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Animals and the Criminal Law (Canada)
(01 January 2015)
Chapter 2 - Mens Rea (Wilfulness)


  1. Overview
  2. The 'Wilfulness' Mens Rea Provision
  3. 'Wilfully' and the Actus Reus
  4. Subjective Foreseeability
    (a) Discussion
    (b) Case Law
    (c) Comment
  5. Recklessness
    (a) Overview
    (b) "Recklessness" in Other Criminal Contexts
    (c) What Meaning 'Recklessness' in the Context of "Wilfulness" in s.429(1)?
  6. Analysis
  7. Elements of an Animal Offence Mens Rea
  8. Comment

________________________________________


1. Overview

This chapter is about the general mens rea requirement that, by virtue of s.429(1) of the Criminal Code, generally applies to all Part XI offences ["Wilful and Forbidden Acts in Respect of Certain Property"], which of course includes the criminal animal offences under consideration in this Isthatlegal.ca Animal Law Guide.

The term used to label this s.429(1) mens rea is "wilfully":
429(1)
Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, wilfully to have caused the occurrence of the event.
Before we start to dissect it though, here's some important background. As noted in Ch.1 "Overview", criminal convictions require that the prosecutor prove both the "actus reus" element (the prohibited behaviour or omission to perform a duty) and a "mens rea" element of moral culpability, commonly 'intention'. The Supreme Court of Canada [R v Sault Ste Marie 40 CCC 2d 353] has held that mens rea is the hallmark of a true criminal offence, as distinct from lesser "public welfare" offences. While a full intention to cause the prohibited event or result is the most robust form of mens rea, several other forms exist.

A mens rea requirement will be inferred in any criminal offence, even if the provision does not require it on its face. However determining the specific mens rea element applicable to any given criminal offence has never been particularly easy [Stephen J in Tolson (1889) 23 QBD (UK) 168]:
The mental element in most crimes is marked by one of the words 'maliciously', 'fraudulently', 'negligently', or 'knowingly', but it is the general - I might, I think, say, the invariable - practice of the legislature to leave unexpressed some of the mental elements of crime.

...

The meanings of the words 'malice', 'negligence', and 'fraud' in relation to particular crimes has been ascertained by numerous cases. Malice means one thing in relation to murder, another in relation to the Malicious Mischief Act, and a third in relation to libel, and so of fraud and negligence.
This characterization, written over 100 years ago in England, is still an apt description of the law of mens rea today in Canada. Identical terms located in different parts of the criminal code may have different, and often still legally
unsettled, meanings.

Mewett and Manning, [Criminal Law (2nd ed, Butterworth's, 1985) p.106-7] also address this issue:
As we shall see, crimes are sometimes defined as requiring only one or the other of the states of mind above referred to, and they have been labelled by the courts as crimes of "general" intent. There are also crimes labelled "specific" intent which call for the proof of a more complex state of mind. These require not only an intent to cause the actus reus but also require the existence of a further intent going beyond the commission of the actus reus.

In addition to the division of the mens rea of intention into the requirements of "general" and "specific" intent, a crime may be so defined that something less than an intention to cause the actus reus of the crime will constitute a sufficient mens rea. This state of mind, as will be seen, is characterized as 'recklessness' or 'negligence' and is called for by the definition of certain crimes.
The mens rea provision ["wilfully"] considered in this chapter is such a "specific intent" element.


2. The 'Wilfulness' Mens Rea Provision

As noted above, the mens rea element of general application to Part XI Criminal Code offences (which include the animal cruelty provisions) is "wilfully", and it is expressly defined in the Code. While that sounds like (and should be) a helpful thing it is not, as the definition itself draws on traditional legal concepts which themselves are subject to the uncertainties discussed in s.1 above. Further, individual animal offences may [as explained in relation to each of the main animal offences set out in Ch.3] contain their own specific mens rea requirements which vary or modify this general 'wilfulness' standard. For example s.446(1)(a) requires "wilful neglect", and s.445.1(3) [which applies to several of the offences offers a substitute 'short-cut' mens rea].

Here, for purposes of analysis, is a dissection of this key 'wilfulness' definition [CCC s.429(1), quoted verbatim above]:
Every one who causes the occurrence of an event by doing an act or or by omitting to do an act [actus reus] that it is his duty to do,

. knowing that the act or omission will probably cause the occurrence of the event [subjective foreseeability, see below] and

. being reckless whether the event occurs or not [recklessness, see below],

shall be deemed, for the purposes of this Part, wilfully to have caused the occurrence of the event.
Note that "wilfulness" actually consists of two separate mens rea elements, both of which must be satisfied before "wilfulness" will be found to be present. I have labelled these "subjective foreseeability" and "recklessness".

