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What you need to know about mens rea:
Understand hierarchy of states of subjective mens rea
Statutory interpretation and default position
Meaning of intent/knowledge/ wilful blindness and recklessness
But motive may be important in evidence
Level of Mens Rea Read the statute to determine
whether mens rea is specified eg “wilfully” “intentionally” “knowingly”
If statute silent, recklessness is sufficient
What do these levels of Mens rea mean? Intention/knowledge/wilful blindness are
the highest Intention usually refers to consequences Knowledge/wilful blindness usually refer to
circumstances (See s. 155) If these words appear in statute,
recklessness will not suffice See case law for interpretation But note s. 429 definition of wilfully for
certain offences
R. v. Buzzanga and Durocher Facts:Francophones trying to
establish francophone school in Essex County
Published a document to show how crazy was the opposition
Issue What does wilfully mean? Look to structure of legislation, (i) wilfully modifies promotion of
hatred (ii) contrast with 281.2(1) which is
also a true crime but where recklessness is sufficient
Buzzanga1. Tells us the meaning of wilfully, to desire to
bring about consequences or know that consequence substantially certain
2. Tells us about the use of objective evidence to determine subjective intent
“The greater the likelihood of the relevant consequences ensuing from the accused’s act, the easier it is to draw the inference that he intended those consequences. The purpose of this process, however, is to determine what the individual intended, not to fix him with the intention that a reasonable person might be assumed to have in the circumstances
Recklessness Recognize risk that actions may
cause this consequence or these circumstances exist but take risk anyway
Must be subjectively aware of the risk (eg possible this is not my wallet, possible that woman not consenting to sexual activity but take the risk anyway)
Wilful Blindness Suspicions aroused (re:
circumstances or that actions will cause consequences) but deliberately close eyes to risk, does not investigate further
Blondin Charged with importing cannabis
hidden in scuba tank Accused said knew something illegal
was in it but did not know what
What level of mr required and to what facts? It is a true crime, must know the
character of the forbidden substance Not enough to know it was
something illegal Recklessness was sufficient
Currie Approached in bar by stranger to
cash cheque, payees name on the back pays 19 year old Currie $5
Currie goes to bank, signs own name and gets the money
Currie Charged with unlawfully and
knowingly uttering a forged document with the intent to use it as genuine
Why wilful blindness necessary?
Trial judge said Should have inquired, should have
been suspicious (what s wrong with that?)
Convicted on the basis of wilful blindness
Court of Appeal Not enough to say suspicions should
have been aroused In order to impute knowledge,
require some state of actual awareness, actual suspiciousness
Sansregret Facts:2 incidents, From second occasion charges of
rape, b. and e., unlawful confinement, robbery, possession of weapon
Consent Consent must be freely given and not arise from
threats or consent is negatived just appearance of consent(ar)
Mistake of fact defence is that the accused thought there was consent but was mistaken(mr)
Pappajohn an honest (even if unreasonable)belief in consent negates the mens rea
Therefore,if accused honestly but mistakenly believed consent freely given, not through threats, no mr
Dilemma in this case Macintyre J would have convicted on
recklessness but this conflicts with findings of fact at trial of honest mistake
TJ also used wilful blindness, but not in the technical sense, more like “should have known”
Recklessness distinguished from wilful blindness
Wilful blindness Requires awareness of need for
further inquiry Application to the facts here
problematic Cannot simultaneously have an
honest belief in consent and find him wilfully blind as to consent
Comment on Sansregret Discussion of wilful blindness sounds like
gross negligence Illustrates problems with requiring subjective
test for some crimes Sansregret one of the factors leading to
change in the law regarding mistaken belief in consent
Now cannot claim mistake unless the accused has taken reasonable steps to ascertain whether the accused was consenting
The (in)significance of motive. Motive is: Why the actor acted Not the same as intention Ordinarily not an aspect of mens rea Crimes with no motive may still be
intentional
Lewis Facts: Lewis mailed a kettle bomb
that killed Tatlay’s daughter and charged with murder
No evidence of motive
Propositions
“In most criminal trials ..the Court is concerned, relates to ‘intent’ ie the exercise of free will to use particular means to produce a particular result, rather than with “motive” ie that which precedes and induces the exercise of the will. The mental element of a crime ordinarily involves no reference to motive”
Propositions (cont) Motive is always relevant evidence
and admissible Motive is legally irrelevant Motive is a question of fact The significance of motive depends
on the case (cf Tatlay and Lewis)
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