Actus reus and mens rea are two essential elements of the criminal offence. The prosecution (the Crown) must establish both of these elements, beyond a reasonable doubt.
Actus reus
The actus reus, or “guilty act” in latin, is the guilty action that caused the offence. In the majority of cases, actus reus is a positive action (for example, voluntarily hitting a person). However, it may also take the form of a failure to act (for example, a hit-and-run).
In some cases, the essential element in establishing actus reus is the consequence, or result, that follows the act or omission. Infringements of result require a causal link. Indeed, it would be problematic to punish a person whose action did not contribute to the result of the offence (for example, the offence of homicide).
Similar to civil liability, for certain offences (e.g. homicide), there are two types of causation:
- factual causation;
- and legal causation.
Factual causality refers to how the victim died medically, mechanically or physically. It is generally possible to establish a causal link by considering whether the result would have occurred but for the act or omission of the accused. For example, simple medical evidence proving that the accused’s action caused the crime is sufficient.
On the other hand, legal causality, or imputable causality, is based on legal considerations and principles of interpretation. These considerations and standards have evolved over the years. Previously, the Court applied the de minimis standard, a very weak standard that places responsibility on the accused as soon as his action contributes to the crime in a “more than minor” way.
This standard was adopted, notably, in 1977 in the Smithers decision, a judgment in which the accused was convicted of manslaughter after kicking the deceased. According to the medical evidence, the death was due to aspiration of foreign bodies following vomiting and that the malfunction of the deceased’s epiglottis may have been caused by the kick of the accused, Smithers. In 2001, the Court reformulated the de minimis test for a “case that has made a significant contribution” or in a manner that is not negligible or insignificant.
Smithers also asserted that the thin skull doctrine applies in criminal law. This principle, more commonly applied in civil law, indicates that the accused is liable for the entirety of the injury, even if it is of a greater magnitude than could have been expected because of a pre-existing condition or circumstance of the victim.
The above principles have been modified by the courts over the years, but Smithers remains an important judgment on causation tests in Canadian criminal law.
Mens rea
Mens rea, or “guilty mind” in latin, is the state of mind that must accompany an act, or omission, for that act to be legally considered an offense. There are two types of mens rea: subjective mens rea and objective mens rea. Different offences require a different mental state. However, the mens rea required can be determined by consulting the text of the Criminal Code.
Objective mens rea is a standard of comparison between the mental state of the accused and the mental state of a reasonable person. Indeed, in order to prove the objective mens rea , it must be proved that a reasonable person could have perceived the harm that the infringement would cause. Manslaughter generally places the onus on the prosecution to prove objective mens rea.
For example, in Creighton, the defendant injected a hard drug into a friend, Martin, who was fully consenting. Martin started having seizures and stopped breathing. Creighton was unable to resuscitate her, and was later charged with manslaughter. Obviously, Creighton had neither the intention nor the desire to cause death to his friend. However, the Court held that a person intending to cause bodily harm that he or she knows is likely to cause death to another person is guilty of manslaughter. Like any reasonable person, Creighton could infer that injecting drugs into the body of others is an activity of a dangerous nature that could cause the death of that person.
Subjective mens rea requires the court to analyze the mental state of the accused in a more “personal” way in order to avoid neglecting the socio-economic context that may have led the accused to commit a criminal offence. This type of mens rea is increasingly popular and respected, as it promotes the principle of individualization in Canadian courts. While there is generally a presumption of subjectivity, legislators draft provisions of the Criminal Code to reveal whether judges must take a subjective or objective approach.
In order to prove a subjective mens rea , the prosecution will have to look at the following criteria: intention, know-how or willful blindness, and recklessness.
- Intention is simply the accused’s disguised motive;
- Knowledge or willful blindness arises when a person knows a fact, or is able to know a fact, but prefers to remain in ignorance;
- Recklessness is the indifference of the accused to the risks or consequences of an action.
In A.D.H., a woman gave birth to a child in a public washroom, unaware that she was pregnant. Thinking the child was dead, his biological mother abandoned him and left. Fortunately, the child was found and is now safe and sound. The woman was charged with unlawfully abandoning a child under the age of 10. The question is whether her mental state should be judged subjectively (for example, the knowledge she had at the time of the child’s abandonment) or objective (for example, the knowledge a reasonable person would have in her situation). The Court ultimately adopted a subjective approach and analyzed several criteria revealing the accused’s personal circumstances, such as his level of education and limited understanding of the crime and its consequences. The accused could not be convicted of abandoning a child, as she did not intend to, or have the knowledge to, abandon a child.
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