THE SHIFTING BASIS OF CRIMINAL LAW
Alan W. Mewett*
I
Actus non facit refun nisi mens rca sit has a stirring, if slightly incomprehensible
ring, but we all know that it really does not mean what it purports to say.
Innocence is not the same as blamelessness and guilt is not the same as cul-
pability, nor can criminal responsibility be equated with criminal intent.
Intent is a concept which permeates the whole of the criminal law and yet
remains incapable of providing any certain or simple key to criminal liability.
If one intends to do an act, one may intend it in the sense that one’s mind is
directed towards the performance of the physical act, but one may not intend
the consequences which flow from the commission of that act. Alternatively,
when one talks about an intentional act, one may mean that not only the
physical act but also the ensuing consequences are intended.
For example, if one has sexual intercourse with a girl under the age of
fourteen years, one may (and doubtless does) intend the act of intercourse,
but one may not intend the intercourse to take place with a girl under the age
of fourteen. The act is sexual intercourse, but the consequences are sexual
intercourse with an under-age girl. To say that intention is a requisite part
of such an offence’ means nothing unless one has determined to what the
intention applies. In this particular case, of course, the Code solves the problem
by expressly providing that ignorance of the age of the girl is not a defence.
Similarly, one may intend the act of selling a novel or a periodical, but not
intend that this should be the selling of obscene matter.2 Again, the Code
provides that ignorance of the fact that the matter is obscene is not a defence.
In these cases the offender is blameless as far as desiring the consequences
of his act is concerned, but the act itself is voluntary in the sense that he fully
intends to commit the actual physical act in question. His “innocence”
lies
in his being unware of a salient factor which affects the consequences of his
act, knowledge of which would, one may posit, have deterred him from com-
mitting the act. It only confuses the problem to say that his act is “intended”.
Such cases are very different from those in which the will of the accused is
not even directed toward the physical act at all. For example, a person may
possess a packet of narcotic drugs3 which, unknown to him, has been slipped
into his pocket, or he may have an unregistered firearm 4 in his house without
*Faculty of Law, Queen’s University, Kingston, Ontario.
‘Criminal Code s. 138.
2C.C. s. 150(6).
3Narcotic Control Act, 9- 10 Eliz. II, S.C. 1961, c. 35.
1C.C. s. 90.
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SHIFTING BASIS OF CRIMINAL LAW
knowing that it is there at all. Different, again, are those circumstances in
which a person does not intend the particular consequences of his act which
actually ensue, but does intend other consequences which are criminal in
nature. Liability may attach regardless of intent. For example, the person
who aids and abets another to commit one offence may be responsible for
acts completely unintended by him5 or a person causing death in the commission
of robbery may be guilty of murder although death was unintended and un-
desired. 6
The tendency to equate, in criminal law, the principle of intent with the
principle of responsibility is natural. It is difficult to envisage that the criminal
law serves any useful purpose in inflicting criminal sanctions upon unintended
acts, for if its ultimate purpose is deterrence (by whatever means this might
be achieved) one is only deterred by an appreciation of the acts which are
proscribed. But this, as is apparent, is an oversimplification of the problem.
The punishing of acts of sexual intercourse with girls under the age of fourteen
deters at least in the sense that one is aware of the risk involved in having
sexual intercourse with any young girl, whether one actually knows her to
be under fourteen or not. To be found guilty of selling obscene matter without
knowing that the matter is obscene, at least makes one more careful in offering
for sale dubious literature. On the same level, it is not pointless to punish
criminally certain types of negligence, 7 for negligence necessarily implies that
one could have been more careful.’ Whilst, therefore, one may agree that the
criminal law would appear to serve no purpose in punishing acts which are
involuntary, one does not necessarily have to agree that it serves no purpose in
punishing acts with unintended consequences. Indeed, there is no other rationale
behind the concept of constructive murder,I except that certain types of offenders
assume liability for death which occurs in the course of one of the circumstances
listed under the Code, whether death is intended or not. Section 202(d) is,
indeed, the only example which I can find in the Code of liability attaching
to even an involuntary act, where, it would appear, a person is guilty of murder
if death ensues as a consequence of a person merely having a weapon on his
person during the commission of one of the listed offences. But even there,
one assumes that the having of the weapon on one’s person is a voluntary
act, even if the death is not.
There have been a number of recent decisions both in England and Canada
where the problem of the “intentional” and “voluntary” nature of the act
5C.C. s. 21.
