Canadian Criminal Law (January 2019) (6) Subjective Mens Rea

Subjective mens rea = the actual state of mind of the accused

● Ordinarily inferred from circumstantial evidence
● Different forms of mental state can be required
o Statutory interpretation of the particular offence to determine what is required
▪ Offence may state mens rea required
▪ If offence does not state, the mens rea required is presumed that intention or ‘recklessness’ will suffice
● Murder & attempted murder requires specific intention only (due to stigma and penalties)
NB: Must be specific as possible when articulating the precise fault element**

To explain a fault element accurately, you must:

1) Specify the circumstances and consequences to which the fault element is directed, including relation to actus reas
2) The precise fault element required
Ex. The mens rea for murder requires at lease subjective knowledge that the victim would die. Or, the mens rea for manslaughter is
objective foreseeability of bodily harm and the degree of negligence should be explained as well as who is the reasonable person used to
apply the objective fault or negligence standard.

 Function of mens rea “to prevent the conviction of the morally innocent—those who do not understand or intend the
consequences of their acts”.

A. Intention and Ulterior Mens Rea

● R v Murray (2000) Ontario
o M was the lawyer on a high profile murder and sexual assault case (Paul Bernardo)
▪ B instructed M to attend his residence and directed him towards video tapes that provide his participation in
the sexual assaults
o M had the tapes in his possession for 17 months and did not disclose their existence to the authorities
▪ M realized that there was a conflict after B insisted the tapes were not to be used in the defence
▪ M then handed the case over to John Rosen and did not tell him about the existence of the tapes
o M sought the advice of a senior lawyer (Cooper) and disclosed the existence of the tapes
▪ C immediately wrote to the law society, who advised him that he should deliver the material to the trial judge
and withdraw from the case
o M was charged with willfully obstructing or attempting to obstruct the course of justice (s139(2))
o Q; When he concealed the tapes, did M have the specific intention (mens rea) to obstruct the course of justice?
▪ The tapes were not communication between client-solicitor (therefore not covered by privilege)
▪ Thus, a lawyer must turn physical evidence over to the prosecution (although no duty to assist the
prosecution)
o H; M did not have the specific intention to conceal the tapes, as he had the intention to use the tapes for B’s defence.
▪ He reasonably believed that he was not obliged to turn the tapes over before trial
▪ He was clear that he intended to disclose the tapes at trial
● R v Roks (2011) Ontario Court of Appeal
o R was a key participate in developing a scheme to burn an unoccupied building on Christmas Eve
▪ Wanted to collect the insurance proceeds
o R’s role was to recruit fire-setters and one died in the fire (R was not at the scene)
o R was convicted on conspiracy to commit arson and second degree murder
▪ Trial judge sentenced R to 10-years imprisonment (conspiracy) and life (murder)
▪ R appealed the murder charge
o H; R was guilty of manslaughter

The Degrees of Subjective Mens Rea

● (1) Intent, Purpose or Wilfulness
o where an accused acts with the intent or purpose to achieve the prohibited result (highest level of subjective mens
rea)
▪ ex. where the accused ‘means to cause death’ (s229(a)(i))
▪ generally required where Parliament uses the words ‘with intent’ in a provision =the highest form of
subjective mens rea is required
o ‘wilful’ stresses intention in relation to the achievement of a purpose (relatively high level of mens rea) (Docherty)
● (2) Intent, Purpose and Wilfulness Distinguished from Motive
o there is no requirement of a ‘motive’ for proof of a crime
▪ thus, if the accused had no apparent motive, this will not exonerate him/her
▪ ‘good motive’ is no defence to intentional crimes (ex. stealing and giving it to the poor) (however, may be
relevant to the exercise of prosecutorial or sentencing discretion)
o nonetheless, evidence of a motive can be relevant to assist in determining if the relevant mens rea was present in the
mind of the accused

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o Terrorism offences (exception to the general rule that motive is not an element)
▪ A political or religious element is a requirement to prove beyond a reasonable doubt

B. Subjective Mens Rea with Objective Features

Objective Features of Fraud
● Actus reus of fraud (s380); [focus on dishonesty]
o (i) prohibited act of deceit, falsehood or other fraudulent means
o (ii) causing deprivation (either actual loss or placing the pecuniary interests at risk)
o Nb: what fraudulent means it determined objectively, what a reasonable person would consider to be dishonest.
● Mens rea of fraud;
o Requires subjective knowledge of the prohibited act & subjective knowledge that the act could result in a deprivation
▪ Need to look at the external acts which constitute the actus reus of the offence
▪ The personal or moral feelings of the accused are irrelevant
● R v Théroux (2000) SCC
o T was a businessman involved in developing a new subdivision
▪ He took deposits from people towards building a house in the area
▪ Told the people that their deposits were insured
● Has posters about the insurance on the wall in his office
▪ T failed to insure the deposits and he honestly believed that the project would be completed and therefore
the deposits would be safe
o The project was not finished and T’s company went bankrupt
▪ Many people completely lost their deposits
o T was convicted of fraud (s380(1))
▪ He appealed
o Q; Does the fact that T honestly believed there was no risk and money was not in danger negate the necessary mens
rea of a charge of fraud (s380(1))?
▪ Actus reus elements of fraud;
● (i) dishonest (proved by proof of deceit)
● (ii) depravation
▪ T had clearly committed fraud
● (i) he was dishonest when he knew that there was no insurance
● (ii) there was a risk of deprivation of the depositors’ funds cause by the deceit
▪ Mens reus elements of fraud
● Subjective awareness that one was undertaking a prohibited act that could cause deprivation in the
sense of depriving another party of property or putting that property at risk [subjectively aware
that you are putting other people’s property at risk]
▪ The fact that T did not think the deprivation would happen does not matter *
● Can draw an inference that T understood his action
o H; T was guilty of fraud, as he knew his statement was false and it can be inferred that he knew that he was placing the
depositors’ money at risk.

