Class 1: Subjective Fault for Crimes Done 100%

Question 1

DEFINE Recklessness

Is it for objective or subjective crimes?

Answer 1

Recklessness – found in the attitude of a person who is aware that there is danger that his conduct could bring about but persists despite the risk

subjective

Question 2

DEFINE Willfull Blindness

Is it objective or subjective

Answer 2

Wilful blindess - arises where a person becomes aware of the need to inquire but declines to make the inquiry because he does not want to know the truth. He would prefer to remain ignorant

Subjective

Question 3

What is mens rea very simply summarized?

What is its function?

Answer 3

It is the guilty mind; the wrongful intention of the accused

To protect the morally innocent.

Question 4

R. H. (A.D.) 2013 SCC

Facts: Case involved a lady who gave birth in Walmart bathroom. She thought baby was dead and left the baby in the toilet. Shoppers found baby in toilet. Charged. She defended herself that she thought the baby was dead and this was a reasonable thought.

Issue:

What is the presumption we can make about crimes and the mental element required?

What about true crimes?

Can negligence be enough for a subjective fault crime?

Answer 4

Holding

There is a presumption that parliament intends crimes to have a subjective fault.

True crimes there is a presumption you need subjective fault.

Negligence cannot be enough as it is subjective, and negligence is always objective.

Question 5

True or false: For true crimes, there is a presumption the person cannot be liable without mens rea.

Answer 5

TRUE

Question 6

For a subjective fault crime, can negligence be a factor in deterring guilt?

Answer 6

No. Negligence is based on an objective standard and thus cannot be used for a subjective test

Question 7

What are the two types of fault elements?

What is more prominent?

Answer 7

Modified-objective and subjective. The focus is on subjective fault.

Question 8

What does “willfully” generally mean?

Answer 8

Generally it is always subjective fault unless there is anything there that suggests parliament intended to depart from requiring subjective fault.

Question 9

What does motive mean?

Is it an essential element of offences usually?

Answer 9

Described as the reason a person chooses to engage in conduct. It is generally not an essential element of any offence, but proving the accused had a motive might often be helpful for the crown in proving things it is required to prove.

An example: if there is a question as to whether the application of force was intentional or not, the presence of a motive might sway the judge in one direction or another.

Question 10

Does the crown have to prove motive?

Answer 10

Typically not but can be a benefit/relevant to the crowns case.

Question 11

Can motive sometimes be referred to as ulterior motive?

Answer 11

Yes. this is the reason why the person did what they did.

Question 12

What are the two types of intent?

What do they both mean?

Can you give me an example of each?

Answer 12

General and Specific intent.

General intent means the act was committed intentionally as opposed to accidentally. Minimal intent is needed and is enough to sustain a conviction if other elements are proven BRD.
(Example of general intent: Assault, sexual assault)

Specific Intent means the act was committed with the specific intention of doing something

(Example for murder, a specific intent to kill is required)

Question 13

What determines whether an offence requires specific or general intent?

Answer 13

The common law

Question 14

R v. Hibbert 1995

Facts: Case involved X who was forced under gunpoint by Y to lure his friend Z. When Z came, Y shot him. X who was forced to lure Z was charged with attempted murder on the idea of party liability.

Issue: Problem the word “purpose”. Does purpose mean intention or desire?

What fault requirement is need for the word purpose?

Answer 14

Holding/Ratio:

The court held the meaning of purpose in this section is intention not desire.

Purpose is a subjective fault requirement and thus the crime requires a subjective fault.

Question 15

What fault requirement is the words “intentionally, with intent, purpose, knowingly, means to , willfully?

Is this always the case?

Answer 15

Subjective fault requirement.

No it is not.

Question 16

Does the word “willfully” have a fixed meaning always?

Answer 16

No. It can be interpreted differently depending on the context. Wilfully could mean intentionally or recklessly.

Question 17

For subjective mens rea, what are the 3 types of intention it includes?

Answer 17

1) Actual knowledge or intent

2) Recklessness

3) Willfull blindness

Question 18

What does recklessness mean for a subjective mens rea?

Can recklessness be a substitute for subjective mens rea?

Answer 18

Involves knowledge of danger of risk and persistence in a course of conduct which creates a risk that the prohibited result will occur. Culpability is justified by consciousness of the risk and by proceeding in the face of it.

YES.

Question 19

What does wilful blindness mean for a subjective mens rea?

Can wilful blindness be a substitute for subjective mens rea?

Answer 19

Arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not want to know the truth. He would prefer to remain ignorant.

Culpability is justified by the accused’s fault in deliberately failing to inquire when he knows there is a reason for inquiry.

