Mens Rea (Cont.)

1. Mens Rea (Cont.) November 13,2007

2. 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

3. Level of Mens Rea • Read the statute to determine whether mens rea is specified eg “wilfully” “intentionally” “knowingly” • If statute silent, recklessness is sufficient

4. 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

5. 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

6. Legislation and analysis of elements • Charged under s. 319(2), ??? • Elements??

7. 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

8. Buzzanga • 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

9. 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)

10. Wilful Blindness • Suspicions aroused (re: circumstances or that actions will cause consequences) but deliberately close eyes to risk, does not investigate further

11. Blondin • Charged with importing cannabis hidden in scuba tank • Accused said knew something illegal was in it but did not know what

12. 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

13. 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

14. Currie • Charged with unlawfully and knowingly uttering a forged document with the intent to use it as genuine • Why wilful blindness necessary?

15. Trial judge said • Should have inquired, should have been suspicious (what s wrong with that?) • Convicted on the basis of wilful blindness

16. 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

17. Sansregret • Facts:2 incidents, • From second occasion charges of rape, b. and e., unlawful confinement, robbery, possession of weapon

18. Trial judge found • He honestly believed she really was consenting of her own free will

19. Elements of Offence of Rape • Actus reus • Conduct –sexual intercourse • Circumstances-no consent

20. 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

21. 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

22. 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

23. 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

24. 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

25. Lewis • Facts: Lewis mailed a kettle bomb that killed Tatlay’s daughter and charged with murder • No evidence of motive

26. 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”

27. 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)

28. Application to facts • Mens rea issue is whether Lewis mailed the package with the knowledge of its contents, then specific intent to kill arises by inference