to Answers Example Offences Professor Tollefson Set out below are sample answers to the question "Describe the mens rea, if any, for the following offences." The offences can be found in a separate document. Please try to come up with your own answers, before looking at these sample answers. 1. a. b. c. d. WATER PROTECTION ACT PROBLEM Mens rea: Strict liability There is language of "due diligence" and this indicates strict liability. Express language of mens rea governs, subject only to constitutional constraints. There is no constitutional constraint in this case. Strict liability means that once the Crown proves actus reus beyond a reasonable doubt, the accused can advance a due diligence defence (SSM). Strict liability for regulatory offences is constitutionally valid, in respect to both the level of fault (absence of reasonable care) and the reverse onus: Wholesale Travel.
2. a. b. c. d. e. f.
CRIMINAL CODE ANIMAL HARM PROBLEM Mens rea: recklessness or more... There is express language of mens rea: "wilfully" Express language of mens rea governs, subject only to constitutional constraints. There is no constitutional constraint in this case. Normally, "wilfully" has been interpreted to mean "intentionally" (Buzzanga and Desrocher) Intent means that the accused desired or sought the proscribed harm (direct intent) or desired or sought some other end, but it was certain or virtually certain that the proscribed harm would be the result (indirect intent) (Hibbert) However, in this case, "wilfully" has a special meaning. Remember that I told you that you have to be alive to definitions of words that might be in s. 2 of the Code or in the opening section to each part of the Criminal Code? Section 429, found near the beginning of Part XI of the CC, expands the meaning of "wilfully" to, effectively, include recklessness. For the purposes of this section, then, the mens rea is "wilfulness" as defined in s. 429.
3. a. b. c. d. e.
TOBACCO ACT PROBLEM Mens rea: Strict liability There is no express language of mens rea. One must look to the nature and seriousness of the conduct and the seriousness of the penalty to determine if it is a true crime or regulatory ("public welfare") offence (Sault Ste Marie) This offence is about raising standards of conduct regarding the sale of tobacco in order to protect health. One might say it is mala in prohibita. The penalty is also exclusively monetary. This is arguably a regulatory offence. In the absence of express words of mens rea, the mens rea for regulatory offences is strict liability. Strict liability is defined in 1(d) above. 1
4. a. b. c. d. e. f. g.
FERTILIZER ACT PROBLEM Mens rea: Any subjective form There is no express language of mens rea One must look to the nature and seriousness of the conduct and the seriousness of the penalty to determine if it is a true crime or regulatory ("public welfare") offence (Sault Ste Marie) This offence concerns the prohibition of the sale of fertilizer containing destructive ingredients. It has elements that look regulatory, but it also has a fairly stiff penalty and speaks of the offence being punishable as "an indictable offence". If one concluded that this was a regulatory offence, in the absence of express words of mens rea, the mens rea for regulatory offences is strict liability. Strict liability is defined in 1(d) above. One might also conclude that this is a true crime. The mens rea for true crimes with no express language is any subjective form of mens rea (Buzzanga and Desrocher) As such, intent, knowledge, wilful blindness, or recklessness will suffice. Intent means direct or indirect intent (defined in question 2(e) above). Recklessness "involves knowledge of a danger or risk and persistence in a course of conduct which creates risk that the prohibited result will occur" (Sansregret). Knowledge means actual subjective knowledge of a fact or state of affairs. Wilful blindness "arises where a person who has become aware of the need for some inquiry declines to make that inquiry because he does not wish to know the truth" (Sansregret). Wilful blindness always suffices as an alternative way of proving knowledge: Duong.
5. a. b. c. d. e.
CONTROLLED DRUGS AND SUBSTANCES ACT PROBLEM (just focus on 6(1), not 6(2)) Mens rea: Any subjective form There is no express language of mens rea One must look to the nature and seriousness of the conduct and the seriousness of the penalty to determine if it is a true crime or regulatory ("public welfare") offence (Sault Ste Marie) This offence involves the prohibition on the importation or exportation of narcotics. It threatens up to life imprisonment. It is a true crime. The rea mens for true crimes with no express language is any subjective form of mens rea (Buzzanga and Desrocher) As such, intent, knowledge, wilful blindness, or recklessness will suffice. See 4(g).
6. a. b. c. d.
FISH INSPECTION ACT PROBLEM Mens rea: Absolute liability There is express language of mens rea: it removes a defence of due diligence This makes it an absolute liability offence Express language of mens rea governs, subject only to constitutional constraints. Absolute liability means that once the Crown proves actus reus beyond a reasonable doubt, liability attaches. No defence based on an absence of mens rea is available. 2
e. This is unconstitutional on the face of this provision because it combines absolute liability with a risk of a deprivation of liberty, contrary to s. 7 of the Charter (BC Motor Vehicles) f. [However, absolute liability offences seem to be saved from unconstitutionality in B.C. owing to s. 6 of the B.C. Offence Act, which states that "Despite section 4 or the provisions of any other Act, no person is liable to imprisonment with respect to an absolute liability offence." Since imprisonment is "off the table," on the authority of Pontes, the constitutional problem disappears.]
CRIMINAL CODE OFFENCES 7. a. b. c. d. e. s. 131 Mens rea: intent (to mislead) and knowledge (of the falsity of the statement) There is express language of mens rea Express language of mens rea governs, subject only to constitutional constraints. There is no constitutional constraint in this case. Note that whenever "knowledge" is the prescribed mens rea, wilful blindness will also suffice (Sansregret) Intent is described above in 2(e). The mens rea of "knowing" (and its alternative "wilful blindness") are described in question 4(g). s. 174 Mens rea: Any subjective form There is no express language of mens rea Since this is a Criminal Code offence, this is presumptively a true crime (Prue and Baril) The mens rea for true crimes with no express language is any subjective form of mens rea (Buzzanga and Desrocher) As such, intent, knowledge, wilful blindness, or recklessness will suffice. See 4(g). s. 86 Mens rea: Penal negligence There is express language of "carelessness" and "reasonable precautions" in a Criminal Code offence This is penal negligence (Hundal) Express language of mens rea governs, subject only to constitutional constraints. Penal negligence involves a marked and substantial departure from the conduct of a reasonable person (Hundal) There is no constitutional constraint in this case.
8. a. b. c. d. 9. a. b. c. d. e. 10.
s. 245 Mens rea: Any subjective form a. There is no express language of mens rea b. Since this is a Criminal Code offence, this is presumptively a true crime (Prue and Baril)
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c. The mens rea for true crimes with no express language i...