Recklessness
Recklessness is a form of mens rea — the mental element of a criminal offence. A person is reckless where they are aware of a risk that the prohibited consequence may follow from their conduct, and they nonetheless proceed without justification. Recklessness can satisfy the mens rea requirement for many Canadian criminal offences. It sits between intent (the highest mens rea) and negligence (lower, not always sufficient for criminal liability).
The two elements
Recklessness requires both a subjective and an objective element. Subjectively, the accused must actually have foreseen the risk that the prohibited consequence might occur — a person who genuinely did not perceive the risk is not reckless. Objectively, the risk-taking must be unjustifiable — taking the risk must be unreasonable in the circumstances. The Supreme Court has affirmed the subjective foundation in cases including R v Sansregret, 1985 and R v Briscoe, 2010.
Recklessness vs. wilful blindness
Wilful blindness is closely related but distinct. Recklessness involves seeing a risk and proceeding anyway. Wilful blindness involves a suspicion of a fact, deliberately refraining from confirming or refuting it, and proceeding with the conduct. Wilful blindness is treated as the equivalent of actual knowledge — it satisfies the higher mens rea standards where actual knowledge is required. Recklessness does not always reach the same level.
Where recklessness is sufficient
Many offences allow recklessness as a mens rea pathway. Examples include: assault (the accused need not intend to apply force; recklessness about whether force will be applied without consent suffices); mischief (recklessness about damage to property); criminal harassment (recklessness about whether the conduct causes the complainant to feel harassed); and many regulatory offences. Where recklessness is sufficient, the Crown's case is easier to make out than where specific intent is required.
Where recklessness is not sufficient
For some offences, recklessness is explicitly insufficient — the Crown must prove higher mens rea. Examples include: first-degree murder (requires planning and deliberation, not just recklessness about death); sexual assault, where recklessness or wilful blindness cannot ground a mistaken-belief-in-consent defence under section 273.2; and certain fraud-related offences where specific intent to defraud is required. The exact mens rea pathway depends on the offence.
Defending the mens rea element
Where the mens rea element is contested, the defence focuses on the accused's actual state of mind. Did the accused foresee the risk? Was the conduct undertaken with an honest, reasonable belief that no risk existed? Mass Tsang's criminal lawyers approach mens rea questions as one of the central battlegrounds in any contested file.
Related glossary terms