Objective Features of Sexual Assault (s71-73)

● Actus Reus of sexual assault;
o (i) assault/touching
▪ intentional application of force, direct or indirect, to another person without their consent OR
attempting/threatening by some gestures to apply force (s265)
o (ii) sexual nature of the assault
▪ determined on an objective basis [need not prove that the accused subjectively intended for it to be sexual],
considering the factors of (Chase);
● The part of the body touched
● The nature of the contact
● The situation in which it occurred
● The words/gestures used
● The intent/purpose of person committing the act
● Sexual gratification of the act
o (iii) absence of consent (s273.1)
▪ ‘voluntary agreement of the complainant to engage in the sexual activity in question’
▪ subjective and determined by reference to the complainant’s internal state of mind toward the touching, at the
time it occurred (Ewanchuk)
● Whether there is a credible complainant?

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● The tier of fact is only 2 conclusions: consent or no consent. If the tier of fact accepts the
complainant’s testimony that she did not consent, no matter how strongly her conduct may
contradict that claim, the absence of consent is established.
● Consent will be negated by the complainant’s fear of the application of force regardless of the
reasonableness of the fear or whether it was communicated to the accused.
● Policy reasons: court is concerned about maximising the physical and sexual integrity of women
and rejecting the rape myths that women implicitly consent to sexual activity unless they protest or
resist or clearly express fear. “No means No”
● R v Chase (1987) SCC
o C was the neighbour of a 15-year-old girl
▪ He entered her home without invitation
▪ The girl’s parents were not home and her grandfather was sleeping
▪ C seized the girl around the shoulders, grabbing her breasts
▪ She fought back and he told her that he knew she wanted it
▪ Prior to C leaving he said he was going to tell everyone that she had raped him.
o R was charged with sexual assault and found guilty at trial
▪ He appealed to the New Brunswick Court of Appeal and was found guilty of common assault only.
o Q; had C’s assault been sexual in nature, to constitute sexual assault?
o H; To determine if an assault is sexual in nature, the context of the assault must be sexual to a reasonable observer.
● Factors to consider;
o The part of the body touched
o The nature of the contact
o The situation in which it occurred
o The words/gestures used
o The intent/purpose of person committing the act
o Sexual gratification of the act
▪ Objectively viewed, C grabbed the girl’s breasts and this constituted a sexual assault
▪ C was convicted of sexual assault
o Nb. the importance of a motive will vary in the circumstances.

C. Knowledge
Knowledge (pp193-195)
● Slightly lower threshold than intent or purpose
o Ex. guilty knowledge of the likelihood of death in s229(c) & s229(a)(ii) is less than the specific intention to cause a
person’s death in s229(a)(i)
o Distinct from ‘what a reasonable person would know’ – only focuses on the accused’s knowledge
o Two elements;
▪ (i) truth
▪ (ii) belief
● belief is the only relevant element to determining a subjective mens rea
● Common mens rea for ‘possession-based’ offences
o There is no possession of heroin if the accused has no knowledge that it is heroin ie. thought it was baking soda
(Beaver)

● R v Ewanchuk (1999) SCC

o E repeatedly made sexual advances to a 17-year-old woman
▪ During a job interview in E’s trailer
▪ She repeatedly said ‘no’ – demonstrating her absence of consent
o The trial judge determined that the girl had given ‘implied consent’
▪ Evidenced by her behaviour and ‘willingness’ to participate
o Q; was the trial judge’s conclusion of ‘implied consent’ consistent with Canadian law?
o H; ‘Implied consent’ does not exist in Canadian law.
▪ The trial judge erred in his application
▪ Cannot accept the complainant’s testimony that she did not consent then treat her conduct as raising a
reasonable doubt about consent
● R v Levigne (2010) SCC
o L communicated in an ‘adult only’ chat room online, with an undercover police officer
▪ The officer was posing as a 13-year-old boy
▪ The profile indicated that the boy was 18-years old however he repeatedly informed L that he was only 13
and in Grade 7.
o At trial there was doubt as to whether L believed that the boy was 13 (although he was aware that the boy might be 13)
▪ L was acquitted, as a result