Below I try to cobble together something like a consistent and workable meaning of the above definition from the disparate collection of case law that periodically touches on the issue.

Further - and as will be seen below in the separate discussion of 'recklessness' - I submit that it is more legally accurate to treat 'recklessness' (normally treated as an aspect of mens rea) as really a characteristic of the circumstances surrounding the actus reus. Put another way, 'recklessness' is present where the defendant acts in a manner and in circumstances which are more akin to the civil concept of 'gross' negligence.


3. 'Wilfully' and the Actus Reus

Note the division of the actus reus portion into two parts: the causing 'acts or omissions' on the one hand, and resultant "events" on the other. Keep in mind that it is the resulting events (eg. "unnecessary pain, suffering or injury") that the criminal law ultimately seeks to deter. Punishing the acts and omissions which cause them is just the legal means used to achieve this ultimate social goal.

Remember as well that 'omissions' can only satisfy the requisite actus reus if the defendant is under a duty to perform the omitted acts. Examples of such duties might include compliance with provincial regulatory standards, employment duties, generally-accepted professional or industry standards, contractual duties and such-like.

Also important is to note that the wording of the 'wilfulness' definition makes it plain that the mental element (ie. "wilfully") applies to the 'acts or omissions' which cause the prohibited event - NOT to the resultant events themselves. If 'wilfulness' applied to the cruelty itself the offence would be one of full malicious intent, which it is not. I discuss this further below.

Let's be clear. The requirement that the defendant 'wilfully' cause 'unnecessary pain, suffering or injury' to an animal (for example), does not require that they directly intended that result. It is sufficient that they 'wilfully' intended the acts or omissions which cause that result.

In this sense the 'wilfully' mens rea can quite accurately be generally categorized amongst the 'negligence' offences, lacking as it does a direct intention to bring about the prohibited criminal event. However that is not a complete description of it, as the immediately following discussion explains.


4. Subjective Foreseeability

(a) Discussion

As I set it out above, the "wilfulness" mens rea is comprised of two elements: subjective foreseeability and recklessness. Here I address the first of these.

The key phrasing here is: "knowing that the act or omission will probably cause the occurrence of the event". This can quite accurately be characterized as a "subjective foreseeability" standard. 'Subjective' means from the point of view (ie. mental processes) of the defendant.

'Foreseeability' is a concept more commonly used in civil tort law, where it is normally a required element in negligence lawsuits (eg. a motor vehicle accident case). The analysis goes like this: "where harm caused by an act is so remote in its likelihood that no one would have reasonably 'foreseen' it's occurence, then there is no negligence". Non-foreseeable harm then is essentially a true 'accident', to which no liability attaches.

In negligence law the concept of foreseeability is often distinguished into two forms: subjective and objective foreseeability.

'Objective foreseeability' (the normal civil negligence standard) is generally held to be satified if the trier of fact (judge or jury) finds that the defendant 'knew or SHOULD have known' of the possible consequences of their acts or omissions. This is often assessed using the quaint device of the 'reasonable person' - that is: would a 'reasonable person' perceive a risk from such behaviour? Objective foreseeability is considered a more lenient burden on a plaintiff (or prosecutor) as it allows them to appeal to the trier of fact's general social experience and knowledge drawn directly from their own personal experience, rather than to prove what is in the defendant's mind - a much more difficult evidentiary task.

On the other hand, 'subjective foreseeability' requires proof that the defendant has actually thought about the possible consequences of their acts before 'doing' them (and then still does them). To this extent it is a more onerous requirement on a plaintiff or prosecutor, who must now provide evidence at least suggesting some degree of active consideration of the risk by the defendant. This is sometimes also called "advertence", or 'advertent negligence' [ie. the defendant has 'adverted to' or 'thought about' the risk].

In the above definition of 'wilfulness', the phrasing "knowing that the act or omission will probably cause" makes animal cruelty an offence requiring "subjective foreseeability". This heightened standard of foreseeability is consistent with the general high standards required before the criminal law is satisfied.

