Objective Mens Rea Revisited

Abstract

Since the enactment of the Canadian Charter, the criminal law concept of mens rea has evolved significantly. The objective standard of fault — or objective mens rea — has been the subject of much doctrinal and theoretical examination. Where proof of objective mens rea is required, an accused can be convicted because their dangerous conduct constituted a marked departure from the norm and a reasonable person would have foreseen and avoided the risk. In this article, it is argued that there are two groups of concerns related to the concept of objective mens rea in Canadian law. On the one hand, there are culpability-related concerns. Culpability for objective mens rea can be difficult to justify in a system of criminal law premised on rationality, choice, and fair stigmatization. On the other hand, there are constitutional concerns. Subjective awareness of a risk of harm to others should be constitutionally required in certain contexts. This is most notably the case where the accused can be stigmatized for having killed another person and is liable to life imprisonment. Due to these two groups of concerns, objective mens rea should be revisited accordingly.