Express FULL MR
- Intentionally (aka
wilfully, with intent to
(Chartrand), for purpose
of (Hibbert))
- wilfully
- knowingly
- recklessly
- wilfully blind
Express CRIM NEG
- marked and substantial
departure from reason.
person, wanton and
reckless disregard
(Tutton v Waite)
Express PENAL NEG
- marked departure from
reasonable person
(careless) (Hundal)
Express STRICT LIABILITY
-
claiming no negligence is
no defence
due diligence is a defence
Express ABSOLUTE LIABILITY
-
no defence by MR; due dilgence no
defence
Determining the Requisite Mens Rea
REMINDER
Statutory Provision
Is there express language of mens rea?
Yes
Language Governs: What do the
express words mean?
1. Murder
2. Attempted
murder
3. Theft
4. Crimes against
Humanity (Finta)
Is the Prescribed Mens Rea
Unconstitutional?
MAYBE
Good
What do
the express
words
mean?
Categories
1.
2.
3.
4.
5.
Stigma (Vaillancourt)_ _ _ _ _ _ _ _ _ _FULL MR
CRIM NEG
it is a(Hundal)
stigma _ _ _ True
with
trueIfcrime
_ _ _Crime
PENAL
NEG
offence
Strict
or
Absolute
any prison (BC Motor Vehicles) _ _ _ _ _ STRICT L.
Liability
ABSOLUTE L.
(Vaillancourt)
(Hundal)
TRUE CRIME if:
1. In CC unless clear intention
otherwise (Prue & Baril)
2. Federal Statute
3. Meets fuzzy tests:
a. Nature & seriousness of
conduct (SSM)
i. Prohibit v regulate
ii. “bad in itself”
b. Severity of Penalty (SSM)
i. 2 yrs - day = prv.
jail
ii. 2+ = federal jail
iii. bigger penalty = TC
Risk of Loss of
Liberty with
Absolute Liability
FULL MR (subjective)
CRIM NEG (objective)
PENAL NEG (objective)
SL (objective)
AL (no fault)
No
Is the offence a “True Crime” or “Regulatory Offence”?
Prue and Baril
True Crime
Regulatory Offence
The Mens Rea is Presumptively
The Mens Rea is Presumptively
STRICT LIABILITY
ANY SUBJECTIVE FORM OF MENS REA
(IT COULD BE ANY SO LIST & DEFINE ALL)
(Buzzanga)
(Sault Ste. Marie)
(BC Motor Vehicles)
ABSOLUTE LIABILITY is:
INTENTIONALLY
-
-
WILFUL BLINDNESS
RECKLESSNESS
KNOWINGLY
means intentionally
Deliberately failing to
possibly, probably
Subjective
(Buzzanga)
inquire when had
or very probably
knowledge
offences under s429
knowledge about facts
going to result in
of some fact
(property offences
(Sansregret)
the harm
or state of
s430-446 Part XI of
A must foresee need
A forsees their act
affairs
CC) wilfully means
for inquiry and choose
might cause the
intentionally and
not to inquire (Briscoe)
harm but still
high form of
Currie: “ought to have
takes a “deliberate
recklessness
been suspicious”
(probably not just
and unjustifiable
possibility)
objective test and not
risk “(Buzzanga)
sufficient
WILLFULLY
Direct Intent
o
A does act with intent, purpose, desire, goal of
bringing about prescribed harm
(Buzzanga, Keegstra, Chartrand)
o
Intent exists regardless of whether act will
certainly, probably or only possibly cause harm
Indirect/Oblique Intent
o
A does act with intent, purpose, desire of
bringing about something other than
prescribed harm but knows (foresees)
prescribed harm is “substantially certain”
(Buzzanga, Keegstra, Chartrand)
o
Ie. blow up plane with pilot friend
Crown proves AR BRD and A
convicted even A took every
precaution to avoid harm (i.e no fault).
Only exists if parliament makes it clear
it was intended, often imposed when
stigma/ penalty is so low in regulatory
offences
If AL carries penalty that involves
deprivation of freedom s7 then violates
charter and is unconstitutional (Motor
Vehicles). BUT, in BC ss6 and 82 of
Offences Act - if any BC offence
classified by judge as AL, penalty of
jail struck from offence so fine only.
STRICT LIABILITY means:
The Crown proves the actus reus BRD and
the A is then found guilty unless A can
prove (on BOP) that she/he acted with
reasonable care or due diligence (Sault Ste
Marie)
SCC held that the onus on A to prove due
diligence is not an unreasonable violation
of presumption of innocence under s11(d)
and s1 of Charter (Wholesale Travel)