(b) Case Law

This point was made by Kenkel J in R v Shand (OCJ, 2007), where the court considered the specific definition of "wilfully" applicable to the "inadequate care" animal offence, and stated:
"Wilfully" is defined in s. 429 of the Criminal Code as causing the occurrence of an event by doing or omitting to do an act pursuant to a legal duty, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not. The requirement that the accuseds' failure be "wilful" involves a subjective test. See: Kent Roach, Criminal Law 3ed. Irwin (2004) at p. 157. The reference to recklessness in s. 429 also indicates a subjective standard as recklessness requires subjective advertence to the prohibited risk (as described in that section) and can be distinguished from negligence, which requires only that a reasonable person in the accused's circumstances would have recognized the risk. Roach, Criminal Law 3ed. at p. 162.
A review of the meaning of the s.429(1) "wilfully" mens rea was attempted by Gorman J in the case of R v Clarke (Nfld Prov Ct, 2001) [and subsequently again in R v JS (Nfld Prov Ct, 2003)]. This case involved a weak prosecution for "inadequate care" where dogs were found without food and water on several occasions, though not in any extreme medical distress. On the issue of "wilfully" the court stated:
The Crown must prove that the accused acted wilfully and caused the actus reus knowing that suffering was a likely result or that a reasonable person would realize that this was a likely result. In other words, objective foreseeability of the consequences of his or her act is sufficient.
In my opinion this case, frequently cited, fundamentally mistakes the distinction between 'subjective' and 'objective'. The same was done by the same judge in R v JS (Nfld Prov Ct, 2003). This position contrasts directly with the Shand case (above), which I prefer.

(c) Comment

As a practical matter of evidence in a trial, proof of subjective foreseeability is rarely obtained by the defendant stating that they: "knew there was a risk, but thought 'screw it' and went ahead anyway". Rather it is obtained from other evidence such as the circumstances of the acts or omissions (eg. if another person put the risk to them beforehand, or an unmistakably-obvious big red sign that said 'danger').


5. Recklessness

(a) Overview

In everyday usage of the term, the requirement of 'recklessness' ("being reckless whether the event occurs or not") comes very close to the concept of 'subjective foreseeability' or 'advertent negligence' discussed above. It fits quite happily with the layperson's view that negligent behaviour committed in the face of known risk, is 'reckless'. Put another way, most people would agree as a matter of language usage that a reckless person is one who KNOWS what they are doing is risky but does it anyway.

(b) "Recklessness" in Other Criminal Contexts

In fact, in other criminal contexts where 'reckless' is used as a single mental element - ie. NOT paired with 'subjective foreseeability' as dual-required elements of mens rea - 'recklessness' has been given precisely that meaning. Thus in R v Tutton (SCC, 1989), a manslaughter case considering the meaning of the phrase "wanton or reckless disregard for the lives or safety of other persons" in the definition of criminal negligence, Dickson J (there were three separate though concurring judgments) stated:
It is my view that the phrase "reckless disregard for the lives or safety of other persons" found in s. 202, when read in the context of Canadian criminal law jurisprudence, requires the Crown to prove advertence or awareness of the risk that the prohibited consequences will come to pass. This Court has adopted a subjective approach to recklessness in Pappajohn v. The Queen, supra, and has reaffirmed this in the recent case of Sansregret v. The Queen, supra. In doing so the Court has, I believe, implicitly rejected the view that failure to give any thought to whether or not there is a risk can be substituted for the mental state of recklessness as [page1407] that view is articulated in the majority decisions in Commissioner of Police of the Metropolis v. Caldwell, [1982] A.C. 341 (H.L.), and R. v. Lawrence, [1982] A.C. 510 (H.L.)
Identical treatment of 'recklessness' in the context of rape is found in the (aptly-titled) case of R v Sansregret (SCC, 1985) [McIntyre J for the court], where it once again is equated with advertent negligence (despite vigorous efforts by the court to shed the term 'negligence' as such):
The concept of recklessness as a basis for criminal liability has been the subject of much discussion. Negligence, the failure to take reasonable care, is a creature of the civil law and is not generally a concept having a place in determining criminal liability. Nevertheless, it is frequently confused with recklessness in the criminal sense and care should be taken to separate the two concepts. Negligence is tested by the objective standard of the reasonable man. A departure from his accustomed sober behaviour by an act or omission which reveals less than reasonable care will [page582] involve liability at civil law but forms no basis for the imposition of criminal penalties. In accordance with well-established principles for the determination of criminal liability, recklessness, to form a part of the criminal mens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance. It is in this sense that the term 'recklessness' is used in the criminal law and it is clearly distinct from the concept of civil negligence.
(c) What Meaning 'Recklessness' in the Context of "Wilfulness" in s.429(1)?

