CRM 200 Lecture Notes - Lecture 4: Actus Reus, Mens Rea, Dangerous Driving
3 May 2018
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Lecture 4: Mens Rea I
Introduction
• Each crime has a specific fault element that must be related to the actus reus of the
specific crime
• Saying crime requires mens rea isnt enough
• Need a speific subjective fault element = specific form of subjective fault
element. eg. min requirement of murder = subjective knowledge of death
• Fault element must often be inferred by courts from the legislative definition of each
separate offence
• Based on the crim definition in the criminal code
• Words signal the required level of fault
• So called “defences” of mistake of fact and intoxication
• These are not full defences under the law
• Not full excustory
• They are situation/cirsumstances that goes to ward making the fault element
harder to prove
The Relation of the Fault Element to the Prohibited Act
The fault element typically (but not always) must be related to certain
consequences
or circumstances
• i.e. offence - Assaulting a police officer in the execution of their
duties. The person must have the required fault element for the assault
and they must also have the required knowledge that the person they
are assaulting is a police officer
R. v. Creighton
(1993)
• Example of the case where the fault element has not perfectly related
to the consequences and circumstances
• Creighton charged with manslaughter under Section 225(5)(a)
• Actus Reus of the offence of manslaughter is causing death
• The fault element of manslaughter is the objective foreseeability of
harm (not death)
Section 222(5)(a)
• There will be cases where the fault element will not be the same as
actus rea. Its not unconstitutional that there's not an exact matching up.
Mens Rea
extending
beyond the
commission of
the offence
• Attempts in general
o Fault element that extends beyond the commission of the offence
o I.e. Attempted murder – fault element is the intent to kill, the
Actus Reus isn’t actually carried out because they weren’t actually
killed
• Ex. Discharging a fire arm wit hthe intent to wound. Requires fault
elemet of intent, don’t require the completeed actus rea of the crime
(doesn’t have to be actully wounded and still can be applied. )
find more resources at oneclass.com
find more resources at oneclass.com
Common Law Presumptions of Mens Rea
Supreme Court has been reluctant to constitutionalize subjective mens rea
for all but the most serious crimes.
• Usually the fault element is clear, but sometimes its missing
or ambiguous. Therefore falls on the court to figure out what
the fault element for that defence is
• They do it when there is an absence of clear legislative
R. v. Beaver
(1957)
• Charged with possession of drug
• Claimed they didn’t know what they process was indeed a drug
• Beaver argued that he didn’t’t have the knowledge that what he possess
was a drug
• There was an absence of legislation design, the supreme court said that it
would be open for courts to add in a fault element to the drug.
• Todays standard: case law precedent
• Require the crown to prove that what the person possess was a bad drug
• Retrial was ordered and that case stand precedence for all drug cases
today.
• Possession of drugs, used the highest fault element of subjective
o A person was caught with substances and charged with possession
of narcotics and he argued that he didn’t know the substances were
narcotics and that they were harmless, at the time there was no fault
element.
o The court said that they are instituting a minimum fault evidence of
knowledge.
o The court said pg.176”” …
R. v. Sault Ste.
Marie (City)
(1978):
• Unless parliament clearly indicates otherwise, if a fault element was
missing, courts should presume that criminal offences require some form
of subjective Mens Rea
Criminal offences – carry harsh penalty – requires fault elements.
Unless the parliament has indicated otherwise, the court can insert an fault
element.
• Absolute liability offence is an example where the parliament
states that these are the offences where fault element is not
requires.
find more resources at oneclass.com
find more resources at oneclass.com
• Any driving rules are basically is an absolute. Just have to
prove actus reas. Don’t mean means rea.
Constitutional Requirements of Mens Rea: Requirements of
Subjective Fault in Relation to Prohibited Act for Special
Stigma Crimes: Murder, Attempted Murder, and War
Crimes
• Subjective mens rea has only been required under section 7 of
the Charter for murder, attempted murder and war crimes.
Supreme Court
has ruled that
subjective mens
rea is not required
for many other
crimes:
• R. v. DeSousa (1992)
o Cause bodily harm not require subjective fault element
• R. v. Hundal (1993)
o Dangerous driving not require subjective fault element
• R. v. Creigton (1993)
o Unlawful act man slaughter - not constitutionally require
subjective fault element
• R. v. Finlay (1993)
o Careless use of a fire arm = not require subjective fault
element
What is it that
distinguishes
murder, attempted
murder and war
crimes?
• The punishments associated with these crimes
• Maintain distinction between intentional and unintentional killing
. Carry serious penalty
. Doesn’t allow judges to how discretion
. Intentional and unintentional
Constitutional Requirements of Mens Rea: Principles of
Fundamental Justice as Outlined in Creighton
The following considerations are relevant in determining
constitutional requirements of mens rea:
1. The stigma attached to
the offence, and the
available penalties
requiring a mens rea
reflecting the particular
nature of the crime;
• Constitutional required to have a fault element which are
harder to prove because the punishment is harsh
2. Whether the punishment is
proportionate to the moral
• can a sentencing judge exercise discretion
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
The relation of the fault element to the prohibited act. The fault element typically (but not always) must be related to certain consequences or circumstances i. e. offence - assaulting a police officer in the execution of their duties. Mens rea extending beyond the commission of the offence: there will be cases where the fault element will not be the same as actus rea. Its not unconstitutional that there"s not an exact matching up: attempts in general, fault element that extends beyond the commission of the offence, i. e. Attempted murder fault element is the intent to kill, the. Actus reus isn"t actually carried out because they weren"t actually killed: ex. Discharging a fire arm wit hthe intent to wound. Requires fault elemet of intent, don"t require the completeed actus rea of the crime (doesn"t have to be actully wounded and still can be applied. )