‘C.C. s. 202.
7Hart, “Negligence, Mens Rea and Criminal Responsibility”, in Oxford Essays in Jurisprudence,
(Guest ed., 1961), p. 28; Williams, Criminal Law (1953), p. 100; Hall, Criminal Law (1960), p. 105.
Contra, Turner, “The Mental Element in Crimes at Common Law,” in Modern Approach to Criminal
Law (1945), p. 195.
8Hart, op. cit.
-C.C. s. 202.
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has arisen. The facts of Smith v. D.P.P.1 are probably well-known. The
accused was charged with the murder of a policeman who had attempted to
stop his small car in which were some stolen goods. Smith, instead of stop-
ping, speeded up, with the policeman hanging on to the car, his legs trailing
on the ground. The accused drove through traffic at an increasing speed,
bumping the policeman against oncoming cars, wishing, as he stated in his
defence, only to knock the policeman off. Eventually, the officer was dis-
lodged, run over by another car, and killed. One would have thought that
there would be little difficulty in finding Smith guilty of murder on these
facts, but to meet the defence that the accused did not intend any grievous
bodily harm to the policeman, the jury were instructed as follows:”
If you are satisfied that when he drove his car erratically up the street, close to the traffic on
the other side, he must as a reasonable man have contemplated that grievous bodily harm
was likely to result to that officer still clinging on, and that such harm did happen and the
officer died in consequence, then the accused is guilty of capital murder…
Such a direction could, and perhaps did,12 mean only that if the jury did not
believe Smith’s story that he did not intend grievous bodily harm (because it
was unreasonable to suppose that he could not have intended such harm), it
could find him guilty of murder. The Court of Criminal Appeal held, how-
ever, that, reasonably interpreted, the direction meant that the jury were to
find the intent of the accused not from what he actually intended but from
what a reasonable man in his position would have intended.13
The conviction for murder was restored in the House of Lords on what
appears to be the ground that the determination of intent is, indeed, an objective
application of the standard of the reasonable man:
The jury must, of course, in such a case as the present, make up their minds on the evidence
whether the accused was unlawfully and voluntarily doing something to someone… Once,
however, the jury are satisfied as to that, it matters not what the accused in fact contemplated
as the probable result, or whether he ever contemplated at all, provided he was in law respon-
sible f6r his actions, that is, was a man … not insane within the M’Naghten rules … On
the assumption that he is so accountable for his actions, the sole question is whether the
unlawful and voluntary act was of such a kind that grievous bodily harm was the natural
and probable result. The only test available for this is what the ordinary, responsible man
would, in all the circumstances of the case, have contemplated as the natural and probable
result. 4
Such a view has nothing, of course, to do with any presumption that a man is
presumed to intend the natural consequences of his act. That is a mere evi-
dentiary presumption, and may have been what the trial judge meant by his
direction. The view of the House of Lords is that one is liable not for what
one does intend but for what the reasonable man would have intended.1″
‘501961] A.C. 290; [1960] 3. All E.R. 161.
“Ibid., p. 325.
‘-See note by Professor H. R. S. Ryan in (1959-60) 3 Cr.L.Q. 305.
13[1961] A.C. p. 297.
11[1961] A.C. 290, at p. 327, per Kilmuir, L. C.
‘5Whether this is what the House meant is not clear, but it is certainly what their Lordships
said. See Denning, Rersponsibility Befort the Law (1961).
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SHIFTING BASIS OF CRIMINAL LAW
In the case of A.G. for Northern Ireland v. Gallagher,16 the accused was charged
with the murder of his wife. He was of a psychopathic disposition which was
quiescent, only manifesting itself after the consumption of alcohol. The
evidence appeared to support the view that the accused formed the intention
of killing his wife, buying for that purpose the necessary apparatus, and then
proceeded to drink himself into a drunken state which produced a consequential
insanity within the McNaughten Rules (regarding the facts in the light most
favorable to the accused). The trial judge instructed the jury, in effect, that
the defendant could not rely upon his self-induced drunkenness as a defence
and that the test for insanity had to be applied at the time of consuming the
alcohol, not at the time of killing the woman. The House of Lords upheld
this direction. Furthermore, Lord Denning, in the course of his speech elabo-
rated on the defence of drunkenness :17
… the case falls to be decided by the general principle of English law that, subject to very
limited exceptions, drunkenness is no defence to a criminal charge, nor is a defect of reason
produced by drunkenness.