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o H; L is presumed to have believed that the boy was underage, as he represented to him that he was 13 years old, and his
actions were unreasonable (he took no further steps to ascertain the age of the boy)
▪ where a person had represented that they are underage, it is presumed that the accused believed that the
person was in fact underage;
● rebutted where an accused can show that reasonable steps were taken to ascertain the person’s age
▪ L’s conviction was upheld
● R v ADH (2013) SCC
o A gave birth in a public washroom, not knowing that she was pregnant
▪ A thought the baby was dead and left it in the toilet
▪ The child was in fact alive
o A was charged with unlawfully abandoning a child under 10 years old, thereby endangering their life (s218)
o Q; what is the mental element necessary for the mens rea of s218?
o H; A was acquitted, as she did not subjectively try and abandon the child
▪ Presumption that subjective mens rea is required (without language to the contrary)
▪ s218 requires a subjective fault element for mens rea (only those with a guilty mind are punished)
● offence is duty-based

D. Willful Blindness
Wilful Blindness (pp. 195-197) (it is available as a substitute for the fault element for knowledge)
Ie: (Briscoe) accused has a strong, well-founded suspicion” that the victim would be sexually assaulted and killed but declared “whatever
you guys want to do just do it. Don’t do it around me. I don’t want to see nothing”. =subjective form of fault greater than recklessness and
negligence
● Deliberate ignorance (‘deliberately choosing not to know’)
o Substitute for knowledge in cases where an accused subjectively sees the need for further inquiries about the existence
of prohibited consequences/circumstances but deliberately fails to make such inquiries (Briscoe)
● Distinct from recklessness because it involves knowledge of a danger or risk and persistence (Sansregret)
o Wilful blindness is where there becomes a need for an inquiry and a person declines to make the inquiry because they
do not wish to know the truth.

● R v Currie (1975) Ontario Court of Appeal

o Forged cheque: jury instructions too objective
o Man cashes check in return for $5. Charged with uttering a forged document.
o Was the defendant’s suspicion aroused?
o Test for willful blindness is subjective. Trial judge made the mistake of saying “should have known/inquired” even
when discussing wilful blindness
● R v Vinokurov (2001) Alberta Court of Appeal
o V was the manager of his mother’s pawn shop in Edmonton
▪ He had not queried the source of the goods being pawned, even though he was buying them from an inmate
on parole
o V was charged with seven counts of possession of stolen property
▪ The trial judge found V guilty on the basis that he was reckless
o H; recklessness was not an element of the mens rea, the conviction was quashed & a new trial ordered
▪ Recklessness requires consciousness of the risk and the Crown had not proved that V was conscious of the
risk that the property might have been stolen
● R v Briscoe (2010) SCC
o Coutepatte (13) was lured into a car (with 5 males) on the false promise of being taken to a party
o B and his friend Laboucan drove a group to a secluded golf course
▪ L said earlier that day that he would like to find someone to kill and chose C as his victim
o B opened the trunk and at L’s request handed him some pliers
o B stayed behind the car as the others went on the golf course seeking the party
▪ He rejoined the group when another youth hit C from behind with a wrench
o B then watched as C was brutally raped and murdered
o All five persons involved were charged with kidnapping, aggravated assault and first degree murder.
▪ B was acquitted, as he did not have the requisite knowledge (mens rea for a party) that L intended to commit
the crimes
o Q; was B a part to the offence? (what is required to make a finding of willful blindness?)
o H; wilful blindness is an active process of suppressing a suspicion.
▪ Can substitute for actual knowledge when knowledge is a required component of the mens rea of the offence.
▪ The statements B made to police (‘ahh fuck I don’t wanna know’) made it clear that he deliberately supressed
a strong suspicion that someone would be killed.

E. Recklessness

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Recklessness (pp. 197-198)
● Form of subjective mens rea
o lower threshold than intention, purpose, knowledge & wilful blindness
● where someone had become personally aware of a risk and continues anyways
o distinguished from negligence where only objective foreseeability of the risk is needed

● R v Buzzanga and Durocher (1979) Ontario Court of Appeal

o B & D were trying to get the attention of French Canadians living in their area
▪ In order to take charge in a political debate regarding a French language school in their area
▪ Wanted to encourage them to fight for the school
o B&D circulated a pamphlet that was supposedly written by anti-French bigots to stir people to action
▪ They act in fact written the pamphlet themselves
o B&D were charged with inciting hatred against an identifiable group
▪ They were convicted at trial.
o Q; were the fault elements of the offence present in the case?
▪ Did B&D intend to promote hatred of the French Canadians?
o H; B&D had the intention of rallying support for the school (not discriminating) and therefore they did not have the
necessary mens rea to be convicted of inciting hatred.
▪ Recklessness denotes a state of mind where the party foresees that his actions may cause the prohibited result,
but proceeds anyway.
● Recklessness is not included in this section of the Code, therefore B&D are required to ‘intend’ to
cause the outcome ONLY (‘wilfully’ is used in the section)