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What Are the Mental State Requirements in Canadian Criminal Law

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Did you know you must be in the right mental state for a court to convict you of a crime in Canada?

If you’re a frequent reader of our blog, you’ll know that the answer is “yes,” as the Greater Toronto Area criminal defence lawyers of Mass Tsang LLP have addressed mental state as a criminal defence in a few of our articles. In one of our blog posts, we covered the intoxication defence ; in another, the insanity defence . However, mental state requirements in Canadian law extend beyond intoxication and mental disorders.

Let’s take a closer look at mental state requirements in Canadian law, but please note

that this blog should not be construed as “legal advice” and should be used only for educational purposes. If you’re facing criminal charges, don’t try to fight the charges on your own; secure the services of a skilled criminal defence team like Mass Tsang.

In Many Criminal Cases, the Defendant Must Have a “Guilty Mind”

To secure a conviction in most criminal cases, Canadian law requires Crown prosecutors to prove that the defendant committed the crime, in what is known as “actus reus” in Latin. Prosecutors must also prove that the defendant intentionally or knowingly committed the offence — “mens rea” in Latin for “guilty mind.” Absent either of these factors, the law requires the nullification of the charges.

Mens rea is a mental state. If you committed theft or murdered someone, the Crown must prove that your mental state was such that you intended to commit the offence. If you were arrested for possession of stolen property, the Crown must prove that you had relevant knowledge about the possession.

Mens Rea Not Applicable in Strict Liability Offences

Some crimes in the Canadian Criminal Code and other Acts are codified as strict liability offences. Strict liability offences do not require the Crown to prove mens rea to secure a conviction, absolving the need to prove intent or knowledge. Strict liability offences apply to activities so inherently risky or dangerous that anyone engaging in them should be held accountable despite any lack of intention or knowledge.

A prime example of a strict liability crime is driving while impaired . It does not matter if you did not realize you were impaired or if some other mental state put you behind the wheel, because the Crown must only prove that you did it.

While strict liability significantly limits defence options, defendants may be able to raise one of three defence options depending on case specifics. They are:

  • Due diligence — proving that the defendant made a concerted effort to prevent the offence from happening.
  • Mistake of fact — convincing the court that the defendant honestly believed in a specific set of facts that, if true, would have made their criminal activity legal.
  • Necessity — that the defendant committed the criminal act to avoid greater harm to themselves or others.

Lack of Mens Rea as a Criminal Defence

As you may have surmised by now, proving the lack of the mens rea guilty mind is a common defence strategy in non-strict-liability offence criminal cases. Known as an affirmative mistake of fact defence, demonstrating a lack of intent or knowledge is one of the most common defence strategies used in theft and fraud cases. For example, arguing that property was taken because the defendant mistakenly believed that they had legal ownership or permission to use it. Or claiming that while property may have been taken, the act wasn’t committed with unlawful purposes (i.e., accidentally leaving a store with an unpaid item).

The lack of mens rea is also raised in many assault and some sexual assault cases. With assault, a defendant might argue that the physical action was made without intent due to an accident or reflexive movement. In a sexual assault case, a defendant might argue that their activity was spurred by their belief that the other party consented to it. However, Canadian court precedents have established high thresholds to establish what constitutes legitimate consent in such cases.

Automatism as a Mental State and Criminal Defence

Automatism means a “state of impaired consciousness,” and the automatism defence is used to nullify the mens rea by proving that a defendant’s criminal actions were taken unconsciously or involuntarily. While both the insanity and intoxication defences seem to fall under the purview of the automatism defence, the Criminal Code and court precedents effectively differentiate them.

Automatism attributed to insanity is covered by Sections 16, Defence of Mental Disorder , 2 Interpretation , and Part XX.1 — Mental Disorder — provisions of the Code. When raised, the court first determines whether the defendant is fit to stand trial. If not, the defendant is placed under the control of a provincial review board. Otherwise, the trial continues with the defence responsible for proving the alleged insanity. If successful, the defendant is found not criminally responsible and placed under the control of the provincial review board. If the defence fails, the defendant is found guilty as charged.

The provincial review board is responsible for ensuring that the defendant receives mental health care, whether on release to the public with any restrictions needed to protect the public or with hospitalization in a mental institution.

The use of automatism caused by intoxication as a defence is severely limited by Section 33.1 , though a 2022 Supreme Court of Canada decision held that extreme intoxication can be used as a valid defence. That said, the extreme intoxication case has rarely been used in Canadian criminal cases, and legal scholars do not expect the high court’s decision to change this.

Absent insanity, judicially recognized forms of automatism include:

  • Blow to the head
  • Physiological conditions like poisoning, stroke, or hypoglycemia.
  • Some sleep disorders.
  • Post-traumatic stress disorder.

Trust the Experts at Mass Tsang for Your Criminal Defence

We trust that our article has shed some light on the importance of one’s mental state in the context of Canadian criminal law. With extensive experience successfully raising criminal defence strategies for our Greater Toronto Area clients, if you’ve been arrested on criminal charges, contact us for a free consultation.



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