And further:1 8
My Lords, I think the law on this point should take a clear stand. If a man, whilst sane and
sober, forms an intention to kill and makes preparation for it, knowing it is a wrong thing
to do, and then gets himself drunk so as to give himself Dutch courage to do the killing, and
whilst drunk carries out his intention, he cannot rely on this self-induced drunkenness as a
defence to a charge of murder, nor even as reducing it to manslaughrer.
One further recent decision of the House of Lords which should, perhaps,
be mentioned is that in Bratty v. A.G. for Northern Ireland5 in which the accused
was charged with the murder of a young woman. The accused stated that at
the time of the act, “a sort of blackness” had come over him and he raised
three defences: first, that he was in a state of automatism at the time of the
act and should therefore be found not guilty, second, that he lacked the
intent necessary for murder and should therefore be found guilty of man-
slaughter only and, third, that he was insane at the time of the act and should
therefore be found guilty but insane. The jury found the accused not insane,
so the last defence failed. The trial judge refused to leave the first two defences
to the jury and his decision was upheld by the House of Lords. The man-
slaughter argument was disposed of on the simple grounds that, in view of the
circumstances of the case, there was no evidence to be left to the jury that
the accused lacked the intent necessary for murder. Finally all the members
of the House of Lords agreed that where the only evidence of automatism
arose out of some defect of reason (in this case psychomotor epilepsy), the
16[19611 3 W.L.R. 619; [1961] 3 All E.R. 299.
171bid., at p. 639.
18Ibid., at p. 641.
29[1961] 3 W.L.R. 965; [1961] 3 All E.R. 523.
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defence must stand or fall on the question of insanity. Viscount Kilmuir
stated :20
Where the possibility of an unconscious act depends on, and only on, the existence of a defect
of reason from disease of the mind within the M’Naghten Rules, a rejection by the jury of
this defence of insanity necessarily implies that they reject the possibility.
Automatism is thus reaffirmed as a defence only in limited circumstances.
It
is for the prosecution to prove every element of the offence, including the
state of mind of the accused. 2′ As Lord Kilmuir points out, “normally the
presumption of mental capacity is sufficient to prove that he acted consciously
and voluntarily and the prosecution need go no further”.22 The accused may
then, subject to what was said in Bratty,23 plead automatism as a defence.
Presumably, it must follow, that if the accused chooses not to plead in-
sanity, but to rely on the defence of automatism only, he is entitled to have
this defence left to the jury, whether or not the automatism springs from a
defect of reason. Does this mean, therefore, that a person who acted clearly
under a defect of reason which produced automatism may escape all criminal
liability by pleading not insanity but the defence of automatism? Lord Denning
suggested2 4 that since automatism is a defence involving the state of mind of
the accused, once it has been raised, “the prosecution are entitled to raise
[the defence of insanity], and it is their duty to do so rather than allow a dan-
gerous person to be at large”. It is doubtful whether this view represents the
law either in England or in Canada.25
In this country, also, there have been several recent decisions of importance
in this enquiry, beginning with the case of R. v. Rees,2
1 in which the accused
was charged with “knowingly and wilfully” contributing to juvenile delin-
quency in that he had sexual intercourse with a girl under the age of eighteen
years with her consent. At the time of the act, he reasonably believed the
girl to be over that age. The majority of the Supreme Court of Canada held
that the accused could not be convicted on the grounds that the phrase “know-
ingly and wilfully” applied to all the elements of the offence including the
fact that the girl was under the age of eighteen years. Fauteux, J. dissented
on the grounds that the phrase applied only to the act –
in this case sexual
intercourse –
in this case that the girl was only
sixteen. He said:2 7
and not to the consequences –
A person contributing to the delinquency of a juvenile assumes the risk that the opinion he
forms from appearance as to the age be not the one taken by the trial Judge. Under the Act,
20Ibid., at p. 973.
“2 Woolmington v. D.P.P. [1935] A.C. 462.
22lbid., at p. 977.
23[1961] 3 W.L.R. 965.
21bid., at p. 980.
2R. v. Dixon [19611 1 W.L.R. 337; R. v. Price [1962 3 All E.R. 957; Felstead v. R. [1914) A.C. 534.
21[1956] S.C.R. 640.
27Ibid., at p. 658.
