Both convictions should be quashed and a new trial ordered.
    
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  R v Vinokurov: the appellant, the manager of a pawnshop, accepted product that had been stolen; the appellant denied knowing that the items were stolen; the question put to the court was whether or not a conviction could be made under the doctrines of willful blindness or recklessness;
  
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    The onus is on the Crown to prove that the accused knew the property was stolen;
    
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    The trier of fact (Judge) was not persuaded that the accused suspected something and thereby became aware of the need to inquire (thus could not be charged under willful blindness) but did convict based on recklessness noting that the accused must have been “fully conscious of the risk” thus establishing the mens rea requirement;
    
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    A finding that the Crown has failed to establish that a person suspected something and became aware of the need for some inquiry precludes a finding that knowledge of a danger or risk is made out;
    
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    R v Jorgensen: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?
    
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    Convictions quashed – new trial ordered.
    
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  Wilfulness vs. Recklessness: if a criminal offence uses the term “willfully” to characterize the commission of the act, mere recklessness is excluded from the mens rea for that offence, although the mens rea may still be established on proof that the accused had foresight that the consequence was certain or substantially certain to result from the conduct in question.
  
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  R v Buzzanga & Durocher: appeal by the accused from their conviction on a charge of willfully promoting hatred; learned trial judge failed to give appropriate consideration to their evidence on the issue of intent and, in the circumstances, his failure to do so constituted a misdirection; he failed to properly apply the term “willfully”; conviction quashed, new trial ordered;
  
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    An intention to create “controversy, furor and an uproar” is not the same thing as an intention to promote hatred, and it was an error to equate them.
    
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    “Willfully” has been held to mean no more than the accused’s act is done intentionally and not accidentally;
    
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    The fact that s. 281(2) includes the word “willfully” whereas s. 281(1) does not suggests that Parliament intended to limit the offence to the intentional promotion of hatred.
    
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    Where a clear intention to dispense with mens rea is not present, it is to be assumed that mens rea is required.
    
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    As a general rule, a person who foresees that a consequence is certain or substantially certain to follow from an act that he does in order to achieve some other purpose, intends to produce that consequence.
    
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    The word “recklessly” denotes the subjective state of mind of a person who foresees that his conduct may cause the prohibited result, but nonetheless, takes a deliberate and unjustifiable risk of bringing it about. f