YES.

Question 20

R v. Buzzanga and Durocher.

Facts: Case involved a guy who gave documents that made fun of the new French school. Court said they needed to prove he “willfully” acted.

Issue:

Based on this question, what is the fault requirement needed to prosecute?

Answer 20

Holding/Ratio:

Accused testified they said there intention was just satire.

Law said they need to willfully do the action. And the word willfully means there is a subjective fault requirement. Thus that is the fault element needed for this crime.

Question 21

What is the 2 actus reus requirements needed to prove fraud?

Answer 21

1) Prohibited act and 2) deprivation caused by the prohibited act

Question 22

What are the 2 mens rea requirements needed to prove fraud?

Answer 22

1) Subjective knowledge of the prohibited act

2) subjective knowledge that the prohibited act could have as a consequence the deprivation of another

Question 23

Can an accused provide evidence to negate an inference for their fault element?

Answer 23

The accused can introduce evidence negating the inferences, such as evidence that his deceit was part of an innocent prank, or evidence of circumstances that led him to believe that no one would act on his lie or deceitful act.

Question 24

R. v. Theroux.

Facts: Case involved a guy who said the deposits were insured but they were not when he honestly thought they were. He really thought people would not lose their deposits. Charged with fraud.

The issue: What was the mens rea required for the crime? Is recklessness required in the subjective fault element for fraud?

Answer 24

Holding/Ratio:

Subjective fault required. Recklessness is included in the mental fault element for fraud.

They need subjective knowledge of the act and subjective knowledge that the act could have as a consequence the deprivation of another.

The accused is guilty of fraud whether he intends the prohibited consequence or if he is reckless to whether it would occur.

Question 25

Is recklessness included in the mental fault element for fraud?

Answer 25

Yes.

Question 26

Does the crown have to prove what the accused was thinking at the time for fraud?

Does the crown have to prove the accused had subjective knowledge of the risk for fraud?

Answer 26

No.

The crown can ask the court to infer that the accused had subjective knowledge of the risk

Question 27

Can mens rea be inferred?

Answer 27

Yes.

Example: Wilful blindness.

Question 28

R. v. Boulanger.

Facts: The father held public office and asked the secretary to prepare a report showing his daughter was not the cause of an accident to avoid insurance deductibility. Charged with breach of trust. The element says ‘ the accused acted with the intention to use……”

Issue: What fault element is needed? What does intention mean for this crime? Can it be inferred?

Answer 28

Holding/Ratio:

Subjective fault is needed for this crime.

The mens rea can be inferred from the evidence. Court had a doubt for this crime, and acquitted him.

Question 29

R v. Sansregret

Facts: The accused who was charged with rape with consent extorted by fear.

Issue:

Define wilful blindness.

Define recklessness.

If a court finds wilful blindness, do they have subjective knowledge?

Same as above but for recklessness.

Answer 29

Holding

Recklessness – found in the attitude of a person who is aware that there is danger that his conduct could bring about but persists despite the risk

Wilful blindess - arises where a person becomes aware of the need to inquire but declines to make the inquiry because he does not want to know the truth. He would prefer to remain ignorant

Where wilful blindness is found to exist, the law presumes knowledge on the part of the accused (in this case, the knowledge that consent had been induced by threats)

Recklessness infers knowledge.

Question 30

Briscoe and Legacy Cases

Facts: Irrelevant.

Issue:

Is wilful blindness and recklessness always subjective?

Can you infer knowledge from wilful blindness and recklessness?

Answer 30

Willful blindness and recklessness are distinct concepts

Neither operate to define the mens rea required for a particular offence; but they can substitute for actual knowledge whenever knowledge is a component of the mens rea (Briscoe)

The doctrine of WB imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but they deliberately choose not to make them

“deliberate ignorance” is a way of describing wilful blindness; it is not simply a failure to inquire

An inquiry made by the accused will not always be determinative of whether or not they remained to be willfully blind – the nature of the inquiry becomes important to see if they remained WB after the inquiry (Lagace)

Question 31

R. v. Blondin.

Facts: The accused is charged with importing a narcotic. He was aware he was carrying something illegal but wasn’t aware of the precise drug.

Issue:

Is recklessness or willful blindness included in the subjective crime of possession of drugs?

Answer 31

Recklessness and wilful blindness are included in the fault requirement for possession of drugs. It is open to the court to find that he bought the drugs and had been reckless about what the substance was or willfully blind to it. Court can draw the inference he suspected it may be a narcotic.

They could have done so if they found that Blondin had been paid to smuggle a substance illegally into Canada and either was reckless about what it was or wilfully shut his eyes to what it was, inferring therefrom that he suspected it might be a narcotic.

