Mens Rea — The Subjective/Objective Spectrum
From subjective intent through criminal negligence to absolute liability.
Canadian criminal law uses a spectrum of fault standards from subjective intent (murder) through objective foresight (manslaughter, dangerous driving) and criminal negligence (criminal negligence causing death) down to strict liability (regulatory offences). Reference re BC Motor Vehicle Act establishes that imprisonment requires at least due-diligence fault.
The spectrum tracks what each offence treats as the moral premise of liability. Subjective offences require what the accused actually had in mind. Objective offences require what a reasonable person in the accused's position would have foreseen. Strict liability admits a due-diligence defence. Absolute liability admits no defence and is unconstitutional with imprisonment.
Key principles
- Subjective intentWhat the accused actually had in mind. Required for murder, theft.
- Objective foresightWhat a reasonable person in the accused's circumstances would have foreseen. Required for manslaughter, dangerous driving.
- Criminal negligenceMarked and substantial departure from the standard of care of a reasonable person.
- Strict liabilityAdmits due-diligence defence. Default for regulatory offences (Sault Ste Marie).
- Absolute liabilityUnconstitutional where imprisonment is possible (BC Motor Vehicle Reference).