Objective vs. Subjective
-Subjective refers to mens rea (the guilty mind, intention), because it talks about what
is going on in the person’s mind at that time. *Always applies in criminal law
-Objective is not concerned with intention (i.e. you ought to have known better).
-If there is no mens rea, you should not be punished because you did not mean to do
-Criminal law is almost always subjective.
Normative- conduct that has normative implications; punishable conduct.
Purely normative- when you do something, but the only thing you have done wrong is
break the law. The only implications come from the fact that what you are doing is
forbidden by law.
Normatively important- (Oblique intention)
1. Intend one thing
2. Know some other thing will result
3. Do #1 anyway
4. Reason not to do #1 is referred to as the “normatively important reason”
Because you intend one thing and know the result, you therefore intend the resulting
result. Also called the Doctrine of Double Effect.
Oblique intention- you don’t want to kill a child, you want to separate Siamese twins.
However, you can not say that you didn’t intend to kill the child since you knew it
You are tried as you committed the same intention to do the resulting result.
*Not every criminal offence requires mens rea, or uses it to the same extent.
Case: R. vs Logan
-3 guys rob a store, one guy shoots the clerk. All three men were charged and
convicted with attempted murder. Also charged with armed robbery, assault with a
-The one guy said he had no idea guns would be involved. Is there mens rea?
-“Everyone is a party to an offence.” Where two or more persons carry an intention to
commit an offence, and one person commits another offence in the process, both
parties who knew or who ought to have known are liable for those actions as well.”
-Some offences require less mens rea, some require more. Murder requires the least
-Subjective mens rea not necessary for those involved. Party to an offence commits
-At this time, the criminal code actually makes it easier to convict the party to the
offence than the primary offender.
-Case went to the Supreme Court of Canada
Case: Ancio- case established that a specific intent to kill is the minimum mens rea
required for a principole offender for attemped murder
Vaillancourt- for some offences, the principles of fundamental justice can not stand
unless there is proof beyond a reasonable doubt that there is a minimum amount of
mens rea. Subjective mens rea at a minimum. -If you go to jail, any law that takes away your liberty can only do so if it is in
accordance with the principle of fundamental justice.
-For murder in particular, it is constitutionally required that the killer has to have had
subjective foresight in that the victim was going to die.
-“Ought to have known” does not apply for a crime that requires a subjective mens
-Intentions between murder and attempted murder are not different, just the action,
since one got lucky in that their victim didn’t die.
-Stigma is the determining feature that makes us have to have subjective mens rea in
“Attempt” –lacking actus reus, have mens rea. For attempts generally, you should
look at subjective mens rea, because the result was intended anyway.
Case: DPP vs. Smith
-DPP (Director of public prosecutions. “R” in Canada)
-Smith was in a street car, filled with scaffold wedges used on a construction site.
Police were aware of this, asked him to stop so they could ask him questions. Smith
just floored it, police officer jumped on the car while moving, fell off, and was run
over by a bubble car.