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MENS REA
OVERVIEW
Mens Rea + Actus Reus Mens Rea is concerned with consequences of prohibited act (Actus Reus) Ex. Murder as a voluntary act o Prohibited act/Actus Reus = murder o Fault element/Mens Rea = intent to cause death Mens Rea o Focus on subjective capacity of accused ! Could (s)he have foreseen the consequences of the act? ! Did (s)he intend to cause harm? o Why is I didnt mean to not a good defence?

R v Theroux [1993]
! Appellant: Theroux ! Respondent: Crown ! On appeal from the Court of Appeal of Quebec Facts
" " " " " " " Theroux headed building company Received deposits for houses Claimed deposits were insured they werent Believed houses would be built; company went bankrupt Charged with fraud Theroux believed that the build would occur Does this belief negate Mens Rea of fraud under the Criminal Code s 380 (1)(a) 1. Everyone who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretense within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service a. Is guilty of an indictable offence and liable to a term of imprisonment not exceeding 14 years Appeal should be dismissed (Theroux lost) Subjective Mens Rea; willfully misguided clients = knowledge of act and consequences Mens Rea = must have subjective awareness of harm from Actus Reus ; belief is no defence

Issue

Decision Reason Relevance

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Common Law Presumptions Judge made common law When statutes lack clear definitions Upload requirements for Mens Rea o Intentionality, Recklessness, Knowledge, Willful Blindness Criminal offences require Mens Rea in relation to Actus Reus o Unless Parliament indicates otherwise

R v Sault Ste Marie [1978]

! ! ! ! Pre-charter case Appellant: Crown Respondent: City of Sault Ste Marie On appeal from the Court of Appeal of Ontario " Sault Ste Marie contracted a company for a landfill Facts

Issue

Decision Reason Relevance

" Site bordered on creek; led to pollution " Charge: Breach of Ontario environmental regulation " If Mens Rea must be established by Crown in a public welfare case (provincial regulation) " strict liability: public welfare (negligence rather than Mens Rea) civil courts absolute Liability: criminal offences (true crime) " Appeal was dismissed; new trial was ordered " In serious public welfare offences, Mens Rea need not be established by crown, but defence of due diligence " Mens Rea must be established by Crown only in true crime cases (not provincial regulations)

Criminalized Fault Fault element in criminal law is different than in civil law o Mens Rea (especially in criminal law) ! Focus on mental state of the accused ! Requires proof of intent or recklessness o Negligence (especially in civil law) ! Less focus on mental state of accused ! Conduct assessed against objective standard reasonable person ! Question of reasonable care, not intent o Why does this distinction matter? Marked Departure o Civil Norms expectations of society o When should the departure from a certain standard of care be criminalized? -- Marked departure from standard of care o If it is not a marked departure, it is a civil case (private law matter) aka mere departure ex. Slander o If it is a marked departure, it is a criminal case (public law) ex. Murder o Risk of over criminalizing

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R v Beatty [2008]
! Appellant: Justin Ronald Beatty ! Respondent: Crown ! On appeal from the British Columbia court of appeal Facts
" Beattie was driving a pickup truck; crossed center line for no identifiable reason striking an oncoming car, killing all 3 passengers " Charge: Dangerous driving causing death " Momentary lapse enough to warrant criminal charge per Criminal Code s 249 (4) 1. Everyone commits an offence who operates a. A motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place ! Everyone who commits an offence under subsection 1 and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for life. " Appeal allowed, acquittals restored " Need to apply objective standard in contextual manner; no marked departure " Modified objective approach ; wary of criminalizing every departure from norm

Issue

Decision Reason Relevance

SUBJECTIVE MENS REA

Subjective Fault Question of whether accused had guilty knowledge / intent Crown must prove (beyond a reasonable doubt) Question of fact, now law (jury can decide) Subjective Mens Rea Intent, purpose, or willfulness Degrees of subjective Mens Rea matter May not have intent, but might have subjective knowledge of consequences Difference between guilty intent and guilty knowledge o Ex. Accused engages in prohibited act, but does so to avoid harm. Driving Robbers to bank, at gunpoint

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R v Hibbert [1995]
! Appellant: Lawrence Hibbert ! Respondent: Crown ! On appeal from Ontario Court of Appeal Facts
" Hibberts friend Cohen was shot by Bailey " Hibbert said Bailey forced him to call Cohen downstairs " Charge: Attempted murder, reduced to aggravated assault " If duress negates Mens Rea required for Criminal Code ss 21 (1) (b) and 21 (2) " Parties to offence: 21 1. Everyone is a party to an offence who a. Does or omits to do anything for the purpose of aiding any person to commit it; 2. Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence " Appeal allowed, new trial ordered " Mens Rea cannot be negated, but duress defence is okay; " Modified objective approach " Duress defence does not apply if there is a safe out; " Desire is not relevant to intent

Issue

Decision Reason Relevance

OBJECTIVE OF MENS REA

Subjective: (s)he knew it was wrong Objective: anybody in that position would have known it was wrong Use objective standard to establish subjective fault o What would a reasonable person have done? Meant to prevent conviction of accused who might lack knowledge and foresight

Objective Mens Rea For offences less serious than murder Problem with objective standard: o Who is a reasonable person? o Can it be modified to apply without it becoming a subjective standard? Personal characteristics are not important unless they create an incapacity to appreciate the risk (Roach p. 195)

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Ex. Illiteracy leading to mishandling illiterate person in charge of toxic chemicals

Revisit: R v Hibbert & Beatty

In both cases personal characteristics play a role

RECAP
State v. George Zimmerman Zimmerman accused of 2nd degree murder Prosecution (state) in closing statements o Addressing jury o Arguing that prohibited act arises from ill will (intent) Defence: Zimmerman acted in self defence Outcome: Zimmerman found innocent Recap Courts decide fault Questions of face Consequences of prohibited act Requires proof of intent or recklessness Guilty intent / guilty knowledge Objective Mens Rea and personal characteristics