La+constitutionnalisation+de+la+mens+rea+et+l'emergence+d'une+nouvelle+theorie+de+la+responsabilite+penale

·Me //ns rea//, as constitutionalized by the courts in Canada, now means that a finding of guilt requires a minimum standard of personal fault. This is different from //mens rea// as examination of the accused’s state of mind in relation to the material elements of the offence. Guilt is based on harm caused rather than morality of the accused.


 * __//1 Me//__****__//ns rea// in the era of the //Charter//__**
 * In Wholesale Travel Group [1991], the SCC stated that negligence was sufficient as the basis for culpability in regulatory infractions, although not in criminal infractions.
 * This decision was founded on a contextual analysis of the Charter, section 7, to which negligence is the minimum degree of fault that could conform.
 * The SCC later confirmed that negligence also presented sufficient faul in criminal matters as well (criminal negligence).
 * De Souza [1992] necessitated the differentation between infractions arising from a) an occurence of a prohibited act and b) others that result from carrying out a dangerous and illegal act.
 * a) Include crimes such as fraud, whose essence is the voluntary risk of another's goods. Here, culpability would depend on the intention of the accused to mislead the victim.
 * b) Here, it is not necessary to establish fault in addition to the consequence of carrying out the illegal act itself. Only homicide, due to the severe punishment with which it is associated, requires a subjective element of fault.
 * //Creighton// confirms the sufficience of a degree of personal fault in order to establish culpability.


 * __2. Changes in approach to //mens rea//__**
 * //Mens rea// has evolved to incorporate responsibility without personal fault, under the protection of the Constitution.
 * The tradition approach to //mens rea// is linked to philosophical conceptions of morality. It involves the notion of personal blame and wrongful intention.
 * The approach to //mens rea// was distanced from concepts of morality when it was legalized during the apparition of legal positivism in the 19th century.
 * In this way, //mens reas// became unique to each crime, and served the technical purpose of describing the state of the accused.
 * Canadian law has adopted this more descriptive approach.
 * a) The Constitutionalization of //mens rea,// in a normative sense**
 * The SCC has elevated //mens rea// to the status of a fundamental principle of justice; it holds constitutional status in Canada.
 * //Renvoi:// Lamer J. associates the principle with the justification of culpability in an accused who demonstrates no personal fault. Either subjective or objective fault may establish culpability.
 * It is also contrary to principles of fundamental justice to inculpate someone who could not in a reasonable state of mind or able to exercise free will at the time of the infraction.
 * The SCC also conferred constitutional status on the conscience and voluntary aspect of a culpable act.
 * b) The decline of subjectivist orthodoxy**
 * The Charter guarantees a minimum standard. Fundamental principles of justice exist to prevent the condemnation of persons in the absense of personal fault - **it does not, however, demand subjective //mens rea//**.
 * //Hundal//: carrying out an action in a way that creates risk constitutes faulty behaviour, and represents a moral culpability that may lead to criminal sanction.
 * This decline represents a new sensitivity to the harm suffered by the victim and its role as a basis for culpability. Thus, the both personal fault of the offendor and the gravity of the harm suffered are considered.
 * The rights discourse associated with the Charter has in this way intensified the focus on both on the rights of the victim and of the accused.
 * //Martineau:// presents two opposing visions of culpability and the role of the court.
 * Lamer J. (majority) states that subjective fault is necessary in determining guilt, while L'Heureux-Dube J. (minority) expresses the importance of balancing interests as in the more modern conception of //mens rea//. Boisvert notes that this decision, although it deals with homicide, represents the "swan-song" of the moralistic perspective on culpability in Canada.
 * __3. The future of //mens rea//__**
 * a) Criteria to be applied in order to determine the //mens rea// of a particular infraction**
 * //Hundal//: SCC noted that __in an appropriate context,__ negligence represents an acceptable measure of culpability in criminal law.
 * This context involves the gravity of the punishment and the importance of the stigna associated with a guilty verdict.
 * A fault-based norm may serve in cases of regulatory and criminal infraction. The traditional distinction between these categories is artificial and **difficult to apply.**
 * b) Criminal negligence as an element of //mens rea//.**
 * The level of danger created by the behaviour of the accused serves to establish fault.
 * Lamer J. stated that the negligence must be considered in an //__in concreto__// context, taking into account the personal characteristics of the actor. However, most judges have upheld the concept of egality of all before the law, thereby diminishing the importance of individual circumstances of the accused.
 * This position has been heavily critiqued doctrinally. Criticism includes a focus on the narrowed distinction between //actus reus// and //mens rea// and subsequent reduction of the role of //mens rea// to a "fiction".
 * c) The new //mens rea//, moral blamelessness and the causal link**
 * The SCC has established that a person may be held responsible in the absence of fault in specific relation to the consequences of his or her behaviour if they volontarily took part in dangerous behaviour.
 * Theory concerning the causal link between the actor's behaviour and the result is poorly developed. It is likewise minimally developed (but broadly applied to infractions) in the Criminal Code.
 * Note that the state of the victim does not affect the causal link (extension of sorts of thin skull rule).
 * This intensifies the attention focused on the harm caused to the victim; serious judicial examination of the causal link is necessary before determining guilt on the part of the defendent.


 * d) Moral fault and the imposition of punishment,**
 * The modern evolution of the concept of //mens rea// does not constitute a complete regression. It instead represents a shift in the moment at which the moral discrepency of the accused is assessed. The moment of assigning punishment has, in this regard, become more important than that of determining guilt.
 * The judge must take into account the degree of moral fault in assigning an appropriate sanction. Article 718.1 of the //Criminal Code// stipulates that punishment must be proportional to the gravity of the infraction and degree of responsibility on the part of the accused. Recently, judges have tended towards prescribing minimal prison sentences for more dangerous crimes.
 * Legislation has recently tended towards creating a greater number of predetermined sentences that allow for less consideration of moral fault.