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SHIFTING BASIS OF CRIMINAL LAW
knowledge of the actual age is not of the essence of the offence; appearance is sufficient, failing
the best evidence as to the age. In any respectful view, Parliament did not intend that the
operation of the section be dependent upon the views an accused might form from appearance.
What Parliament clearly intended is the protection of children.
A similar divergefice of views is to be found in the later case of R. v. Beaver”8
where the accused was charged with the possession of a narcotic drug. His
defence was that he thought the substance to be harmless. Again, the majority
of the Supreme Court held that the accused was not guilty of possessing a
narcotic drug, if he did not know that what he. was possessing was a drug.
Fauteux and Abbott, JJ. dissented:29
[The Act] is indicative of the intent of Parliament to deal adequately with the methods, which
are used in the unlawful traffic of drugs to defeat the purpose of the Act, ingenious as they
may be. That the enforcement of the provision of the Act may, in exceptional cases, lead to
some injustice, is not an impossibility…
More recently, the Supreme Court decided the case of R. v. King50 where the
accused was charged with the offence of driving while impaired by drugs. He
had visited a dentist and been given an injection of sodium pentothal. He
stated that his head was clear when he left the dentist’s office, although he
became unconscious soon after and had a slight accident with another car. He
was warned not to drive “until head clears”, and sat in the recovery room for
some time. The majority, concurring with a judgment of Ritchie, J. held
that the accused could not be convicted on the grounds that the section re-
quires mens rea, and that the accused had shown that he lacked the mens rea
necessary;
The existence of mens rea as an essential ingredient of an offence and the method of proving
the existence of that ingredient are two different things, and I am of the opinion that when it
has been proved that a driver was driving a motor vehicle while his ability to do so was im-
paired by alcohol or a drug, then a rebuttable presumption arises that his condition was
voluntarily induced and that he is guilty of the offence created by s.223 and must be convicted
unless other evidence is adduced which raises a reasonable doubt as to whether he was, through
no fault of his own, disabled when he undertook to drive and drove, from being able to
appreciate and know that he was or might become impaired. 3′
Locke and Judson, JJ. were in favour of dismissing the appeal but held that,
on the finding of fact made by the trial judge, the accused had been properly
convicted, inasmuch as there was ample evidence to indicate that he was
aware of the risk involved in driving a car after the injection. Since, however,
the Court of Appeal had quashed the conviction in spite of this finding of fact
and since the Crown had not appealed on that ground, both judges agreed
that the appeal should be dismissed. In the Court of Appeal, MacKay, J., who
dissented, had held that s.223 is an offence of strict liability and, even if it
were not, the accused had not proved “that on reasonable grounds he had an
2s[1957] S.C.R. 531.
5 5Iid., at p. 554.
30(1962) 35 D.L.R. (2d) 386.
31lbid., at p. 400.
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honest belief in a state of facts which if true would entitle him to an acquittal”.12
This was the view which found favour with Locke and Judson, JJ. in the
Supreme Court.
II
The thesis I now wish to put forward is this. Whatever language is being
used by the courts, the result of these, and other recent cases, is that in England
there has been a marked move away from any traditional concept of mens rea
as the basic element of a criminal offence, while in Canada most judges appear
to be clinging to the traditional concept. In D.P.P. v. Smith,33 the House of,
Lords found the accused guilty of an act which he did not, in fact, intend
(again, interpreting the facts most favourably to the accused) because a reason-
able man would have intended the act had he done the same thing. Gallagher’
appears to stand for the, at first sight, startling proposition that if a person
ever intends the consequences of an act, he is guilty of those consequences even
though he did not intend them at the time he actually committed the act.
At exactly the same time as these cases were being decided, the Supreme Court
of Canada, by a majority in every case, has been reaffirming a precise and
definite necessity of proof of mens rea in the sense of a subjective intention of
achieving the consequences of one’s act.
The choice lies between accepting the difficult, often inappropriate and
frequently misunderstood principle of “intent” as the basis of criminal responsi-
bility or developing what the House of Lords and the dissenting judges in
Canada are moving towards, namely a principle of “risk”, a concept which
would fix criminal liability upon an accused, not where he intends the conse-
quences of his act, but where the consequences of his act can fairly and reason-
ably be said to be within the risk involved in his act.
