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Subjective Mens Rea.docx

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Simon Fraser University
CRIM 230
Peter Smith

Mens Rea – Introduction: - Mens rea: the mental elements of an offense the crown must prove to obtain a conviction – only the “morally blameworthy” are held to account - Children under 12 / those who are NCRMD can’t be held responsible – they are not capable of fully understanding the nature and consequences of their actions - Mens rea comes in many forms – most generally, objective versus subjective (and then further breaking into N, R, WB, I/K, F, premed) (negligence, recklessness, willful blindness, intent/knowledge, fraud, premeditated) - Subjective intent – accused intended the consequences of acts or knew of a substantial risk and proceeded recklessly - What was actually in the mind - Objective intent – accused failed to properly direct the mind in the face of a risk which a reasonable person would have appreciated - What ought to have been in the mind Mens Rea – Sliding Scale: - Mens rea scale – moral fault required will be a function, in part, of the gravity of the offence - More serious stigma/consequences require higher proof of moral guilt (see Martineau) - Negligence, recklessness, willful blindness, intent/knowledge, fraudulent, premeditation (negligence is easiest to prove, premeditation is the hardest) Mens Rea – “Intent”: - Intention/knowledge typically mean the same - Terms “willfully” and “means to” are also synonymous with I/K in CCC - Distinguish intent from motive – motive precedes and induces (and is often used as evidence to persuade there was mens rea), while intent is the actual exercise of free which is certain to bring about a result - In Buzzanga and Durocher (1979) two were charged with promoting hate (s.319), disseminated anti-French Canadian literature – even though they were French Canadian; just trying to draw attention to their cause; did not desire to promote hatred - OCA said ultimate motive/desire is not relevant to the question of mens rea - “as a general rule, a person who foresees that a consequence is certain or substantially certain to result from an act which he does in order to achieve some other purposes, intends that consequence” - Guess case (2000) – obstruction of justice. Although her objective was clearly not to obstruct justice, she knew that this was an inevitable consequence of her actions. The BCCA quoted the line above from Buzzanga. - But how do we prove what was actually “in the mind” of an accused? Mens Rea – Proving Subjective Intent: - The crown need not prove BRD what was actually “in the mind” of the accused. Subjective awareness can be inferred from the act itself by asking “what would a reasonable person have intended or known in these circumstances?” - Example – aiming a gun and pulling the trigger - But in Seymour, the SCC noted inferring subjective awareness from the act is: o “a reasonable person which may be drawn but is not required to be drawn by juries…a reasonable common sense inference may be drawn only after an assessment of all the evidence…and the inference cannot be applied if the jury is left with a RD about the accused’s intention” - The reasonable person is not a definitive test – only applied if only there is no alternative explanation - Beyo (2000) – mischief charge – broke window at estranged wife’s house; believed his son had been kidnapped – banging the window to get attention - A common sense inference could not be made (he intended to break the window because he was banging on it) because there was other credible evidence to suggest a contrary intent (his concern over his son) - Once an accused brings up a credible alternative to an obvious inference, the crown must then prove intent was nevertheless present BRD Mens Rea – The Doctrine of Transferred Intent: - S.265 – a person commits an assault, when without consent, he applies force intentionally to that other person - “transferred intent” occurs where mens rea from one offense is transferred to that same offense accidentally perpetrated to another victim - If you mean to hit person A, they duck and you hit person B, you are guilty of an assault against person B, intent and all, despite the fact that you had no intention of hitting person B - A common law principle, codified in part by: o S.229 culpable homicide is murder (b) where a person, meaning to cause death to a human being…by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being - In Droste, man told everyone he wanted to kill his wife, and how he would do it. Soaked car with gas. Had an accident with his kids in the car. Wife and Droste survived, kids died. - SCC decided that a jury was properly told that if they believed BRD that Droste has mens rea for first degree murder for his wife, than he was guilty of the first degree murder of his kids Mens Rea – Transferred Intent: - Three rules to remember about transferred intent: o Intenet will transfer only for the same offence. For example, the intent to commit suicide cannot be transferred to intent to commit murder (Fontaine, 2002, MCA). Another example – intent for mischief cannot be transferred to intent to commit assault (Vandergaaf, 1994, MCA) o Intent will not transfer for any charge of “attempt”. In Gordon (2009), the OCA noted an attempt to murder a drug dealer with a shotgun could not be “transferred” to three bystanders that were incidentally injured. o The courts generally regard transferred intent as an undesirable last option, and where other direct offences can be used, they should be (Irwin, 1998, OCA – two men fighting roll over a third and injure the third) Mens Rea – “Recklessness”: - Applies to consent, murder, arson, harassment, damage to property - Recklessness requires a decision to proceed despite the existence of a foreseen, unreasonable risk. The accused need not desire the fault. Note that there are both subjective and objective elements to recklessness: o Subjective – foresight of a risk o Objective – unreasonable assumption of that risk - In Sansregret (1985) – “double” honest mistake claim made - The SCC decided that recklessness as to consent was a sufficient standard to prove mens rea for the offence of sexual assault - S.229 culpable homicide is murder (a) where the person who causes the death…(i) means to cause his death, or (ii) means to cause bodily harm that his knows is likely to cause his death, and is reckless whether death ensues - For murder, recklessness requires the foresight of not just the possibility of death, but the likelihood death would result - From Cooper, the SCC said: “it is not sufficient that the accused foresee simply a danger of death; the accused must foresee a likelihood of death flowing from the bodily harm that he is occasioning on the victim” Mens Rea – Willful Blindness: - Willful blindness – virtually certainty in the mind of the accused of existing circumstances, while they deliberately “shut their eyes” to this knowledge, more than recklessness - Requires 1) subjective realization of a set of circumstances and 2) deliberate avoidance of further knowledge - Sansregret – “
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