Intention

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• < Droit pénal
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General Principles

An unlawful act cannot attract criminal liability without a sufficient level of awareness of the wrongfulness of the act. In legal terms, the accused must have sufficient mens rea to be guilty of a crime. This manifests itself by either an intent on the part of the accused to choose to act in the unlawfulness or a knowledge of the circumstances under which they act to be held responsible for the offence.

However, it must be kept in mind that the latin maxim cogitationis poenam nemo patitur ("no one suffers punishment for mere intent") sets the principle that we do not seek to punish people for their thoughts. So the awareness by itself cannot sustain a conviction without action.

Level of Intent Not Defined

It is not uncommon that Parliament does not define the necessary mens rea for an offence. However, in all cases Parliament "d[oes] not intend to punish the unblameworthy." Where the text is silent the presumption is that courts must "read in the words most appropriate to require mens rea". For subjective intent, this will generally mean "knowledge, recklessness, or wilful blindness."

Intention and Motive

"Intent" refers to the mental state of the individual consisting of the desire or purpose to achieve a particular consequence, or where the consequences the person sees as certain, "substantially", or "practically" certain.

There is a presumption that Parliament drafts an offence expecting to require a subjective fault element.

"Purpose"

The use of a phrase such as "for the purpose of" found in the Code will sometimes refer to the "desire" or "ultimate objective or goal" of the prohibited act.

"Purpose"/"Intent" vs "Motive"

The "purpose" of an action is not necessarily the same as "motive". The "purpose" means the "object to be obtained, thing intended". The "motive" is "what induces a person to act."

Intent and motive are conceptually distinct. In its efforts to secure peace and order, society has little interest in the accused's motive behind the intended act.

Motive in Murder Charges

Motive is not an essential element but may be relevant and material. For example, it may be used to establish identity or state of mind of the culprit. Motive is a form of prospectant evidence. The logic goes that because a person had motive to do X, the person is more likely to have done X. Motive may be proven by words or actions. Those actions may often amount to similar fact evidence.

Motive of Witnesses

The motive of a witness may be used as a subject of cross-examination to show bias, interest or corruption. A denial of motive opens the witness up to impeachment by other evidence as an exception to the collateral fact rule.

Absence of Motive

There is a difference in law between an absence of evidence establishing motive and a proven absence of motive.

Sufficiency of Evidence of Motive

To establish an animus between the accused and victim, it is not sufficient to simply identify some past conflict and then argue for an inference of animus. Such evidence simply brings bad character evidence with little value. This would include vague evidence of "financial distress."

The court should have got "into a habit of admitting evidence which, reasonably viewed, cannot tend to prove motive or explain the acts charged merely because it discloses some incident in the history of the relations of the parties."

By contrast, evidence that provides "real insight" into the "background and relationship" between the accused and victim, is highly probative and can be used to establish motive.

Specific and General Intent

A crime is only committed where the prohibited act or omission is committed while the accused is in possession of requisite intent.

Criminal law recognizes a distinction between offences that require specific and general intent as an essential element of proof. The difference concerns whether the intent applies "to the acts considered in relation to their purposes" (specific intent) or applies "to acts considered apart from their purpose" (general intent). General intent requires only intent as it "relates solely to the performance of the act in question", while specific intent involves "the performance of the actus reus, coupled with an intent or purpose going beyond the mere performance of the questioned act."

General Intent

When considering general intent offences, the consideration is on the "intention as applied to acts considered apart from their purposes". It considers only the intent to the "commission of an act." Phrased differently, it is the intention that is "applied to acts done to achieve an immediate end." At this level, "intention" is distinguished from acts that are accidental or by honest mistake.

General intent actions include those that are purely physical acts produced by "momentary passion."

One consequence of the separation of general from specific intent is that self-induced intoxication short of automatism is not an available defence for general intent offences.

General intent, at it's lowest, only requires "a conscious doing of the prohibited act."

Specific Intent

Specific intent is sometimes referred to as "ulterior intent." "Ulterior intent" is described as the "state of mind contemplating consequences beyond those defined in the actus reus."

Specific intent actions are said to be a "product of preconception" and are "deliberate steps ... towards an illegal goal."

Proof of specific intent requires a "state of mind contemplating consequences beyond those defined in the actus reus." There is said to be a "focus on an objective further to the immediate one at hand."

Distinguishing Between General and Specific

The question of intent for a particular offence is a matter of statutory interpretation. It should not be overly influenced by the facts of the particular case.

A helpful guide is to look at previous jurisprudence.

In can be difficult to identify when an offence requires specific or general intent. Considerations can include the connection actus reus and mens rea; social policy; and severity of penalty.

There are two broad factors to consider:

1. the "nature of the mental element and its relative importance" and
2. the "social policy sought to be attained by criminalizing the particular conduct"

Where specific intent could "unreasonably hamper" the enforcement of the process, public interest would lead to a general intent standard.

Some judges have been critical, observing that there is some acceptance that the distinction may not always be "logically defensible" and may produce "illogical results."

Importance of the Mental Element

The "importance" of the mental element refers to the "sophistication" or "complexity" of the "thought and reasoning processes" that constitute the offence.

