Creating criminal offences
This is a single section from Chapter 24. Read the full chapter here.
When should the person be held responsible?
Legislation should state the mental element (mens rea) required for an offence to be committed.
It important to consider why, and in what circumstances, a person who has committed the physical act should be considered culpable and deserving of punishment for having committed that act. As a general rule, a person should be liable for a criminal offence only if he or she is at fault for the prohibited conduct. This concept of moral responsibility for the conduct is reflected in the mental element of the offence (the mens rea). That mental element can be framed in many different ways (for example, the defendant “intentionally”, “recklessly”, or “knowingly” performed the prohibited conduct). Each of these formulations has subtle differences as explained in judicial decisions.
A criminal offence should include a mental element unless there are compelling policy reasons to relieve the prosecution from the burden of proving a mental element and require the defendant to prove some essential element to avoid liability. In such a case, an offence may be framed as a strict liability offence, meaning the prosecution must prove only the physical element of the offence.
Policy reasons for strict liability offences may exist in the regulatory context if:
- the offence involves the protection of the public, or a group such as employees, from those who voluntarily undertake risk-creating activities;
- there is a need to provide an incentive for people who undertake those activities to adopt appropriate precautions to prevent breaches; or
- the defendant is best placed to establish absence of fault because of matters primarily within their knowledge.
In those cases, officials should be able to provide reasons why strict liability offences are justified in the particular regulatory context. They should also consider what defences would be appropriate.
If legislation is silent as to the mental element or the defences available, the courts will generally infer a mental element, but that can create uncertainty. This is undesirable because a person is entitled to know before engaging in conduct whether it is prohibited and, if so, in what circumstances.