Therefore: The judge should have told the jury that they might convict Blondin if they found that he brought the substance into Canada knowing it was a narcotic. Or, if they found that he brought the substance into Canada illegally and had either been reckless about what it was or wilfully shut his eyes to what it was, and then drew the inference that he suspected it to be a narcotic.

Appeal allowed, verdict of not guilty set aside and new trial ordered

Question 32

Summary.

1) What is mens rea big picture?

2) What are the two tests for mens rea?

3) What presumption is there for the fault requirement?

4) What is the presumption for true crimes?

5) In the case of true crimes, can negligence be enough to support a conviction?

Answer 32

1. Guilty mind: the wrongful intention of the accused. Its function is to protect the morally innocent; those who do not intend the consequences of their actions.
2. Tests for mens rea – modified-objective or subjective
3. There is a presumption that Parliament intends crimes to have a subjective fault element
4. In the case of true crimes there is a presumption that a person not be held liable for the wrongfulness of his act if that act is without mens rea…
5. Mere negligence is excluded from the concept of the mental element required for conviction

Question 33

Summary 2

1) Define what motive is

2) Does the crown typically have to prove motive? What can motive do?

3) What is general intent?

4) What is specific intent?

5) What establishes whether an offence requires specific or general intent?

Answer 33

“Motive” has been described as the reason that a person chooses to engage in conduct;

Ordinarily the Crown does not have to prove motive; but evidence of a motive can be of benefit/relevant to the Crown’s case - proof of intention/proof of state of mind, identity, etc.

GENERAL intent – means that the act was committed intentionally (as opposed to “by accident”); minimal intent/but remains sufficient to sustain a conviction if other elements are proven beyond a reasonable doubt

SPECIFIC intent - means the act was committed with the specific intention of doing something (i.e., Murder = specific intent to kill is required)

The common law will establish whether an offence requires specific or general intent

Question 34

Summary 3

1) What are some words that indicate a subjective fault requirement?

2) What three type of intents also are apart of the subjective mens rea?

3) As a general rule, a person who forsee’s a consequence is certain to result from that action, xxxxx that consequence

4) Does the crown have to prove what exactly was in the accused mind at the time of an alleged fraud/crime?

Answer 34

Words matter - Intentionally, with intent, purpose, knowingly, means to, willfully, etc., indicate a subjective fault requirement

SUBJECTIVE MENS REA includes the following types of intention – actual knowledge or intent, recklessness and wilful blindness

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 purpose, intends that consequence.

The Crown does not have to prove what precisely or exactly was in the accused’s mind at the time of the alleged fraud; the Crown can ask the court to infer that the accused had subjective knowledge of the risk

Question 35

Summary 4

1) Define recklessness
2) Define willful blindness
3) If wilful blindness is found, is knowledge implied?
4) Can wilful blindness or reckless substitute actual knowledge?

Answer 35

Recklessness – found in the attitude of a person who is aware that there is danger that his conduct could bring about but persists despite the risk

Wilful blindess - arises where a person becomes aware of the need to inquire but declines to make the inquiry because he does not want to know the truth. He would prefer to remain ignorant

Where wilful blindness is found to exist, the law presumes knowledge on the part of the accused

Neither operate to define the mens rea required for a particular offence; but they can substitute for actual knowledge whenever knowledge is a component of the mens rea

Question 36

Define the subjective mens rea requirement?

Answer 36

That person had a guilty mind, the wrongful intention.

Must be proven BRD

Question 37

Does purpose always indicate subjective fault?

Answer 37

Typically, but sometimes if parliament shows wording intending an objective standard, purpose can be objective

Question 38

If I can foresee a consequence is certain from my actions, and I do it anyways, what can the jury infer?

Answer 38

As a general rule, a person who forces that a consequence is certain to result from an act which he does, intends that consequence. Intention is subjective here for the crime.

Question 39

Does the crown have to prove precisely what was in the accused mind?

Can knowledge ever be inferred?

Answer 39

No. the crown can ask the court to infer that the accused had subjective knowledge of the his.

Question 40

What does deliberate ignorance indicate for a crime?

Answer 40

It is wilful blindness.

Question 41

Is a failure to inquire wilfully blindness?

Answer 41

No it is a deliberate ignorance

Question 42

How can you know if recklessness or wilful blindness can be a substitute for intent?

Answer 42

Common law.

Look at past cases.

Question 43

How can courts differ from following a subjective fault element?

Answer 43

Yes. If there was any words used by parliament that indicate a departure from requiring subjective fault