To say that one is raising the defence of lack of mens rea does not, in itself,
mean very much. It may mean that there has been no requisite actus reus, as
where the accused is in a state of automatism,”s or at the other extreme, it
may mean that there has been an actus and intent but the accused should not
be held responsible, as where he is acting under duress.3″ The following are
some examples of situations which may be embraced by the defence of no
mens rea. They show the difficulties inherent in attempting to subsume so
many diverse defences under the one head.
1. Automatism. The concept that a person may act in circumstances in which
his mind is a complete blank does give rise to considerable difficulties in the
criminal law. The opinions in Bratty are not entirely satisfactory if only for
the reason that they leave so many questions unanswered, but, as Lord Denning
-[1961] O.W.N. 37, at p. 52.
33[1961] A.C. 290.
41[1961] 3 W.L.R. 619.
‘5R. v. King (1962) 35 D.L.R. (2d) 386, at p. 387 per Taschereau, J.
36R. v. Steane [1947] K.B. 997; [1947] 1 All E.R. 813.
No. 2]
SHIFTING BASIS OF CRIMINAL LAW
pointed out,37 automatism is not the defence of merely saying, “I do not re-
member what happened”. It is a defence which must necessarily posit that
If the
there was no mind at all at the time when the act was committed.
House of Lords is right in withdrawing from instances of automatism those
cases where the mind is a complete blank through insanity or drunkenness,
we are left with the relatively unusual cases of sleepwalking, hypnotic trances,
concussions, and the like. Why should the sleepwalker who kills someone not
be held criminally responsible for his act? One can say that he lacked the
mens rea or one can say that there was no actus reus. Suppose, however, that it
happens three, four or five times, should he still be held not responsible? One
can, by merely extending slightly the principle enunciated in Gallagher,3″ reply
that if he knew such actions were likely when he was asleep, then he should
not sleep, or, to put it on a more sensible level, he should not sleep without
taking precautions adequate to meet the risk.
The consequences which result from a state of automatism may occur
when the actor’s mind is a complete blank, yet these consequences may be
desired (as in Gallagher or as in a case of voluntarily induced hypnotism).
Indeed, the state of automatism itself may be desired or self-induced with
knowledge that such consequences will or will probably ensue. If one’s en-
quiry into the existence of mens rea is directed solely to the time of the conse-
quences, as it must be directed if mens rea means anything at all, a person accused
under such circumstances should be not guilty. If one’s concern, however, is
with the risk which arises by virtue of the original act, such a person is guilty
of any offence committed during the automatism, if the factor which induces
automatism is voluntarily undertaken without due precautions being taken to
prevent those consequences occurring.
2. Drunkenness. The cases on drunkenness as a defence are most unsatisfac-
tory, 39 principally because, on the one hand, a person in a drunken state does
not “intend” acts in the same way as a sober person, but, on the other hand,
there is some thing undesirable in allowing a person to escape liability because
of his own self-induced intoxication. To say that drunkenness may be a defence
intent (whatever that might mean) but not
to offences requiring a “specific”
to offences where no specific intent is required might be a good excuse for re-
ducing a charge of murder to one of manslaughter, but it hardly gives any
adequate guide to the extent of such a defence. 40 Gallagher” is now good
authority for the proposition set out in Glanville Williams that:
Of course, the exempting rule would not help a man who deliberately gets drunk in order to
commit a crime. He may get drunk in order to give himself “Dutch courage” to do the deed,
37[1961] 3 W.L.R. 978.
31[1961] 3 W.L.R. 619.
39Some are reviewed in D.P.P. v. Beard [1920] A.C. 479.
40Williams, Criminal Law (1953), p. 570.
“‘r1961] 3 W.L.R. 619.
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or to fuddle his senses in the hope that he will not be held responsible.
If he had the requisite
intent at the time when he got drunk he can be properly convicted, even if he did not have it
at the time of committing the act. 42
Neither Dr. Williams nor the House of Lords explains why self-induced drun-
kenness for such a reason should not be a defence. The “specific intent” is as
lacking at the time of the commission of the act in this case as it is under any
other circumstances of drunkenness. Again, however, putting drunkenness
upon a different footing leads to an intelligible result. If one voluntarily
becomes drunk, one must assume the risk of committing all acts which drunken
men are likely to commit, regardless of the circumstances surrounding the
actual commission of that act.
