Mens rea

Mens rea (guilty mind) offences require the prosecutor to prove not only that you committed the illegal act but that you also had a particular state of mind, one that intentionally wanted to commit a criminal act. These types of charges are usually worded under "knowingly", "wilfully", or "intentionally".

Your state of mind depends upon the offence you committed. The prosecution has to prove you had intent, knowledge or recklessness. Intent means you wanted to commit a specific act or bring about a certain result. Knowledge means you knew what the effect of your actions would be. And recklessness means you knew that a certain behaviour was risky and you acted with a disregard of that risk.

An endangerment or recklessness charge might fall into this category if it can be shown that there was intent to cause harm, not just negligence. The prosecutor can use statements by you as proof of your state of mind or argue that common sense says that people normally intend the natural consequences of their actions. Proving that you did not have criminal intent on your mind will be sufficient to exonerate you. Read that last line again. If you can prove that it was never your intent to commit an illegal act, even if you ended up doing one, you must be found innocent of a mens rea offence.

In order to defend yourself you must show that you honestly believed in certain facts which, had they been true, would have made your actions legal. You did not intend to commit the offence. This mistake of fact must be honest but not necessarily reasonable.

The justice may have a hard time believing that you did not have common sense enough to know right from wrong. On this point, you don't have to have a reasonable belief that your actions would be wrong but you cannot go too far. If it is too outrageous you could be considered "wilfully blind", that is you shut your mind to the truth and then the justice can find you guilty.^[1]

Another defence might be drunkenness. You were so drunk that you did not know what you were doing at the time. You will require expert evidence to state that your drunkenness was akin to insanity or automatism. This is different from having a hangover and not remembering what you did which is not a reasonable defence.

The most famous example of the extreme drunkenness defence is R. v. Daviault There the Supreme Court of Canada ruled that extreme intoxication could be used as a defence against assault, sexual assault and murder. The case before the court found a man innocent of raping a 65 year old partially paralysed woman who was confined to a wheelchair because he was too drunk to know any better. Yes you read that correctly and yes it did happen and yes the case is still relevant today.^[2]

1. See Sansregret v. The Queen, [1985] 1 S.C.R. 570

2. See:

• "Supreme Court restores man's murder acquittal", Janice Tibbetts, Canwest News Service, June 07, 2008; and "SCOC upholds acquittal for Sask. man who shot wife", Canadian Press, June 6, 2008;
• "Crown may appeal acquittal of man who killed Laval, Que., cop", Nelson Wyatt, The Cape Breton Post, June 13, 2008;
• "Supreme Court acquittal of B.C. driver sets key precedent: lawyer" CBC News, February 22, 2008;
• "Ontario court upholds 'sexsomnia' acquittal", Shannon Kari, National Post, February 7, 2008;
• 'Shania Twain' defence works in drunk driver's favour, CBC News, March 28, 2006;
• Judge allows use of 'drunk defence', CBC News, November 10, 2000.