Our problem is that the above interpretations of 'recklessness' (which are otherwise quite reasonable), if applied to the s.429(1) definition of 'wilfulness', would render the term redundant in light of the parallel (and then identical) advertent negligence or 'subjective foreseeability' requirement.

Unfortunately (for the present venture) it is a standard (and otherwise quite reasonable) principle of statutory interpretation that no portions of a statute will be interpreted as being redundant or lacking meaning.

I have yet to find any plain addressing and resolution of this problem by a court. There is a discussion of the theme in a dissent in R v Buttar (BCCA, 1986; affirmed by SCC) that quotes the same passage that I do above from Sansregret, and then seems to struggle with potential redundancies in the terms (along with additional mens rea terms embedded in the arson offences). However it is inconclusive and the majority does not countenance the issue at all.

It seems necessary then to search for and locate some new meaning for the term "recklessness" which is distinct from subjective foreseeability. But is this an artificial and contrived exercise driven ultimately by inconsistent legislative terminology?

We are not the only ones to tred such a path. Dickson J in R v Tutton (discussed above re 'reckless') faced a similar task in the need to give the term "wanton" (as in "wanton or reckless") some meaning distinct from 'reckless' (there also taken as 'subjective foreseeability'). He kicks it about a bit and then decides that it must mean "wilful blindness" - another perennial mens rea specific intent favourite. His struggle, like ours, is an excellent example of the larger 'mens rea' problem alluded to in s.1: that of giving meaning to historically-ambiguous and ill-defined (though crucial) legal terms. Dickson J states:
The expression "wanton" disregard for the lives and safety of others is perhaps less clear. The word "wanton" taken in its acontextual sense could signal an element of randomness or arbitrariness more akin to an objective standard but, given the context in which it appears, coupled with the adjective reckless, and its clear use to accentuate and make more heinous the already serious matter of disregard for the lives or [page1408] safety of others, I would think that the preferable interpretation is that the word wanton was intended to connote wilful blindness to the prohibited risk: see P. J. T. O'Hearn "Criminal Negligence: An Analysis in Depth" (1964-65), 7 Crim. L.Q. 27, at p. 411.

.....

In short, the phrase "wanton or reckless disregard for the lives or safety of other persons" signifies more than gross negligence in the objective sense. It requires some degree of awareness or advertence to the threat to the lives or safety of others or alternatively a wilful blindness to that threat which is culpable in light of the gravity of the risk that is prohibited.
As a candidate for a new meaning for 'reckless' in our s.429(1) situation, 'wilful blindness' as explained above may be our best bet. It plainly connotes an active mental suppression of risk-consideration consistent with the lay use of 'recklessness'.

Mewett and Manning, in giving meaning to the term 'reckless', sometimes seem to focus on culpability in relation to post-act/omission consequences, or more specifically the defendant's behaviour (or more properly, omissions) respecting the events AFTER he has put them into motion. Such a focus gives meaning to the only additional text that we have to work with in informing the term 'reckless' in the s.429(1) context, being: "being reckless WHETHER THE EVENT OCCURS OR NOT". Thus we find 'recklessness' equated with a failure to engage in acts mitigating the ultimate criminal event once things are set in motion [M&M, p.673], or a 'disregard' of the consequences [p.123].


6. Analysis

Both the above 'disregard' meaning and the 'wilful blindness' interpretations are similar, as is the common civil term "gross negligence". Frankly the terms are so ill-defined in law and frequently intermixed that any effort to delineate precise meanings may be doomed to failure. We need a robust definition of "wilfully" that captures an appropriate degree of moral blame, and yet which does not require metaphysical gymnastics.

I submit that courts have perpetually glossed over the dual nature of the Part XI [s.429(1)] "wilfully" mens rea element. If anything, when they do address it they effectively apply a standard that requires something akin to 'subjective foreseeability' of a particularly morally culpable degee.

This fits nicely with the conclusions I reach in s.5 above, and leaves us with what I will refer to from now on as "advertent gross negligence".