3. Duress. An acquittal on the grounds of duress is difficult to support on
any theory of mens rea. Lord Goddard in the case of R. v. Steane” attempted
to put the defence on such grounds, where the accused was charged with doing
an act likely to assist the enemy with intent to assist the enemy. His defence
was that it was the only means he had of saving his wife and children from
a concentration camp. While it is true that he “intended” to save his family,
he knew perfectly well that his act would assist the enemy. This he “intended”
those consequences. Duress is an excuse and
even though he did not “desire”
the reason why it is an excuse lies not in the fact that there is no intention but
in the fact that there is no responsibility in spite of the intention. In view of
the statutory limitations of the Code, 4 4 perhaps it is better not to search for
any juridical basis for the defence of compulsion but to base it purely upon
sentiment –
a sentiment which excuses certain intended acts, provided that
they are not too serious.
4. Mistake. Most examples of lack of mens rea being a defence come under
cases of mistake, of the accused being ignorant of a matter of fact, knowledge
of which would have made him act differently. This is said to be a defence if
the mistake is reasonable and if the offence is one which requires mens rea.
If the mistake has to be reasonable only because no jury will believe a person
who alleges that he was labouring under an unreasonable mistake, then this
limitation does not need to be stated. If there is some juridical reason why the
mistake has to be reasonable, it can have nothing to do with a subjective
mens rea, since the intention is equally lacking whether the mistake is reasonable
or unreasonable. Furthermore, whether or not the offence is one which requires
mens rea depends solely upon whether it is one to which the ordinary principles
of mistake apply or not. The principle, I would suggest, is this: one is crimi-
nally liable for all the consequences of one’s act which are within the area of
the risk created by that act. What is within the area of the risk is determined
‘Villiams, op. cit., p. 379.
43[1947] K.B. 997.
44C.C. S. 17.
No. 2]
SHIFTING BASIS OF CRIMINAL LAW
by standards of reasonableness, but if the reasonable man were to have been
labouring under a mistake so as to think that the consequences are not within
the risk, then the accused is entitled to be acquitted. There are, however,
some instances in which the consequences are always within the area of risk
created by a certain act. In such cases, it is no defence for the accused, however
reasonably he acted, to assert that he did not contemplate such consequences.
To put it another way, in these cases, the risk of criminal consequences ensuing
is always upon the accused. 45
5. Vicarious liability. This may be considered as essentially the same problem
as the one just considered. There are not many instances of vicarious liability
in the criminal law, but they do exist. Where one is responsible for an act
being committed by others, it may, in some circumstances, be desirable that
one becomes criminally liable for the consequences of that act, even though
one does not act by oneself. This principle should, it is submitted, be very
limited, but is not, in itself, undesirable.
6. Negligence.’ 6 There is, of course, the gravest difficulty in ascribing any
coherent traditional concept of mens rea to criminal offences liability for which
is based upon some idea of negligence. 47 It is possible to talk about “advertent
negligence” or “recklessness” but it is impossible to talk about “intent” in
this context. In any case, the notion of advertent-negligence exists only to
squeeze a difficult concept into a pre-existing principle. Negligence consists
merely in committing an act without reasonable regard for the risks involved.
If the consequences which follow are within the risk, there is nothing illogical
in fixing criminal liability upon the actor. Generally speaking, civil sanctions
are sufficient to prevent negligent damage, but if they are not, criminal sanctions
may well be desirable. 43
If criminal negligence is any different from ordinary
civil negligence, the difference lies in the fact that the risks involved are greater
-that
is to say, the consequences will almost certainly result-whereas in the
latter, the consequences may result. Neither contains any element of “ad-
vertence” or intent, but both involve the commission of an act in such a way
as not to safeguard adequately against the risk of certain consequences.
7. Insanity. Why insanity should ever be a defence to any criminal charge is
a simple question which is not so easy to answer. While the reason may have
originated in feelings of sentiment alone-the feeling that it is not fair to
hang or imprison a lunatic-the McNaughten Rules base the defence upon the
concept of mens rea, inasmuch as the Rules themselves are directed solely to
the accused’s knowledge or appreciation 9 either of the act or of the conse-
45See the judgment of MacKay, J. in R. v. King [1961] O.W.N. 37.
“For general discussions, see the references in note 7, supra.
47See Turner, loc. cit., supra, n. i.
46Cf. Hart, loc. cit., supra, n. 7.
4″C.C. s. 16.
