A Subjunctive Standard for Mens Rea
Researcher: Setareh Bateni
- Date Complete: 2009/12
- Degree Awarded: M.A.
- Research Supervisor: A.D. Irvine
Abstract
A fundamental distinction in criminal law is the distinction between actus
reus and mens rea, the criminal act and the criminal intent. Two distinct
standards have arisen for deciding mens rea: an objective standard and a
subjective standard. The purpose of this thesis is to develop a three-step
rule that will make it easier to decide whether to apply the objective or
subjective standard in cases involving intoxication. Since this rule
introduces a subjunctive approach to interpreting mens rea, I call this
standard the subjunctive standard of mens rea.
The subjunctive standard of mens rea is based primarily on a decision
about whether an accused would have had the mens rea required to commit a
prohibited act in the absence of alcohol. Thus, the subjunctive standard of mens rea should be used only when the accused is believed to have committed
a prohibited act while intoxicated. The test for deciding whether an accused
would have had the mens rea required to commit a criminal act is based
largely but not exclusively on the accused's credibility at trial.
This thesis in effect gives judges and lawyers a new tool. It introduces
a new rule that can be used to decide which standard of mens rea best suits
a given case. This three-step rule is a rule free from ambiguity and
restraint and yet it is fully consistent with Charter values, something that
is important for prosecutors and defendants alike.
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