Here the term "advertent" equates with the term "subjective" as I have been using it to this point. As a mental state, the addition of "gross" can only connote a specific additional subjective state of 'not caring' (also 'actively suppressing' or "wilful blindness") as to the causal consequences of ones acts or omissions, which is is quite consistent with the lay use of the term: 'reckless'.

In robust terms, "advertent gross negligence" means not only thinking about the risk beforehand, but also ACTIVELY DECIDING TO DISREGARD IT. In practical evidentiary terms this may be proven - as so much mens rea is - from the circumstances of the actus reus.

As such it brings into play a rarer type of mental state than those more traditional forms that we have discussed so far (ie. intention, subjective foreseeability, wilful blindness ALONE). Another way of looking at it may be as not only a disregard for the physical consequences of one's acts or omissions, but also a MORAL disregard for the resultant events. It embodies the defendant's choice, at the time that they act, to at least temporarily divorce themselves from self-control and moral responsibility.

If that is accurate, then the s.429(1) mens rea of 'wilfulness' encompasses the following:
  • subjective foreseeability (also knowledge or 'advertence') as to the probable occurence of the criminal events;

    AND

  • wilful blindness or conscious disregard as to moral responsibility for the occurence of the criminal events.
Alternatively, and more colloquially:
Despite the (known probable) risk, I'm going to do (or neglect to do) it anyway - consequences be damned.
That said, it is another charming unstated feature of criminal law that a 'full mens rea' of intention to cause the prohibited event or ultimate harm will substitute for the above. The theory, while of dubious intellectual accuracy, is that all of the elements of 'wilfulness' [in its s.429(1) meaning] are contained within this 'full' mens rea. Thus a fact situation involving intentional cruelty is not likely to invoke the mens rea gymnastics set out above.

I suggest that a detailed survey (which I will not here undertake) of the case treatment of Part XI "wilfully" will reveal that most convictions are made under this standard in any event.


7. Elements of an Animal Offence Mens Rea

If the above analysis is sound, then the 'wilfulness' mens rea elements required for any offence to which s.429(1) applies are:
i. Instrumental Intention

The defendant intends to 'do' the acts or omissions (of duty) which cause the criminal event.

ii. Risk

The acts or omissions will probably cause the criminal event.

iii. Knowledge of Risk

The defendant knows (or has 'subjectively foreseen', or has 'adverted' to the fact) that their acts or omissions would probably cause the criminal event.

iv. Recklessness (Disregard)

In the face of their knowledge of the risk, the defendant actively disregards any moral responsibility to mitigate the occurence of the criminal events.
Note that there is no requirement that the defendant also intend the occurence of the ultimate criminal event itself, although that intention will substitute for all the above "wilfulness" mens rea requirements.

Thus, in sum, it appears that the phrase "advertent gross negligence" is an apt characterization of the s.429(1) 'wilfulness' mens rea requirement, the mens rea requirement that governs the criminal animal offences.


8. Comment

So. What evidentiary implications does this analysis have for robust prosecution of the animal offences?

I conclude that the "wilfully" mens rea standard, as a specific intent standard, is actually MUCH harder to prove that the conventional "full" mens rea of intent to cause the ultimate harm (aka 'malicious intent'). [This may explain any common recourse to conventional "full" mens rea as a 'substitute' mens rea.]

Recall that in most criminal offences mens rea is proven by inference from the actus reus behaviour. This step is facilitated by the famous maxim that 'a person is deemed to have intended results which are the natural result of their behaviour' [the 'natural consequences inference']. This doctrine applies to what I have above referred to as the 'instrumental intention'.

However, the 'natural consequences inference' cannot aid us in proving the "knowledge of risk" and moral "recklessness" (disregard) mens rea elements discussed above. These mental elements do not relate to simple 'instrumental' causation, rather they are MORAL ones. They relate not to causal mechanics but to moral norms.

Thus, in a straight-up "wilfully" mens rea Part XI prosecution, positive evidence of these mental states of the defendant must be adduced. Examples of such evidence are such things as the big red "danger sign" that couldn't be overlooked, or evidence of an overheard statement (eg. 'ah, screw it'). Similarly, evidence of neglect of procedures by a person under a duty of compliance (eg. plainly faulty equipment missed by a failure to inspect) would also be good evidence in an 'omission'-grounded case.

It is perhaps for this reason that we see 'short-cut' mens rea provisions such as s.445.1(3), where proof of negligence and causation of harm create a rebuttable presumption of "wilfulness".

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