3. Absolute, Objective or Subjective Criminal Liability (and for What Offences?)

The question in this session is not what the various mens rea requirements are but whether any particular mens rea is required for any given offence. In other words, it speaks mostly to the constitutional dimension of mens rea, where the next session will be concerned with its practical application in the criminal law.

To grasp intuitively what is at stake, imagine, for example, that there was an offence of "theft by negligence" where a person could be convicted for theft because "a reasonable person would have known" that the property wasn't his. If this strikes you as odd, it is because it is: we typically understand theft, and the particular stigma it carries, as designating people who knowingly take property that is not theirs. In punishing people who only negligently take property that does not belong to them we would be considerably extending the scope of the offence of theft in ways that are problematic. For example, it might dilute the deterrence value of the prohibition of theft by "trivializing" the offence. Or it might breed cynicism and contempt for the law for those who had been convicted of theft on the basis of negligence and thought that what they had done was much less blameworthy than people who had actually set their mind to steal.

Especially in a Charter era, where one is entitled to only be deprived of one's liberty in accordance with "fundamental principles of justice", there is something wrong about being punished for an offence for which an essential element is that one have actually known that the property was stolen. This is why, when it comes to homicides, there is a distinction (and a distinction worth maintaining on constitutional grounds) between murder (which typically ought to involve some subjective foresight of death) and manslaughter (which does not, although it does involve negligence).

The crucial concern here is that we do not want to convict the morally innocent. Note that in this scenario we are not dealing with a particular trial in which someone might be wrongfully convicted, but with the definition of the offence itself. The question is whether the offence is so framed that it actually mandates that people who have not committed a certain fault that one would deem to be constitutive of the offence are nonetheless held guilty.

This is a problem of relatively recent vintage. Traditionally, the criminal law was focused on grave wrongdoing that often had a strong moral component. In the absence of an explicit mens rea requirement, the Courts simply tended to assume that a subjective mens rea was required. This meant that one could only be convicted if one had subjectively willed all the elements of an offence. Although individuals who satisfied these fairly onerous criteria would be uniquely stigmatised, many who did not would at least not be liable for the subjective mens rea offence. Even in that old regime, note that one could  commit manslaughter in particular, i.e.: a not subjectively guilty homicide, as a result of one's gross negligence. However most offences could indeed not be committed merely inadvertently and negligently.

In the XXth Century, however, the rise of the regulatory state and its increasing reach in the operation of the economy, industry and labor, or social relations made it gradually more difficult to enforce a strict a subjective mens rea requirement. In many cases offences were mala prohibita, crimes that were crimes just because society said so not because they reflected any particular moral turpitude in and of themselves (killing someone is presumably immoral whether the law says so or not; insider trading or drug posession are offences largely because the sovereign has decided to make them so). Moreover, the interest in repressing them if and whenever they occurred tended to trump the need to scrutinise the conscience of the accused. For many, the obsession with proving "evil" was standing in the way of the state's regulatory efficiency and its efforts to sanction deviant and indeed dangerous behaviour whenever it occurred.

The problem, however, was that Canadian criminal law long did not particularly have an intermediary category between absolute liability offences (offences that are proved merely by proof of the actus reus; ie: that do not actually require a fault element) and subjective mens rea offences. Even before the Charter, the Supreme Court had to deal with this issue in R v. Sault Ste Marie where it found that a middle way existed between absolute liability offences and subjective mens rea offences in the form of strict liability crimes. In strict liability crimes, the Crown is relieved from the need to prove the fault element but the defendant can always introduce a defence of good faith. Before the Charter, however, the Courts could not have read in certain mens rea requirements (subjective or objective) or defences if Parliament clearly excluded them so that Parliament could theoretically have significantly lowered mens rea requirements if it wanted to.

There are many reasons why Parliament may want to lower mens rea requirements. It may want to speed things up at trial or, as a result of penal populism, consider that someone who committed offence X that led to a certain result is guilty of the result based offence even though X had no knowledge or foresight of the result. Technically, there are several ways in which Parliament can do this, including: (i) doing away with a mens rea requirement altogether (as in the case of absolute liability offences), (ii) replacing a subjective mens rea by an objective one, (iii) substituting proof of something for something else (e.g.: proof of intention to commit the underlying offence replaces the intent to commit another), or (iv) not requiring a symmetry between all the elements of the actus reus and the mens rea.

The ability to potentially resist and at least verify the justice of such arrangements has changed dramatically with the adoption of the Charter because of the Supreme Court's finding that section 7 actually requires certain minimum mens rea requirements for certain offences as part of "principles of fundamental justice." In other words, we have a right not to be deprived or our liberty except according to such principles, which include the requirement that offences have a mens rea broadly commensurate with the gravity of the offence. The Supreme Court does not only interpret offences; it reviews their constitutionality. There are minimum requirements that all offences must fulfill - beyond purely formal requirements such as those implied by the principle of legality - to comply with the Charter.

