4. Understanding Mens Rea: Objective and Subjective Fault Requirements

In this session, we shift from establishing what an acceptable standard of mens rea is for any given offence to defining in more detail what each fault requirement demands. We will focus in particular on subjective mens rea (intention, knowledge, recklesness, wilful blindness) and objective fault (ie: negligence).

The different types of fault requirements can be ranked from the most subjective to the most objective in the following order: intention, recklessness, willful blindness, criminal negligence, negligence and absolute liability. The first four criteria (intention, knowledge, recklessness and willful blindness) demand a proof of the accused person’s subjective state of mind. In each case the crown must prove that the accused person, given his or her personal situation had a certain degree of awareness of certain elements of the offence (which may vary depending on the offence). An objective fault requirement, by contrast, demand no proof of the accused person’s state of mind. It merely centers on an objective assessment of whether the accused deviated from a norm of reasonable doncut. That the accused person may have deviated from the norm in good faith, without understanding that his or her consequences would bring about the harm in question is irrelevant in this context.

Typically the criminal law tends to be relatively agnostic about which subjective mens rea is required. Intent, knowledge, or recklessness, for example, might all lead to murder. The important thing is that there be subjective foresight. Section 229(a) of the Code at (i) states explicitly “means to cause death” but (ii) says that murder can be committed by someone who causes "bodily harm that he knows is likely to cause (the victim's) death, and is reckless whether death ensues or not". The idea is that as long as you knew that the harm that you cause is likely to cause death, whether you intended for death to result or did not care does not make much of a difference morally. Bear in mind that motive (what you kill or inflict bodily harm for) is irrelevant to mens rea, and typically not an issue that the criminal courts are interested in (except for evidentiary purposes). Knowledge as a mens rea is typical of offences of possession, you need to know for example that stolen property is indeed stolen property or that drugs are indeed drugs. Because these are not result based offenses, there is no need to prove any knowledge of harm. Recklessness refers to the state of mind of someone who knows something (a fact or a the likelihood of a result) but decides that he is indifferent to it. Willful blindness is the final subjective mens rea, the one that comes closest to negligence. It is, one could argue, a self-induced state of negligence, one in which the accused has deliberately decided to ignore something. The accused must be shown to have omitted to consider information that would have made him aware of an element of the actus reus (eg: that the property was not his, that the woman was not consenting, or that death might ensue).

Lowering the mens rea requirement to willful blindness has been a weapon in fighting sexual assault and not letting defendants invoke too lightly a since mistake as to consent. Wilful blindness arises "where 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. He would prefer to remain ignorant." You need, in other words, to prove a sort of flash of awareness although not a full knowledge of an element of the actus reus. Sansregret provides an example. The defendant had been made aware that his ex-partner had taken steps to file a complaint in relation to specific behaviour (breaking into her house at night, menacing her with a weapon, receiving an offer of reconciliation from her, and having intercourse) and nevertheless adopted the same behaviour again a few days later. Knowing that his ex-partner had taken steps to file a complaint made it difficult to claim that it did not occur to him that she might refuse consent, and so the conclusion was that he did not that there was no consent. Barbeau provides another example. The accused person took her husband’s phone calls from an Anglophone business partner because her husband did not speak English. She took down notes of the information communicated by her husband’s business partner on a given transaction the details of which were coded albeit apparently illicit. With this information in mind she was probably willfully blind about the illicit nature of the activities. "Shutting out" information that would allow you to have subjective knowledge of the offence is not a defence.

Note that in practice, one will often on the facts try to prove what actually went through a person's mind by invoking the reasonable person (as in "surely X would have known that this was true, given that anyone in their right mind"). This can sound as if the subjective mens rea is being objectified, but it is not. What matters is still what the accused thought not what the reasonable person would have thought. But because triers of fact are not mind readers, they must sometimes rely on expedients. The key is to not get confused by this to the point of thinking that an objective mens rea has been substituted to a subjective one. If the offence requires knowledge for example, you can never simply say that a person "ought to have known". Someone who "ought to have known" is not someone who has been proven beyond a reasonable doubt to "have known." Failure to distinguish "wilful blindness" from "negligence" may confuse a jury and lead to a retrial, as happened in Barbeau and Tyrell.

