Objective considerations as evidence for subjective state of mind -
Though mans rea concerns subjective state of mind people generally know and intend the objectively natural consequences of their actions. Thus, where X is an objectively natural consequence of Y, and where the accused did Y, the finder of fact may draw a “common sense inference” that the accused intended X (Buzzanga; Tennant)
Relationship between desire and intent -
The fact that a person who commits a criminal act does so as a result of threats may, for certain offences, negate mans rea required for the offence (R v Steane). More often, however, it will not (R v Hibbert). Rather, the court will examine duress as defense subsequent to establishing mens rea. Determining which is the case involves interpreting the relevant provision – deciding whether, read in its entire context, the provision is intended to allow duress to negate the mans rea (Hibbert)
R v Steane, UKKB, 1947 (429)
FACTS: Steane was in Germany during the war and forced to do news broadcasts for the Nazis, on threat of his family being sent to a concentration camp. He was accused under a wartime regulation which provided, “If with intent to assist the enemy, any person does any act which is likely to assist the enemy…then…he shall be guilty of an offence…”
ISSUE: Did Steane have the intention to assist the enemy? (No.)
Steane’s action was not intentional because he was motivated by the desire to protect his family.
Why? This crime cannot have been intended to capture persons such as Steane.
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R v Hibbert, SCC, 1995 (432)
FACTS: The accused, under threat, lured a victim out of his/her apartment, and the accused’s companion shot the victim in the lobby.
ISSUE: Did the accused have the mans rea for aiding under 21(1)(b) such that he is guilty of attempted murder (citation)? (no)
The defense of duress does not negate the mans rea for aiding under 21(1)(b)?
Why? The CC aiding provision cannot have been intended to only include persons who wished to aid.
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Distinguishing intention from motive (R v Lewis)
Intent: the exercise of a free will to use particular means to produce a particular result
Motive: ulterior intention -- that which precedes and induces the exercise of the will
Motive is legally irrelevant to criminal responsibility.
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As evidence, presence of motive is relevant in proving identity or intent
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“he had reason to do it, therefore he must have did it and meant to do it”.
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Conversely, absence of motive helps raise a reasonable doubt as to identity or intent
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“he had no reason to do it, therefore, he may well not have done it or not meant to do it”
Intent (“willfully”)
Where the mens rea for an act or consequence requires intent, generally, a person intends a consequence either if: a) she is resolved to bring about that consequence or b) she is certain or substantially certain that the consequence will follow from her act, even if which she performs her act to achieve some other purpose, rather than the consequence (Buzzanga)
Recklessness: For certain offences, a mens rea intent requirement may extend to recklessness. Recklessness involves engaging in conduct even while knowing that this conduct creates a risk that the prohibited result will occur. (Sansregret)
Actual knowledge / “knowlingly”
Where the mens rea requires that the accused committed an act “knowingly” in respect of some fact or circumstance, generally, this implies either having no doubt concerning a fact, or suspecting that a fact is probably true (Theroux).
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Willful blindness: for certain offences, a mens rea actual knowledge requirement may extend to willful blindness. Willful blindness arises where a person has become aware of the need for some inquiry but declines to make the inquiry because he does not wish to know the truth (Sansregret; Briscoe)
R v Buzzanga, ONCA, 1979
FACTS: B and D published inflammatory pamphlets about the Francophone population in their ON community. They testified the pamphlets were satirical, intended to show the absurdity of the arguments against a French high school, and therefore lead to its being built. 281.2(2) [hate speech – now 319] was worded, at the time, as “willfully promotes hatred.”
ISSUE: Did the accused “willfully promote hatred” such that they are guilty of hate speech (now CC 319)? (maybe – new trial)
They willfully promoted hatred if they were resolved to bring about hatred or if they forsaw hatred was certain or substantially certain.
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R v Theroux, SCC, 1993 (442)
FACTS: The accused accepted deposits having told investors that he had purchased deposit insurance when in fact he had not.
ISSUE: Is the accused guilty of fraud (CC 380(1))? (unclear).
Elements of Fraud
Actus reus:
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Prohibited act: deceit, falsehood, other dishonest act
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Prohibited consequence: Depriving another of what is or should be his
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Mans rea:
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Subjective knowledge of the prohibited act -- knowing the act constituted deceit, falsehood, or some other dishonest act.
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Subjective knowledge of the prohibited consequence – knowing that the act might deprive another of what is or should be his.
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R v Sansregret, SCC, 1985 (447)
FACTS: S’s girlfriend consented to sex in order to stop S from beating her.
ISSUE: Was S willfully blind to the fact that his girlfriend’s consent was vitiated by fear (CC 265(3)(b) such that the “accused’s belief as to consent” defense (CC 265(4) fails and he is guilty of sexual (CC 271) assault (CC 265(1))? (Yes)
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