This is a significant victory for rights protection in principle. The results in practice are more ambiguous. At one extreme, it has led to a finding that absolute liability offences would be unconstitutional if a deprivation of liberty (as per section 7) is involved (B.C. Motor Vehicle Act). This confirms Sault Ste Marie, except on higher and more principled Charter grounds. On the other hand, there has been a relative tolerance for the "relaxation" of mens rea requirements. Since the adoption of the Charter, for example, the Courts have largely accepted that an objective fault may be a sufficient mens rea for an offence. For example, in Hundall the Court found that negligence is an adequate mens rea for the offence of "dangerous driving".

For every offence, the Courts will look at the nature of the offence, the sort of penalty anticipated and the stigma imposed to determine whether a subjective or objective mens rea is required (that is, aside from interpreting what Parliament actually wanted, they will determine whether Parliament was right to want what it wanted). As a rough but helpful rule of thumb, the graver the offence and the harsher the punishment, the higher the mens rea requirements; the more trivial and benign the offence, the more likely it is that the Charter is likely to be satisfied by an objective fault. There is a rough correspondence, then, between "true crimes" and subjective mens rea requirements, and "regulatory offences" and objective mens rea requirements. Note that if only an objective mens rea requirement is necessary, one can a fortiori commit the offence subjectively (e.g.: dangerous driving is negligence based, but if I deliberately drive dangerously I am just as guilty of the offence); but the converse is not true  (in ordinary circumstances, I can only commit murder by having subjective foresight of death, not because a reasonable person would have known that death might follow).

One complication is that the commission of an offence may involve a combination of both subjective and objective fault requirements. Another complication is that there may not be complete symmetry between the actus reus and the mens rea requirement. In order to understand, how these complications operate, it may be useful to take the example of the Creighton case. There the Court had to determine what the mens rea for unlawful act manslaughter was. The logic of symmetry between actus reus and mens rea would have dictated that one anticipate a mens rea in relation to the defining element of the actus reus, namely the resulting death. This was the reasoning of the strong minority judgement by Lamer et al, who considered that there should be objective foreseeability of death. The majority (based on LaForest's concurring opinion) decided that all that was necessary for unlawful act manslaughter was "objective foreseeability of the risk of bodily harm which is neither trivial nor transitory." In other words if a reasonable person would have known that administering cocaine (an unlawful act) would lead to the risk of significant harm, then that person will be liable for the death (even if that death was not foreseeable by a reasonable person).

This safeguards the actus reus thin skull principle and the idea that you should take you victim "as you find her" by not allowing persons to claim that a reasonable person would not have known that death would ensue because it was not reasonable to expect death in the circumstances. There is a strong deterrent element involved: do not commit unlawful acts that might cause harm that is neither trivial nor transitory, because if someone dies as a result you will be guilty of manslaughter even if the death occurs in unforeseeable circumstances. Note that the standard preserves the narrow possibility that if you caused someone's death who had a "thin skull" characteristic (at the level of actus reus), but that if it was not even foreseeable that you would risk bodily harm that is neither trivial nor transitory, then you would indeed be found innocent (because morally not blameworthy).

Although largely seen as an inevitable and, by some at least, desirable development, this has also created unease for many criminal lawyers and scholars. Whilst few today would reject entirely the possibility of criminal liability by negligence, the debate has shifted towards which crimes can be strict or even absolute liability offences, and which ought properly to only be considered subjective liability ones. Paradoxically, a countervailing form of hyper-moralization of the criminal law, driven by penal populism,  has simultaneously led to the dramatic allocation of blame to individuals who are not subjectively blameworthy of certain offences but "ought to have known better" or simply committed crimes in the pursuit of other crimes. This is the case of notorious "felony murder" Statutes, originally quite common in the common law but today mostly found in the US (and Australia), which render liable as accomplices or even principals individuals who participated in a felony which led to a murder being committed, even though the occurrence of such a murder was not wished nor even known by the accused.

In this session we will discuss the effort to challenge felony murder statutes either on the basis of fundamental principles of the criminal law or human rights judicial review. The Canadian Supreme Court's case law stands out in this worldwide (or at least common law debate) as having taken a particularly high ground when it comes to the requirement of a subjective mens rea for murder. In particular, the courts have been wary of Parliament substituting another mens rea for what ought to be an "essential element" of an offence. We will also see, however, that courts have displayed flexibility in accepting that criminal liability may be incurred even in cases where no subjective mens rea is involved in relation to all the elements of the offence. 



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