Negligence is the typical objective mens rea criterion. The idea is that your behaviour is compared to that of a reasonable person in Canada. Manslaughter is a typical mens rea offence as we saw in the last session. It is common to distinguish between simple negligence which suffices for regulatory offences, and criminal negligence defined in section 219 of the Criminal Code which marks a more significant departure from reasonable behavior by requiring a "wanton or reckless disregard for the lives or safety of other persons." In this case the consequences and stigma can almost compare to other subjective mens rea infractions. The state of mind, although proved objectively, is so far removed from the norm of reasonability that the acts are in and of themselves considered criminal.

Note that when it comes to negligence offences, the distinction between actus reus and mens rea can sometimes be difficult to establish. Someone is guilty of a negligence based offence who acted negligently where the negligence is both a way of appreciating the departure of the act from the standard of behaviour and the element of blameworthiness.

Vermette provides an example of behaviour not sufficiently negligent to qualify as criminal. The accused had an electric defect in his truck and had to stop on a hill in a portion of the road that caused a certain danger to incoming circulation. The accused left the vehicle taking some although not all possible measures to prevent accidents from occurring during his absence. The Court found that not even the actus reus requirement had been fulfilled. Another, recent example is that of a Québec woman who immobilized her vehicle in the middle of the Trans-Canada Highway 20 in order to avoid hitting a family of ducklings crossing the highway. A man and his daughter who were speeding on a motorcycle collided into her car and were killed. The woman's behaviour was found to be a marked departure from the standard of care.

Note that there is an element of context involved, negligence is not to be evaluated "in a vacuum". The reasonable person is the reasonable person "in the circumstances" and not some detached external observer. What the trier of fact is required to do is imagine what the reasonable person would have done in the circumstances. Moreover, the Courts have understood the standard to apply to the person "with the facts" that the accused had in his possession or thought they did and which they relied on to make their decision, at least so long as these facts are sincerely and reasonably believed in. Note that in the Tutton case this potentially gets us into interesting factual debates about whether thinking that your child will be cured by Divine intervention is a reasonable belief.

A more complex controversy to emerge around the question of negligence is by whose standard a person should be evaluated. It may seem harsh to evaluate you by the standards of a the "reasonable person" if you are not capable of being reasonable for some reason. Say, to use an example in Creighton, that there is a sign that says that something is nitroglycerine and highly explosive but that you cannot read and manipulate it as a result, causing an explosion. Should you be judged by the standard of the reasonable person who knows how to read, the person who is reasonably skilled at handling explosives or just any reasonable person? Concerns about punishing the innocent are acute when the fault requirement has been lowered to an objective fault. Of course, the marked departure standard already ensures that not too many people will be caught up in the nets of criminal negligence but some people may be more prone as a result of personal characteristics to err on the side of marked negligence. And what of particularly able or skilled people, should they be held to a higher standard that than of the average reasonable person?

What has emerged is a tendency to "subjectivize" the "objective" test. This is a bit confusing. Certainly the standard remains one of deviation from the reasonable person and is therefore primarily objective. We are not interested in what went through the accused's mind. However, in evaluating what the person should have known or done we will ask the trier of facts to imagine a person with some of the same broad characteristics as the accused, including level of education etc. Incidentally, this works both ways and therefore also for the relatively more skilled person. For example, Creighton is an experienced cocaine consumer and should therefore have been well aware of the potentially lethal consequences of consuming a certain dosage of this drug. The more regulated and licensed an activity (driving of course comes to mind), however, the more the standard is going to be the same for all: if you have a drivers' license this means that the state has basically ascertained that you were capable of fulfilling the obligations of a reasonable person when driving and it will therefore be much harder to claim that you were not negligent (Hundal).

Class preparation:

Sections 219 to 221 of the Criminal Code
Sansregret v. The Queen, [1985] 1 S.C.R. 570
R. v. Creighton, [1993] 3 S.C.R. 3
R. v. Barbeau, 1996 CanLII 6391 (QC CA) (section on facts, and section on wilful blindness)
R. v. Tyrell, 2014 ONCA 617 (CanLII)

R. v. Hundal, [1993] 1 S.C.R. 867
- R. v. Vermette, 2012 MBQB 46 (CanLII)
R. v. Tutton, [1989] 1 S.C.R. 1392
“Trial of Woman Who Treated Son with Holistic Medicine Will Reignite Debate over Alternative Treatments.” National Post. Accessed March 10, 2017.