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quences of the act, implying that there is no room for sentiment merely because
the accused was insane. That it should be all right to hang or imprison some-
one who was insane but knew what he was doing but not someone who was
insane and did not know what he was doing is getting very close to saying
that it is not the insanity which is the defence, but the lack of mens rea (if,
that is, we can translate mens rea, in this context, as knowledge). This again,
is no different from saying that if the accused is labouring under a reasonable
mistake or under an unreasonable mistake and is insane, then he is not crimi-
nally liable, but if he is labouring under an unreasonable mistake and is not
insane or is under no mistake but is insane, criminal liability does attach.
Once more, it is difficult to see how this can be supported on any coherent
theory of mens rea.
III
What is happening in England, and what will happen in Canada, is that
the whole basis of criminal responsibility is shifting from a traditional (or,
at any rate, nineteenth century) concept of subjective fault, moral blame, or
mens rea, to a concept of the objective standards of a risk created by an act.
What I have set forth above, may not in fact, of course, be the law. But
neither is actus non facit reum nisi mens rea sit. It is difficult to perceive, at the
moment, any rational basis of criminal liability, because we are about to enter,
I suggest, a period of extreme confusion. A number of influences may be
responsible for this, of which I would suggest the following:
1. The increasing number of “statutory offences”;
2. Chaotic interpretations of the nature and function of the criminal law;
3. Inconsistent theories on the purpose of punishment or treatment;
4. The introduction, in England, of the concept of diminished responsi-
bility”0 ; and
5. The powers granted to the courts, in England, under the Mental Health
Act. 51
If the purpose of the criminal law can be explicitly stated as the punishing
of the wicked, criminal responsibility has to be based upon a concept of blame
for which mens rea might be a perfectly adequate term. If the criminal law is
to serve a wider purpose in society, such a concept, while it is workable, is
nearly always irrelevent. It is not possible to pursue the argument on what is
the proper purpose of the criminal law5 2 but I hope it is agreed that, at least,
it is not just to punish the wicked. If it is to prevent acts which are socially
5The Homicide Act, 5-6 Eliz. II, (U.K.) 1957, c. 11.
517-8 Eliz. II, (U.K.) 1959, c. 72.
2See the report of the Canadian Conference on Criminal Law in (1959-60) 3 Cr. L.Q. 327.
No. 2]
SHIFTING BASIS OF CRIMINAL LAW
harmful in some way, such acts may be committed by persons who are not
wicked but who produce just as harmful consequences as if they were. “I
didn’t mean to do it” may absolve the actor from “blame”, but if the act
could have been prevented nevertheless, the infliction of punishment may make
him and others more careful another time.
Statutory offences are good examples of criminal liability being imposed
irrespective of blame. Some acts we do at our own risk whether it be selling
produce which is, in fact, unfit for human consumption53 or possessing a
suspicious powder which might be a narcotic drug.54 These have always been
considered as rather exceptional types of offences and both the courts and
writers have traditionally taken great pains to limit the operation of such
statutes. And yet MacKay, J. in Regina v. King,5 5 in his dissenting judgment,
was prepared to accept such liability in statutory offences as being the rule
rather than the exception, on some very good authority. The effect of the
recent decisions of the House of Lords has been to apply somewhat similar
principles to the general criminal law. “I did not intend to do it” is not a
defence unless, on ordinary reasonable standards, what the accused did not
intend was also not within the area of risk created by the act he was doing.
I am aware that such a view has been generally condemned and very
effectively met.”6 But in England, I suggest, the introduction of the concept
of diminished responsibility and, more important, the provisions of the Mental
Health Act17 have been responsible for a radical but, as yet, barely perceived
change in the criminal law in that country. The change has been from what
might be called the moralistic approach to the totalitarian approach. The
criminal law is no longer an instrument for the punishing of the wicked but
an instrument for the enforcing of standards of conduct. Smith58 was guilty
because his act gave rise to prohibited consequences which he should have
foreseen; Gallagher59 was guilty because he knew what would happen if he
drank; Bratty 0 because his defence stood or fell solely on the question of
insanity.
This is a perfectly valid basis of criminal law,6 ‘ but its dangers must be
recognized before the opinions of the members of the House of Lords are
adopted in Canada. The Criminal Code is a nineteenth century document
3As in Watson v. Coupland [1945] 1 All E.R. 217.
54R. v. Beaver [1957] S.C.R. 531, although, of course, the Supreme Court took the opposite view.
65[1961] O.W.N. 37, at p. 46.
66By Jerome Hall, Dr. Glanville Williams and others.
7Supra, note 50. See Edwards, “Diminished Responsibility”, in Essays in Criminal Science.
