The Constitutionalization of 'Fault' in Canada: A Normative Critique

Abstract

A present day law student in Canada may be forgiven for assuming that the law has always required that before an act may be termed 'criminal' there must be a union of prohibited conduct (actus reus) with a blameworthy state of mind (mens rea). Modern courses in criminal law frequently begin their discussion of mens rea with the Supreme Court of Canada's decisions in Sault Ste. Mariel and the Motor Vehicle Reference. Often forgotten is the history of the law prior to the Supreme Court's transformation of a minimal mental element into a constitutional requirement.

Originally at common law there was no consideration given to an actor's state of mind in determining criminal liability. In fact the need for mens rea only gained a firm foothold in the law during the 17th century. At its inception the notion of mens rea had a significantly different meaning than that ascribed to it by contemporary English theorists and the Supreme Court of Canada. Recent Canadian developments are rarely viewed through an historical prism. Instead, assumptions abound about the nature and meaning of mens rea. Seldom questioned are the sources for these assumptions and the theoretical ramifications of the current conception of mens rea in Canada.