Friday, May 17, 2013

It is presumed that Parliament intends crimes to have a subjective fault element

R. v. A.D.H., 2013 SCC 28, just released, holds child abandonment requires a subjective fault to be proven.  In so doing the Court notes a presumption that crimes require a subjective fault:
An important part of the context in which we must interpret s. 218 is the presumption that Parliament intends crimes to have a subjective fault element.  The Court has stated and relied on this interpretative principle on many occasions:  see, e.g., Watts v. The Queen, [1953] 1 S.C.R. 505, at p. 511; R. v. Rees, [1956] S.C.R. 640, at p. 652; Beaver v. The Queen, [1957] S.C.R. 531, at pp. 542-43; R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, at pp. 1303 and 1309-10;  R. v. Prue, [1979] 2 S.C.R. 547, at pp. 551 and 553; R. v. Bernard, [1988] 2 S.C.R. 833, at p. 871; R. v. Martineau, [1990] 2 S.C.R. 633, at p. 645; R. v. Théroux, [1993] 2 S.C.R. 5, at p. 18;  R. v. Lucas, [1998] 1 S.C.R. 439, at para. 64. Perhaps the classic statement is that of Dickson J. (as he then was) for the Court in Sault Ste. Marie:
In the case of true crimes there is a presumption that a person should not be held liable for the wrongfulness of his act if that act is without mens rea . . . .

. . . . Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Mere negligence is excluded from the concept of the mental element required for conviction. Within the context of a criminal prosecution a person who fails to make such enquiries as a reasonable and prudent person would make, or who fails to know facts he should have known, is innocent in the eyes of the law. [Citations omitted; pp. 1303 and 1309-10.]


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So ignorance of the law IS a defence?

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