6
68[1961] A.C. 290.
59[1961] 3 W.L.R. 965.
10[1961] 3 W.L.R. 619.
61As in the Russian Criminal Code. See M.S. Strogovich, “New Laws on the Judicial System” in
(1961) 1 Soviet Law and Government 33.
McGILL LAW JOURNAL
[Vol. 9
based upon moralistic precepts; the system of criminal sanctions is similarly
based; so are our prisons and penitentiaries. What does the criminal law
expect to do with offenders who are not wicked but are thoughtless or stupid?
If the criminal law is an instrument of the Church, there is no room for statutory
offences, for the illogical limitations of the McNaughten Rules, for offences
of negligence, for punishing any save the wicked. The criminal sanction is
perfectly properly based solely upon punishment. If the criminal law is an
instrument of the state, many people must be convicted who are not morally
blameworthy; many acts give rise to the risk of socially harmful consequences
whether they are intended or not. “I didn’t mean to do it” is perfectly well
met by the reply, “Be more careful next time”.
But if this is the attitude which is to be adopted, the criminal sanction
cannot remain a moralistic one. It, too, must change to accord with the new
approach to criminal law. The reason why the criminal law has changed in
England is because the courts have so much more power than those in this
country. Why should insanity, for example, ever be a defence to a criminal
charge, if, after a verdict of guilty there is some adequate (or as adequate as
we presently know) method of dealing with the offender? Or even if the verdict
is not guilty? Why should King 2 have not been found guilty, if, after the
verdict he could have been discharged? After all, King was no danger to
society, but he might have been, and the next one might be. If Gallagher and
Bratty receive treatment, instead of being hanged by the neck until dead, has
any injustice been done?
For the views of MacKay, 6 Locke,6 4 Fauteux 5 and Abbott, JJ., 6
I have
the greatest respect, but the criminal law is a complete entity. One cannot
divorce the substance, the fundamental basis, from the sanction, from what
happens afterwards. The Canadian criminal law is totally unequipped to meet
a new approach to the basis of criminal liability. The traditional concept of
mens rea has its counterpart in the whole of the penological process. All fixed
sentences, whether it be death or the suspension of a driving license, presuppose
an objective gravity of the offence. All minimum sentences presuppose a
minimum wickedness of the offence. Absurd limitations on the power to
award probation exist not because the court feels that this particular offender
will not benefit from probation but because the legislature has deemed that all
such offenders are too bad to respond to probation. Our prison facilities are
perfect for the incarceration of “wicked men” but they will break down-
indeed, they have broken down-if “wicked men” only constitute a part of
the inmate population. We have virtually no therapeutic institutions or even
6(1962) 35 D.L.R. (2d) 386.
63[1961] O.W.N. 37.
64[1962] 35 D.L.R. (2d) 386.
-[1956] S.C.R. 640.
‘[1957] S.C.R. 531.
No. 2]
SHIFTING BASIS OF CRIMINAL LAW
therapeutic facilities for the mentally ill-a class which is forming a larger
and larger proportion of offenders. Most important of all we must have sen-
tencers who are aware that the process of the criminal law does not end with
the verdict.
There can be no sole purpose in the criminal law or in penology. Therapy
may be suitable for one offender, but incarceration for the protection of the
public may be the only way of handling another offender. An absolute dis-
charge with no penalty may be proper-or imprisonment for life. Perhaps
even death. But a new approach to the basis of criminal law must be accom-
panied by a new approach to the whole criminal law. I personally believe
that the judgments of the House of Lords and the dissenting judgments in th6
Canadian cases referred to above are wrong-wrong for Canada at present.
But I just as firmly believe that the doctrine of mens tea has served its useful
function and that it is inappropriate to a criminal law of a modern society
If an offence is one which requires “intent” or
with all its complexities.
“will”, then the statute should say so; if the statute, any statute including
the Criminal Code, is silent, then no purpose is served by adhering to a Latin
maxim which has never meant very much anyway.
Finally, it will become of increasingly more importance that we revise
our thinking on the content of the substantive criminal law. The doctrine of
mens tea is, of course, an ameliorating influence upon the harshness of any
Criminal Code. Were it to be replaced by a doctrine of risk, criminal liability
attaches more easily. In addition to the need to make criminal- sanctions
appropriate to the offender, there is the need to ensure that acts are never
criminal unless the consequences are, or may be, inimical to the state.