General intent offences do not require an intent to bring about "certain consequences that are external to the actus reus." They require "very little mental acuity." They do not require "actual knowledge" of the circumstances or consequences to the extent that the knowledge is a product of "complex" thought and reasoning. This standard is to be read as equivalent to being "minimal intent" and require "minimal degree of consciousness."

Specific intent offences have a "heightened mental element." This heightened mental element will manifest as an additional requirement such as:

• an intention to commit the prohibited act while having an "ulterior purpose in mind."
• an intention to produce a result.
• knowledge of the circumstances or consequence of the act.

Social Policy

Social policy should only be considered where examination of the nature of the mental element does not yield an answer. The consideration would include analysis of whether defences that negate a heightened mental element would potentially endorse or promote harmful activities. Also, there should be consideration of how often such defences may arise, whether "habitual", "prevalent" or "rare". e.g. Tatton (ONCA), supra, aux paras 42 to 44 </ref>

The judge may also consider the available sentencing options, including whether there is a mandatory minimum penalty or wide discretion for lesser sentencing options.

Presumption of General Intent

Absent words to the contrary in the Code, the presumption is that the offence is one of general intent, whereby the accused must have intended the act or omission.

Most crimes where no mental element is mentioned in the definition of the offence will require proof of intent to or recklessness in bringing out the resulting offence.

When Specific Intent Applies

Offences with the wording of "wilfully" suggests that the mens rea is extended to a "specific intent".

It has been pointed out that the distinction between general and specific intent is "not particularly helpful in describing the actual mental elements required for a crime”. The can however convey "the complexity of thought and reasoning" and the "social policy underlying the offence.”

Language Suggesting Specific Intent

The presence of the word "wilfully" in an provision for an Criminal Code offence "generally signals a subjective mens rea requirement, but the appropriate meaning of the term 'wilfully' will depend on the context in which it is found." In context of a probation order, "wilful" denotes "a legislative concern for a relatively high level of mens rea" that requires a intent to breach and have a purpose in doing so.

Traditionally, words and phrases such as "with intent to", "for a fraudulent purpose", "corruptly", "wilfully" and "knowingly" are signs of a legislative intent to impose a specific intent standard.

Considerations to Identify Type

Inferences

Intent is often proven by way of inference, including by use of circumstantial evidence, character evidence (e.g. motive or animosity), post-offence conduct, statements made by the accused, or similar fact evidence.

Inferences are factual findings based on common sense.

There is the long-standing inference that a person intends the natural consequences of one’s actions applies to many situations. However, this principle is merely an inference and does not go as far as being a legal presumption.

The inference will be made in most any circumstances except where there may be evidence to the contrary. Doubt may be raised as to the specific intent of the person where they suffer from mental illness or where intoxicated.

Generally speaking, the inference requires the assumption that the accused has the capacity to form intent.

Where circumstantial evidence is used to prove intent, there are three classes of circumstantial evidence:

1. prospectant (acts or omissions prior to offence);
2. concomitant (acts or omissions at the time of offence); and/or
3. retrospectant (after the fact acts or omissions).

Intending the Consequences of an Act

It has long been established that "a person who foresees that a consequence is certain or substantially certain to result from an act which he does in order to achieve some other purpose, intends that consequence." This is an inference, not a presumption. Its purpose is to determine intent in fact, and not to affix an intent based on reasonableness.

Thus, the purpose of the accused's action does not have to be to achieve the consequences in order to "intend" those consequences. The accused may very well not desire the consequences but still "intend" them where "he foresees that the consequence is certain or substantially certain to result from his conduct"

An "ulterior motive" does not need to be directly related to the consequences.

Transferred Intent

The common law doctrine of transferred intent will impose a necessary mens rea for a conviction for an act with unintended consequences. Where "harm follows that is of the legal kind as that intended" the accused will have been deemed to have intended the act.

Section 229(b) of the Criminal Code adopts transferred intent as a form of liability for murder.

Murder

229 Culpable homicide is murder...

(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or

...
R.S., 1985, c. C-46, s. 229; 2019, c. 25, s. 77.

– CCC (CanLII), (Jus.)

---

The doctrine of tranferred intent does not apply for attempted murder.

Recklessness

• see Recklessness

Intoxication

The inference of intending consequences of one's act must be considered after assessing "all of the evidence, including the evidence of intoxication."

Intoxication is only relevant insofar as it affects "the accused's capacity to form the requisite intent" to commit the offence.

Where evidence shows that the accused acted involuntary due to intoxication, negating intent on a general intent offence, proof of voluntary intoxication may in certain cases substitute for proof of voluntariness. This "Leary rule" of substitution is typically available to offences of any general intent offence. This was not considered applicable to assault based offence including sexual assault. As a result s. 33.1 was enacted removing the intoxication defence from certain offences.

Knowledge

• Knowledge and Wilful Blindness

Examples of Intent

Intent to Kill

In absence of any explanation, the only intent from firing a gun at a person is an intention to kill.

See Also

• Criminal Negligence
• Abandonment (Defence)
• Accident and Mistake